Become a Partner

Become a myallocator partner to reap the benefits of syncing and managing rates
and availability with ease. With our simple interface and real time updates, we help
your clients save time and increase their revenue, which in turn makes you their
hero and positions you for growth and expanding your business.

scroll_bottom

We look forward to working with you!

Hotels and/or their partners are responsible for paying the advertised price for myallocator. Standard integration times range from one to three weeks on average. At our sole discretion, we reserve the right to charge an integration and certification fee to onboard new partners to the myallocator network.

Benefits Include

For Property Management Systems

  • Update rates and availability on all OTAs instantly
  • Receive more reservations and increase your customer’s revenue
  • Reduce customer’s time spent managing extranets
  • Mitigate overbooking risk

For Revenue Management Systems

  • Instant rate and availability updates
  • Easy to use interface for managing rates
  • Increase sales through easy to install booking widget

For Distribution Channels

  • More properties with real time inventory
  • Access to the property’s last available rooms
  • Transparency in managing inventory
  • Seamless integration

For Website Builders

  • Add value by inserting an easy to integrate booking widget
  • Allow customers to generate revenue through their website

How to Get Started

If your company is interested in integrating with us, please read our policies and fill out the form.

  • If you are an online travel agency please fill out our OTA integration form.
  • Legal Entity Name (i.e. Digital Arbitrage Inc.)
  • Please let us know what your technology stack looks like and the language / languages your application is written in. This will give us information to help you with your integration and get your questions answered quickly.
  • Please let us know what your connectivity project entails. Please be as detailed as possible. If you have a working demo please send us the link to the application. This will give us information to help us evaluate your integration request and priority among all of our requests.
  • You understand that we reserve the sole right to provide or not provide the API Service to any companies, partners, or individuals, in our sole discretion.

CONNECTIVITY AGREEMENT

This Connectivity Agreement (this Agreement) is made between Digital Arbitrage, Inc. a Delaware corporation, (the Channel Manager); and a corporation (the OTA Provider).  References to a “Party” under this Agreement means Channel Manager on the one hand and OTA Provider on the other hand.

Recitals

          Whereas, Channel Manager operates, either directly or through one or more wholly controlled entities, an online channel management system for bookings information (including, but not limited to rate and availability) at hotels, hostels and other such rentable properties through which (i) end users and property management system end users can manage online bookings information of their properties (or rooms therein), and (ii) the Channel Manager pushes the bookings information of the properties of such end users and property management system end users to online travel agencies through which visitors to such online travel agencies can make reservations at such properties (the “Channel Management System”);

          Whereas, OTA Provider renders certain online travel agency services (the “Online Travel Agency Services”) that provide access for third party end users of the Online Travel Agency Services (each such third party end user that accesses the Channel Management System, directly or indirectly, through the Online Travel Agency Services, an “OTA End User” and collectively, the “OTA End Users”) to bookings information (such as rate and availability) of third party hotels, hostels and other such rentable properties (such bookings information provided either directly by the property holder or through a property management system or a channel manager);

          Whereas, Channel Manager is willing to allow a Connection between the Channel Management System and the Online Travel Agency Services to allow OTA Provider to offer OTA End Users access to bookings information (such as rate and availability) of hotels, hostels and other such rentable properties made available to third party online travel agencies through the Channel Management System and, as applicable, to provide the Data of such OTA End Users to the applicable third party end users and property management system end users through the Channel Management System; and

          Whereas, in consideration of the foregoing premises, the parties have agreed to enter into and execute this Agreement which shall provide for the terms and conditions under which Channel Manager is willing to allow the Connection between the Channel Management System and the Online Travel Agency Services described herein.

          Now, Therefore, for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:

Agreement

1. DEFINITIONS

     1.1.    As used in this Agreement, the following defined terms have the meanings indicated below:

               1.1.1.      Channel Manager XML” means the XML connection between Channel Manager’s database and OTA Provider’s database.

               1.1.2.      Connection” means all XML connections, XML feeds, through XML, application programming interfaces or any other similar applications created, hosted and maintained by OTA Provider to connect the Online Travel Agency Services to the Channel Management System.

               1.1.3.      Customer Data” means all personal data (including, but not limited to, name, address, browser, email, credit card details and such other personally identifiable data) of OTA End Users and visitors of the OTA Provider’s website.

               1.1.4.      Data” means all data and information which is transmitted through the Online Travel Agency Services and retrieved from or provided to Channel Manager and/or OTA End User.

               1.1.5.      Defects” means any defectiveness, malfunction, deficiency, failure, bug, error, virus, disability, defect, breakdown, downtime, hacking activities, (D)DOS or similar attacks, Detrimental Materials, interruption or other irregularities which affect or may affect the integration with the Online Travel Agency Services, the Channel Management System, the Channel Manager XML, the Connection and the Server.

               1.1.6.      Detrimental Materials” means any materials which may have a detrimental, deleterious or adverse effect on the Channel Management System, the Channel Manager XML and the Channel Manager Server, including “worms”, “viruses”, “Trojan horses”, corrupted files, cracks, bugs, or unauthorized or hidden programs or other materials.

               1.1.7.      Error” means any reported and reproducible mistake, problem, bugs, defect, malfunction or deficiency which causes an incorrect or inadequate functioning or nonfunctioning of the Connection or Online Travel Agency Services or any deviation from any requirement(s) hereunder in relation to the same.

               1.1.8.      Outage” means any period of time during which the Online Travel Agency Services are not available for whatever reason.

               1.1.9.      Server” means the computer system of, or used, controlled or operated by Channel Manager, an OTA End User or OTA Provider (as applicable), including any database servers and web servers.

2. SCOPE AND PURPOSE OF THIS AGREEMENT

     2.1.   Connection; Data.  Channel Manager shall, on a non-exclusive basis in accordance with the terms and conditions as set out in this Agreement, render, make available to and allow OTA Provider to establish a Connection between the Channel Management System and the Online Travel Agency Services to allow OTA Provider to offer OTA End Users access to bookings information (such as rate and availability) of hotels, hostels and other such rentable properties made available to third party online travel agencies through the Channel Management System and, as applicable, to provide the Data of such OTA End Users to the applicable third party end users and property management system end users through the Channel Management System.

     2.2.   No partnership.  This Agreement is not intended, nor should anything herein or in any of the arrangements contemplated herein, be construed, to create a joint venture or the relationship of partners, partnership or principal and agent between or among the Parties. Unless the Parties agree otherwise in writing, none of them shall (i) enter into any contract or commitment with third parties as agent for or on behalf of the other Party, (ii) describe or present itself as such an agent or in any way hold itself out as being such an agent, or (iii) act on behalf of or represent the other Party in any manner, or for any purpose.

     2.3.   No information obligation or liability. Parties agree and acknowledge that in the event of any wholly or partial outages, downtime, interruption, breakdown, disablement, disconnection or unavailability (whether for maintenance, updates or otherwise) of the Channel Management System, Online Travel Agency Services, Connection or Server, or in the event of a contemplated change, modification or update in respect of the Channel Management System, Online Travel Agency Services, Connection or Server, or in the event of any other questions, complaints or escalation of a problem, Channel Manager is under no obligation whatsoever or howsoever to inform, notify or report to OTA Provider in advance, during or after of any such event, matter, circumstance, fact or action taken in respect of such event, matter or circumstance or keep OTA Provider informed or otherwise respond or take any follow up action upon request of OTA Provider.  Any action, follow up, response taken in this respect towards OTA Provider is at Channel Manager sole discretion in time, effort or otherwise and without any legal or contractual obligation.  Upon the occurrence of any such event, Channel Manager shall have no liability for any direct or indirect claim arising out of the occurrence of such event.

3. DISCONNECTION; OTA END USERS

     3.1.   Disconnection and removal OTA End User(s). Channel Manager shall have the right to disable and disconnect the Connection or any OTA End User at any time in its sole discretion. OTA Provider shall disable and disconnect the Online Travel Agency Services in respect of an OTA End User as they relate to the Channel Management System upon first request of Channel Manager or the relevant OTA End User (if applicable).

     3.2.   General covenants and undertakings.  Channel Manager acknowledges that the intellectual property rights in any custom code produced by or for OTA Provider for integrating the Online Travel Agency Services shall remain the exclusive property of OTA Provider.

4. OTA PROVIDER COVENANTS, OBLIGATIONS AND WARRANTIES

     4.1.   General covenants, undertakings and obligations.

              4.1.1.      OTA Provider acknowledges that the integration of the Channel Management System into OTA Provider’s Online Travel Agency Services may result in potentially harmful machine generated request loads being placed on the Channel Manager Servers and/or the Servers of the OTA End User(s). Therefore, OTA Provider hereby agrees, covenants and undertakes that it shall for the term of this Agreement:

                            (i)               use its best efforts to ensure that the Online Travel Agency Services are accessible and available 24 hours per day, 7 days per week except for (a) scheduled Outage for maintenance, update or repair, and (b) urgent and material repairs, all in accordance with Clause 5.2;

                            (ii)             on a 24/7 basis monitor the Online Travel Agency Services and in the event of a wholly, partly and/or temporary breakdown, downtime, failure or other irregularities, promptly take all such actions as may reasonably expected from OTA Provider (including notification of Channel Manager in accordance with Clause 5.3);

                            (iii)           forthwith comply with all requests of Channel Manager relating to the integration, upgrade, operation, maintenance, interruption and withdrawal of the Online Travel Agency Services;

                            (iv)           make available to Channel Manager, process, transmit and display all Data completely, accurately, correctly, consistently and in sync with retrieved and provided Data (as made available or provided by the OTA End Users);

                            (v)             to process all card holder data in accordance with the rules of the relevant credit card providers and in any event to refrain from storing any such details locally or on OTA Provider’s Servers (and under no circumstance on any Channel Manager Server);

                            (vi)           use the highest industry standards and market practices in respect of firewalls and protection devices in order to (a) prevent unauthorized access and/or authorized communications in respect of the Servers, the Online Travel Agency Services and the Data, (b) safeguard and protect the Servers, the Online Travel Agency Services and the Data and (c) safeguard and protect all Customer Data;

                            (vii)         OTA Provider shall not without the prior written approval of Channel Manager (a) enter into any contract or commitment with an OTA End User as agent for, representative of or on behalf of Channel Manager, (b) describe or present itself as such or in any way hold itself out as being such an agent, (c) act on behalf of or represent Channel Manager in any manner, or for any purpose, (d) disclose, refer to or use this Agreement and the relationship between Channel Manager and OTA Provider, and/or (e) use or promote the Channel Manager brand (which includes trade name, trade mark, domain name) when contacting, soliciting or contracting OTA End User;

                            (viii)       OTA Provider shall not (a) make any static copy of the Data, and (b) programmatically evaluate and extract information from any part of the Channel Manager website (e.g. screen scrape);

                            (ix)           comply with and adhere to all specifications, requirements, instructions and guidelines as further from time to time issued or provided by Channel Manager;

                            (x)             to use commercially reasonable efforts to ensure that its computer system, database servers and web servers (including its part of the connection with and integration of the Channel Management System, the Channel Manager XML and the Channel Manager Server) do not and will not contain any Detrimental Materials that may or shall cause damage to the Channel Management System, the Channel Manager XML and/or the Channel Manager Server or render inoperable software, hardware or security measures;

                            (xi)           to promptly notify Channel Manager of any Defects; and

                            (xii)         to ensure that the Servers, Connection and database of OTA Provider (including its part of integration with and use of the Channel Manager XML and the Online Travel Agency Services) are free of any Defects.

              4.1.2.      OTA Provider acknowledges that it is solely responsible for the protection and security of all Customer Data which it processes within the context of the Online Travel Agency Services. In this respect, OTA Provider shall provide Channel Manager with all such information, data, co-operation, assistance and access to its premises (during regular business hours and upon reasonable advance notice), management and the books and records of account, documents, files and papers and information stored electronically as Channel Manager may request in order to (i) monitor and discuss compliance by OTA Provider with any applicable standards (including, but not limited to, the Payment Card Industry standards), or (ii) fulfill its compliancy requirements with any applicable standards in a duly and timely manner.

              4.1.3.      In order to provide secure and reliable Online Travel Agency Services, OTA Provider shall:

                            (i)               implement a 24/7 monitoring system;

                            (ii)             use an advance alert system;

                            (iii)           conduct daily back up procedures; and

                            (iv)           duly and diligently process all data, all in accordance with highest industry standards and ethical codes of practice in respect of compliancy, safeguarding/protecting and security.

              4.1.4.      OTA Provider shall not directly or indirectly promote, solicit, contact or persuade or attempt to persuade any potential OTA End Users which are a partner of Channel Manager to use, engage or offer the services as rendered by OTA Provider.

     4.2.   Warranties.

              4.2.1.      OTA Provider hereby represents and warrants to Channel Manager that for the term of this Agreement:

                            (i)               it has, and shall retain relevant staff with the appropriate and up-to-date level of expertise and experience to enable and provide the Online Travel Agency Services;

                            (ii)             the Online Travel Agency Services will be supplied and supported by appropriately qualified and trained personnel acting with due skill, care and diligence;

                            (iii)           it holds and has complied with all permits, licenses and other governmental authorizations necessary for conducting, carrying out and continuing its operations and business and it owns, controls or has obtained any and all necessary rights, licenses, permits and clearances for all the rights, title and interest in and to Online Travel Agency Services;

                            (iv)           the Online Travel Agency Services shall be rendered, performed, executed, maintained, offered and operated (a) in compliance with all laws, rules and regulations and with the highest industry standards and ethical codes of practice, (b) with reasonable skill and care and with promptness and diligence, and (c) executed in a good, professional and workmanlike manner;

                            (v)             the Online Travel Agency Services do not infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party and do not result in any harm, injury or damage to a third party or any additional payment obligation not contemplated herein;

                            (vi)           it will collect, use, transmit, store and safeguard (as applicable) the Data (including Customer Data) in accordance with all applicable laws and regulations (including but not limited to laws governing privacy and data protection) and will not sell, disclose, use, divulge, transfer, make available, publish, transmit or offer such information to any third party (other than for the purpose of fulfilling its obligations under this Agreement) and insofar applicable;

                            (vii)         the Online Travel Agency Services (or any part thereof), including the Connection, do not include or require any use of any freeware or open source software (such as, without limitation, software licensed under GPL, BSD, Mozilla, NOKOS or other like terms and conditions) or does not interface with or be linked to the same; and

                            (viii)       the Online Travel Agency Services (or any part thereof), including the Connection, are free of any Errors.

5. TECHNICAL INTEGRATION, CHANGES AND OUTAGES

     5.1.   Integration, changes and restrictions.

              5.1.1.      OTA Provider shall provide Channel Manager with all relevant technical information necessary to establish the Connection and enable Channel Manager to customize and integrate the Channel Management System into OTA Provider’s existing services.

              5.1.2.      Channel Manager shall use reasonable efforts provide OTA Provider with 5 business days prior written notice of any material change to or requested in respect of the specification of the Online Travel Agency Services that may affect the integration. With regards to required hardware / system resources, the OTA Provider will ensure sufficient level of system and hardware resources to be able to comply with any technical requirements for establishing the Connection that may be provided by Channel Manager from time to time.

              5.1.3.      Upon request of Channel Manager, OTA Provider shall cooperate with and assist Channel Manager and implement and make such changes as may be required by Channel Manager in order to optimize the integration and the Connection with the Channel Manager XML and the Channel Manager Server and improve the Connection and/ or the Online Travel Agency Services.

              5.1.4.      Channel Manager may block or limit service requests from OTA Provider (i) in the event that OTA Provider’s system imposes an unreasonable capacity burden on the Channel Manager Servers, or (ii) in the event of a material, detrimental or adverse event, change, matter, circumstance or situation that may affect the Connection, the Channel Manager Servers, the Data and/or Channel Manager XML. Channel Manager reserves the right to charge OTA Provider reasonable costs of increasing capacity in order to meet higher request levels from OTA Provider.

              5.1.5.      OTA Provider will use commercially reasonable efforts not to initiate or try to initiate any connection or contact to the Channel Manager Servers for the purpose of rendering the Online Travel Agency Services if the following conditions are met or fulfilled:

                            (i)               IT-related errors were observed in the last 10 minutes (i.e. secured communications channel is not available, the response time is over 1 sec); or

                            (ii)             communication does not comply with the general parameters of the IT communication matching industry standards.

              5.1.6.      Channel Manager will provide OTA Provider with a user ID and password which allows OTA Provider to connect to the Channel Manager Servers.  OTA Provider shall safeguard, protect and keep the user ID and password strictly confidential and safely stored and not disclose it to any person other than those who need to have access to the Channel Manager Server. OTA Provider shall immediately notify Channel Manager of any actual or suspected security breach or improper use.

     5.2.   Planned Outages for maintenance, update and repair.

              5.2.1.      OTA Provider shall use reasonable efforts to procure and undertake that Outages for planned maintenance, update and repair shall not exceed a reasonable and necessary duration.

              5.2.2.      Except in the case of an emergency, OTA Provider shall provide Channel Manager with at least 10 business days advance notice of any planned Outage for maintenance, update or repair.

              5.2.3.      Except in the case of an emergency, OTA Provider shall give advance notice of scheduled downtime of no less than 24 hours to Channel Manager as planned Outage for maintenance, update or repair.

              5.2.4.      OTA Provider shall use reasonable efforts to ensure that the software or the Online Travel Agency Services will be available for at least 99.90% of the time during each month.

     5.3.   Unplanned Outage.  In the event of any unplanned Outage or any downtime, interruption, breakdown or unavailability, for whatever reason, of the Online Travel Agency Services, OTA Provider Server and/or the Connection (to the extent controlled by OTA Provider), OTA Provider shall immediately after becoming aware notify Channel Manager of such situation, event or matter and inform and keep informed Channel Manager of all such relevant information as requested by or as may be relevant for Channel Manager.

     5.4.   Test runs and certification.

              5.4.1.      Except as otherwise set forth in this Section 5.4, no test runs will be conducted or performed by a Party in respect of the Channel Management System, Online Travel Agency Services, the Connection or otherwise without the prior written approval of the other Party.

              5.4.2.      The Connection will not be set live without the prior written consent of Channel Manager.

              5.4.3.      Parties agree that Channel Manager shall test, verify and certify the undisrupted and smooth integration, operation, availability, capacity, process, use and such other elements and certification criteria (as determined by Channel Manager) of the Online Travel Agency Services, OTA Provider Server and the Connection:

                            (i)               prior to the establishment of the Connection;

                            (ii)             after any correction, alteration, modification, improvement, update, upgrade or  other adjustments of the Channel Management System, Online Travel Agency Services, the Connection and/or OTA Provider or Channel Manager Server; and

                            (iii)           after any Outage or any downtime, interruption, breakdown or unavailability for whatever reason of the Channel Management System, Online Travel Agency Services, the Connection and/or OTA Provider Server or Channel Manager Server.

              5.4.4.      OTA Provider shall fully cooperate and provide Channel Manager (if reasonably required) with all such information, data, co-operation, assistance and access to systems, servers, books and records of account, documents, files and papers and information stored electronically as Channel Manager may reasonably request for the purpose of completing the tests and certification in a duly and timely manner. Any information or documentation disclosed under or pursuant to this Clause 5.4 shall be regarded as Confidential Information.

              5.4.5.      For the avoidance of doubt, any successful test run, certification or other consent (tacitly or explicitly) given by Channel Manager or acceptance of OTA Provider as the party rendering the Online Travel Agency Services shall not constitute, imply or be regarded as (i) any endorsement, approval or acceptance of (the level or quality of) the Channel Management System, Online Travel Agency Services, the Connection and/or OTA Provider Server or Channel Manager Server, (ii) any waiver by Channel Manager of right of Channel Manager under this Agreement, (iii) any waiver of or release by Channel Manager of any obligation, covenant, warranty, guarantee, undertaking or liability of or action required by OTA Provider under or pursuant to this Agreement, or (iv) any comfort, guarantee or warranty, whether express or implied, of the absence of any (threatening or potential) Error or Outage.

6. AUDIT RIGHT

     6.1.   Audit right.

              6.1.1.      If Channel Manager in good faith has reason to believe that OTA Provider has breached its covenants, warranties, undertakings or obligations under this Agreement, Channel Manager may audit such records, systems and books (of account) of Company (including OTA Provider Server) for the purpose of verification, review and investigation of the breach (the “Audit”in accordance with the following:

                            (i)               the audit shall be conducted at the premises of OTA Provider and will be conducted on business days during regular business hours;

                            (ii)             OTA Provider shall provide Channel Manager with all such information, data, cooperation, assistance and access to systems, servers, books and records of accounts, documents, files and papers and information stored electronically as Channel Manager may reasonably request for the purpose of completing the Audit in duly and timely matter;

                            (iii)           Channel Manager will use its commercially reasonable efforts cooperate with OTA Provider in good faith to avoid and limit any disruption caused by such audits to OTA Provider’s business and operations; and

                            (iv)           Any information disclosed, made available or provided access to under or pursuant to an Audit shall be regarded as Confidential Information of OTA Provider.

7. INDEMNIFICATION AND DISCLAIMER

     7.1.   Indemnification.

              7.1.1.      OTA Provider shall be liable towards, and agrees to fully indemnify, compensate and hold harmless, and keep indemnified and harmless, Channel Manager against all direct and indirect damages, losses, costs, demands, charges, actions, expenses, obligations, claims of any kind, interest, penalties, legal proceedings and any other liabilities of whatsoever nature suffered, paid or incurred by Channel Manager (including all reasonable lawyer(s) or attorney(s) fees and expenses paid or incurred by Channel Manager) arising out or in connection with:

                            (i)               any breach by OTA Provider of its obligations under this Agreement; or

                            (ii)             any interruption to or unavailability or breakdown of (a) the Channel Manager Servers, or (b) the provision of the services of Channel Manager (directly or indirectly) to the OTA End Users, affiliate (distribution) partners or consumers which is caused by or attributable to OTA Provider due to its fault or negligence, or incorrect integration or (subsequent) operation(s), or a breach of this Agreement.

     7.2.   Disclaimer.

              7.2.1.      Channel Manager does not make or give any representation, warranty, guarantee or any other form of comfort, express, implied or statutory, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability, title, non-infringement or fitness for a particular purpose regarding such subject matter. No representation or other affirmation of fact of or made by Channel Manager, including, without limitation, statements regarding capacity (restrictions), XML connection, security, compliancy, up-time, down-time, satisfactory quality, suitability for use, or performance of the services shall be deemed a warranty for any purpose or give rise to any liability of Channel Manager whatsoever or howsoever.

              7.2.2.      Channel Manager provides access to and operates the Channel Management System, the Channel Manager Server and the Channel Manager XML on an “as is” and “as available” basis. Channel Manager does not warrant or guarantee that the access to or use of the Channel Management System, the Channel Manager Server and the Channel Manager XML will be uninterrupted or error free. Channel Manager does not warrant the accuracy, reliability, completeness or timeliness of the Channel Management System, the Channel Manager Server and the Channel Manager XML (including any data or information received by OTA Provider under or pursuant to the Channel Management System, the Channel Manager Server and the Channel Manager XML).  Channel Manager makes no representation with respect to, and shall have no liability as a result of, the use of any Data provided to third party end users and property management system end users through the Channel Management System.

              7.2.3.      To the extent permitted by law, Channel Manager shall not be liable and hereby disclaims and excludes all liability (for any type of damages, losses (including direct, indirect, consequential, punitive, exemplary, special or other damages or losses or loss of production, loss of profit, loss of revenue, loss of contract, loss of date, loss of or damage to goodwill or reputation, loss of claim, wasted expenditure and business interruption), costs, indemnifications, expenses, claims, liabilities, penalties) towards and/or in respect of OTA Provider which is related to any performance or unavailability, breakdown, interruption, or downtime of the Data, any use of the Data (including any Customer Data) by any third party end users or property management system end users provided such Data through the Channel Management System, the Channel Manager XML, the Channel Manager Server and/or the Channel Management System or any other error, omission, defect, malfunction or other problem in respect of the Data, the Channel Manager XML, the Channel Manager Server and/or the Channel Management System.

8. TERM AND TERMINATION

     8.1.   Term, termination and suspension.

              8.1.1.      Unless agreed otherwise, this Agreement shall commence on the date hereof for indefinite period of time.

              8.1.2.      Each Party may terminate this Agreement with immediate effect at any time and for any reason, by written notice to the other Party.

              8.1.3.      Each Party may terminate this Agreement or suspend this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:

                            (i)               a material breach by the other Party of any term of this Agreement;

                            (ii)             filing of a request for bankruptcy or suspension of payment or similar action in  respect of the other Party, or

                            (iii)           a direct or indirect change of control in respect of the other Party.

              8.1.4.      This Agreement automatically terminates by operation of law in the event that there are no OTA End User to which the Online Travel Agency Services are made available.

     8.2.   Survival.  Upon termination, this Agreement shall absolutely and entirely terminate and cease to have effect.  Notwithstanding the foregoing, Section 9 and 10 shall survive any termination of this Agreement.

     8.3.   Change of control.  In the event of a direct or indirect change of control in respect of OTA Provider, OTA Provider shall promptly notify Channel Manager of such event or action.

     8.4.   Effect of termination.  In the event of termination or expiration of this Agreement, OTA Provider shall immediately (unless requested otherwise by Channel Manager):

                            (i)               Disable the Connection with Channel Manager;

                            (ii)             delete, destroy, disable and/or return (and cause to be deleted, destroyed, removed, disables and returned) all hard and soft copies of any Confidential Information of Channel Manager.

9. CONFIDENTIALITY

     9.1.   Confidential Information.  Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the “Confidential Information”). Confidential Information includes transaction volume, marketing and business plans, business, financial, technical and operational information, usage statistics, ranking data, information in respect of rate, product and availability parity, pricing policies, conversion data and volume of clickthroughs, and other related statistics, personal data of Guests, any software or information regarding software provided or used by Channel Manager in connection with this Agreement, the content and terms of this Agreement and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential. Confidential Information also includes the Data solely as it relates to the disclosure of the Data to any party other than any third party end users or property management system end users provided such Data through the Channel Management System.

     9.2.   Protect and safeguard Confidential Information.  Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement, (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the “Permitted Persons”) to maintain, the confidentiality and secrecy of the Confidential Information, (c) it shall disclose Confidential Information only to those Permitted Persons and who need to know such information in furtherance of this Agreement, (d) it shall not, and shall use prudent methods to ensure that Permitted Persons do not, copy, publish, transmit, reproduce, divulge, disclose, use or store in an unprotected retrieval system or data base (other than pursuant to the terms hereof) the Confidential Information, and (e) its shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.

     9.3.   Permitted disclosure.  Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no  obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority.

10. MISCELLANEOUS

     10.1.   Assignment.  Neither party shall be entitled to assign, transfer or encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party; provided, however that either Party may assign this Agreement without the prior written consent of the other Party in connection with a bona fide sale of such Party or sale of all or substantially all of the assets of such Party to a third party who is not a competitor of the other Party.

     10.2.   Notices.  All notices and communications must be in English, in writing, and save as set out otherwise in this Agreement, sent by facsimile, email or nationally recognized overnight air courier to the applicable facsimile number or address set out in this Agreement. Notices are deemed delivered and received upon successful facsimile transmission or one business day after the date of delivery by a recognized overnight air courier.

If to Channel Manager:

Digital Arbitrage, Inc.

7660 Fay Avenue, Suite H-321

La Jolla, CA 92037

Attn:  Adam Harris

Email: support@myallocator.com

     10.3.   Whole Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, offers, undertakings or statements regarding such subject matter.

     10.4.   Third party beneficiary. This Agreement is concluded for the benefit of the Parties and their respective successors and permitted assigns, and nothing herein is intended to or shall implicitly confer upon any other party any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. There are no third-party beneficiaries to this Agreement.

     10.5.   Counterparts. This Agreement may be executed on faxed or scanned copies and entered into by Party by way of executing a separate counterpart, but it shall not be effective until each Party has executed at least one counterpart. Each counterpart, when executed, shall constitute an original, and all the counterparts shall together constitute one and the same instrument.

     10.6.   Costs. Each Party shall bear its own costs, charges and expenses in connection with the entering into, execution, implementation of and performance under this Agreement.  Access to the Online Travel Agency Services for the purposes of the Connection shall be rendered to Channel Manager free of charge.

     10.7.   Burden of Proof.  Parties agree and acknowledge that in the event of an (alleged or threatening) infringement or breach by OTA Provider of its obligations under this Agreement, the burden of proof is carried by OTA Provider. Channel Manager carries the benefit of assumption and OTA Provider needs to provide and deliver sufficient and satisfactory evidence (i.e. conclusive and irrefutable) in order to defend or reject a claim.

     10.8.   Governing Law.This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to a contract executed and performed in such state, without giving effect to the conflicts of laws principles thereof.  Each of the parties hereto irrevocably consents to the exclusive jurisdiction of any court located within the State of California in connection with any matter based upon or arising out of this Agreement or the matters contemplated hereby and it agrees that process may be served upon it in any manner authorized by the laws of the State of California for such Persons and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and such process.

 

In Witness Whereof, the parties hereto have caused their duly authorized representatives to execute this Agreement as of the Effective Date.

CONNECTIVITY AGREEMENT

This Connectivity Agreement (this Agreement) by and between Digital Arbitrage, Inc. a Delaware corporation, sole owner of the trademark and product MyAllocator (the Channel Manager); and  the users self-identified through the information provided through the form submitted at www.myallocator.com/becomeapartner (the non-OTA Provider).  References to a “Party” under this Agreement means Channel Manager on the one hand and non-OTA Provider on the other hand.

Recitals

Whereas, Channel Manager operates, either directly or through one or more wholly controlled entities, an online channel management system for bookings information (including, but not limited to rate and availability) at hotels, hostels and other such rentable properties through which (i) end users and property management system end users can manage online bookings information of their properties (or rooms therein), and (ii) the Channel Manager pushes the bookings information of the properties of such end users and property management system end users to online travel agencies through which visitors to such online travel agencies can make reservations at such properties (the “Channel Management System”);

Whereas, non-OTA Provider renders certain Online Services  (the “Online Services ”) that provide access for third party end users of the Online Services  (each such third party end user that accesses the Channel Management System, directly or indirectly, through the Online Services , an “non-OTA End User” and collectively, the “non-OTA End Users”) to bookings information (such as rate and availability) of third party hotels, hostels and other such rentable properties (such bookings information provided either directly by the property holder or through a property management system or a channel manager);

Whereas, Channel Manager is willing to allow a Connection between the Channel Management System and the Online Services  to allow non-OTA Provider to offer non-OTA End Users access to bookings information (such as rate and availability) of hotels, hostels and other such rentable properties made available to third party online travel agencies through the Channel Management System and, as applicable, to provide the Data of such non-OTA End Users to the applicable third party end users and property management system end users through the Channel Management System; and

Whereas, in consideration of the foregoing premises, the parties have agreed to enter into and execute this Agreement which shall provide for the terms and conditions under which Channel Manager is willing to allow the Connection between the Channel Management System and the Online Services  described herein.

Now, Therefore, for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:

Agreement

  1. DEFINITIONS
    1. As used in this Agreement, the following defined terms have the meanings indicated below:
      1. Channel Manager XML” means the XML connection between Channel Manager’s database and Non-OTA Provider’s database.
      2. Connection” means all XML connections, XML feeds, through XML, application programming interfaces or any other similar applications created, hosted and maintained by Non-OTA Provider to connect the Online Services to the Channel Management System.
      3. Customer Data” means all personal data (including, but not limited to, name, address, browser, email, credit card details and such other personally identifiable data) of Non-OTA End Users and visitors of the Non-OTA Provider’s website.
      4. Data” means all data and information which is transmitted through the Online Services and retrieved from or provided to Channel Manager and/or Non-OTA End User.
      5. Defects” means any defectiveness, malfunction, deficiency, failure, bug, error, virus, disability, defect, breakdown, downtime, hacking activities, (D)DOS or similar attacks, Detrimental Materials, interruption or other irregularities which affect or may affect the integration with the Online Services , the Channel Management System, the Channel Manager XML, the Connection and the Server.
      6. Detrimental Materials” means any materials which may have a detrimental, deleterious or adverse effect on the Channel Management System, the Channel Manager XML and the Channel Manager Server, including “worms”, “viruses”, “Trojan horses”, corrupted files, cracks, bugs, or unauthorized or hidden programs or other materials.
      7. Error” means any reported and reproducible mistake, problem, bugs, defect, malfunction or deficiency which causes an incorrect or inadequate functioning or nonfunctioning of the Connection or Online Services or any deviation from any requirement(s) hereunder in relation to the same.
      8. Outage” means any period of time during which the Online Services are not available for whatever reason.
      9. Server” means the computer system of, or used, controlled or operated by Channel Manager, a Non-OTA End User or Non-OTA Provider (as applicable), including any database servers and web servers.
  1. SCOPE AND PURPOSE OF THIS AGREEMENT
    1. Connection; Data. Channel Manager shall, on a non-exclusive basis in accordance with the terms and conditions as set out in this Agreement, render, make available to and allow Non-OTA Provider to establish a Connection between the Channel Management System and the Online Services to allow Non-OTA Provider to offer Non-OTA End Users access to bookings information (such as rate and availability) of hotels, hostels and other such rentable properties made available to third party online travel agencies through the Channel Management System and, as applicable, to provide the Data of such Non-OTA End Users to the applicable third party end users and property management system end users through the Channel Management System.
    2. No partnership. This Agreement is not intended, nor should anything herein or in any of the arrangements contemplated herein, be construed, to create a joint venture or the relationship of partners, partnership or principal and agent between or among the Unless the Parties agree otherwise in writing, none of them shall (i) enter into any contract or commitment with third parties as agent for or on behalf of the other Party, (ii) describe or present itself as such an agent or in any way hold itself out as being such an agent, or (iii) act on behalf of or represent the other Party in any manner, or for any purpose.
    3. No information obligation or liability. Parties agree and acknowledge that in the event of any wholly or partial outages, downtime, interruption, breakdown, disablement, disconnection or unavailability (whether for maintenance, updates or otherwise) of the Channel Management System, Online Services, Connection or Server, or in the event of a contemplated change, modification or update in respect of the Channel Management System, Online Services, Connection or Server, or in the event of any other questions, complaints or escalation of a problem, Channel Manager is under no obligation whatsoever or howsoever to inform, notify or report to Non-OTA Provider in advance, during or after of any such event, matter, circumstance, fact or action taken in respect of such event, matter or circumstance or keep Non-OTA Provider informed or otherwise respond or take any follow up action upon request of Non-OTA Provider. Any action, follow up, response taken in this respect towards Non-OTA Provider is at Channel Manager sole discretion in time, effort or otherwise and without any legal or contractual obligation.  Upon the occurrence of any such event, Channel Manager shall have no liability for any direct or indirect claim arising out of the occurrence of such event.
  2. DISCONNECTION; Non-OTA END USERS
    1. Disconnection and removal Non-OTA End User(s). Channel Manager shall have the right to disable and disconnect the Connection or any Non-OTA End User at any time in its sole discretion. non-OTA Provider shall disable and disconnect the Online Services in respect of an non-OTA End User as they relate to the Channel Management System upon first request of Channel Manager or the relevant non-OTA End User (if applicable).
    2. General covenants and undertakings. Channel Manager acknowledges that the intellectual property rights in any custom code produced by or for non-OTA Provider for integrating the Online Services shall remain the exclusive property of non-OTA Provider.
  3. non-OTA PROVIDER COVENANTS, OBLIGATIONS AND WARRANTIES
    1. General covenants, undertakings and obligations.
      1. non-OTA Provider acknowledges that the integration of the Channel Management System into non-OTA Provider’s Online Services may result in potentially harmful machine generated request loads being placed on the Channel Manager Servers and/or the Servers of the non-OTA End User(s). Therefore, non-OTA Provider hereby agrees, covenants and undertakes that it shall for the term of this Agreement:
        1. use its best efforts to ensure that the Online Services are accessible and available 24 hours per day, 7 days per week except for (a) scheduled Outage for maintenance, update or repair, and (b) urgent and material repairs, all in accordance with Clause 5.2;
        2. on a 24/7 basis monitor the Online Services and in the event of a wholly, partly and/or temporary breakdown, downtime, failure or other irregularities, promptly take all such actions as may reasonably expected from non-OTA Provider (including notification of Channel Manager in accordance with Clause 5.3);
        3. forthwith comply with all requests of Channel Manager relating to the integration, upgrade, operation, maintenance, interruption and withdrawal of the Online Services;
        4. make available to Channel Manager, process, transmit and display all Data completely, accurately, correctly, consistently and in sync with retrieved and provided Data (as made available or provided by the non-OTA End Users);
        5. to process all card holder data in accordance with the rules of the relevant credit card providers and in any event to refrain from storing any such details locally or on non-OTA Provider’s Servers (and under no circumstance on any Channel Manager Server);
        6. use the highest industry standards and market practices in respect of firewalls and protection devices in order to (a) prevent unauthorized access and/or authorized communications in respect of the Servers, the Online Services and the Data, (b) safeguard and protect the Servers, the Online Services and the Data and (c) safeguard and protect all Customer Data;
        7. non-OTA Provider shall not without the prior written approval of Channel Manager (a) enter into any contract or commitment with an non-OTA End User as agent for, representative of or on behalf of Channel Manager, (b) describe or present itself as such or in any way hold itself out as being such an agent, (c) act on behalf of or represent Channel Manager in any manner, or for any purpose, (d) disclose, refer to or use this Agreement and the relationship between Channel Manager and non-OTA Provider, and/or (e) use or promote the Channel Manager brand (which includes trade name, trade mark, domain name) when contacting, soliciting or contracting non-OTA End User;
        8. non-OTA Provider shall not (a) make any static copy of the Data, and (b) programmatically evaluate and extract information from any part of the Channel Manager website (e.g. screen scrape);
        9. comply with and adhere to all specifications, requirements, instructions and guidelines as further from time to time issued or provided by Channel Manager;
        10. to use commercially reasonable efforts to ensure that its computer system, database servers and web servers (including its part of the connection with and integration of the Channel Management System, the Channel Manager XML and the Channel Manager Server) do not and will not contain any Detrimental Materials that may or shall cause damage to the Channel Management System, the Channel Manager XML and/or the Channel Manager Server or render inoperable software, hardware or security measures;
        11. to promptly notify Channel Manager of any Defects; and
        12. to ensure that the Servers, Connection and database of non-OTA Provider (including its part of integration with and use of the Channel Manager XML and the Online Services ) are free of any Defects.
      2. non-OTA Provider acknowledges that it is solely responsible for the protection and security of all Customer Data which it processes within the context of the Online Services. In this respect, non-OTA Provider shall provide Channel Manager with all such information, data, co-operation, assistance and access to its premises (during regular business hours and upon reasonable advance notice), management and the books and records of account, documents, files and papers and information stored electronically as Channel Manager may request in order to (i) monitor and discuss compliance by non-OTA Provider with any applicable standards (including, but not limited to, the Payment Card Industry standards), or (ii) fulfill its compliancy requirements with any applicable standards in a duly and timely manner.
      3. In order to provide secure and reliable Online Services, non-OTA Provider shall:
        1. implement a 24/7 monitoring system;
        2. use an advance alert system;
        3. conduct daily back up procedures; and
        4. duly and diligently process all data, all in accordance with highest industry standards and ethical codes of practice in respect of compliancy, safeguarding/protecting and security.
      4. non-OTA Provider shall not directly or indirectly promote, solicit, contact or persuade or attempt to persuade any potential non-OTA End Users which are a partner of Channel Manager to use, engage or offer the services as rendered by non-OTA Provider.
      1. non-OTA Provider hereby represents and warrants to Channel Manager that for the term of this Agreement:
        1. it has, and shall retain relevant staff with the appropriate and up-to-date level of expertise and experience to enable and provide the Online Services;
        2. the Online Services will be supplied and supported by appropriately qualified and trained personnel acting with due skill, care and diligence;
        3. it holds and has complied with all permits, licenses and other governmental authorizations necessary for conducting, carrying out and continuing its operations and business and it owns, controls or has obtained any and all necessary rights, licenses, permits and clearances for all the rights, title and interest in and to Online Services;
        4. the Online Services shall be rendered, performed, executed, maintained, offered and operated (a) in compliance with all laws, rules and regulations and with the highest industry standards and ethical codes of practice, (b) with reasonable skill and care and with promptness and diligence, and (c) executed in a good, professional and workmanlike manner;
        5. the Online Services do not infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party and do not result in any harm, injury or damage to a third party or any additional payment obligation not contemplated herein;
        6. it will collect, use, transmit, store and safeguard (as applicable) the Data (including Customer Data) in accordance with all applicable laws and regulations (including but not limited to laws governing privacy and data protection) and will not sell, disclose, use, divulge, transfer, make available, publish, transmit or offer such information to any third party (other than for the purpose of fulfilling its obligations under this Agreement) and insofar applicable;
        7. the Online Services (or any part thereof), including the Connection, do not include or require any use of any freeware or open source software (such as, without limitation, software licensed under GPL, BSD, Mozilla, NOKOS or other like terms and conditions) or does not interface with or be linked to the same; and
        8. the Online Services (or any part thereof), including the Connection, are free of any Errors.
  1. TECHNICAL INTEGRATION, CHANGES AND OUTAGES
    1. Integration, changes and restrictions.
      1. non-OTA Provider shall provide Channel Manager with all relevant technical information necessary to establish the Connection and enable Channel Manager to customize and integrate the Channel Management System into non-OTA Provider’s existing services.
      2. Channel Manager shall use reasonable efforts to provide the non-OTA Provider with 5 business days prior written notice of any material change to or requested in respect of the specification of the Online Services that may affect the integration. With regards to required hardware / system resources, the non-OTA Provider will ensure sufficient level of system and hardware resources to be able to comply with any technical requirements for establishing the Connection that may be provided by Channel Manager from time to time.
      3. Upon request of Channel Manager, non-OTA Provider shall cooperate with and assist Channel Manager and implement and make such changes as may be required by Channel Manager in order to optimize the integration and the Connection with the Channel Manager XML and the Channel Manager Server and improve the Connection and/ or the Online Services.
      4. Channel Manager may block or limit service requests from non-OTA Provider (i) in the event that non-OTA Provider’s system imposes an unreasonable capacity burden on the Channel Manager Servers, or (ii) in the event of a material, detrimental or adverse event, change, matter, circumstance or situation that may affect the Connection, the Channel Manager Servers, the Data and/or Channel Manager XML. Channel Manager reserves the right to charge non-OTA Provider reasonable costs of increasing capacity in order to meet higher request levels from non-OTA Provider.
      5. non-OTA Provider will use commercially reasonable efforts not to initiate or try to initiate any connection or contact to the Channel Manager Servers for the purpose of rendering the Online Services if the following conditions are met or fulfilled:
        1. IT-related errors were observed in the last 10 minutes (i.e. secured communications channel is not available, the response time is over 1 sec); or
        2. communication does not comply with the general parameters of the IT communication matching industry standards.
      6. Channel Manager will provide non-OTA Provider with a user ID and password which allows non-OTA Provider to connect to the Channel Manager Servers. non-OTA Provider shall safeguard, protect and keep the user ID and password strictly confidential and safely stored and not disclose it to any person other than those who need to have access to the Channel Manager Server. non-OTA Provider shall immediately notify Channel Manager of any actual or suspected security breach or improper use.
    2. Planned Outages for maintenance, update and repair.
      1. non-OTA Provider shall use reasonable efforts to procure and undertake that Outages for planned maintenance, update and repair shall not exceed a reasonable and necessary duration.
      2. Except in the case of an emergency, non-OTA Provider shall provide Channel Manager with at least 10 business days advance notice of any planned Outage for maintenance, update or repair.
      3. Except in the case of an emergency, non-OTA Provider shall give advance notice of scheduled downtime of no less than 24 hours to Channel Manager as planned Outage for maintenance, update or repair.
      4. non-OTA Provider shall use reasonable efforts to ensure that the software or the Online Services will be available for at least 99.90% of the time during each month.
    3. Unplanned Outage. In the event of any unplanned Outage or any downtime, interruption, breakdown or unavailability, for whatever reason, of the Online Services, non-OTA Provider Server and/or the Connection (to the extent controlled by non-OTA Provider), non-OTA Provider shall immediately after becoming aware notify Channel Manager of such situation, event or matter and inform and keep informed Channel Manager of all such relevant information as requested by or as may be relevant for Channel Manager.
    4. Test runs and certification.
      1. Except as otherwise set forth in this Section 5.4, no test runs will be conducted or performed by a Party in respect of the Channel Management System, Online Services, the Connection or otherwise without the prior written approval of the other Party.
      2. The Connection will not be set live without the prior written consent of Channel Manager.
      3. Parties agree that Channel Manager shall test, verify and certify the undisrupted and smooth integration, operation, availability, capacity, process, use and such other elements and certification criteria (as determined by Channel Manager) of the Online Services, non-OTA Provider Server and the Connection:
        1. prior to the establishment of the Connection;
        2. after any correction, alteration, modification, improvement, update, upgrade or other adjustments of the Channel Management System, Online Services, the Connection and/or non-OTA Provider or Channel Manager Server; and
        3. after any Outage or any downtime, interruption, breakdown or unavailability for whatever reason of the Channel Management System, Online Services, the Connection and/or non-OTA Provider Server or Channel Manager Server.
      4. non-OTA Provider shall fully cooperate and provide Channel Manager (if reasonably required) with all such information, data, co-operation, assistance and access to systems, servers, books and records of account, documents, files and papers and information stored electronically as Channel Manager may reasonably request for the purpose of completing the tests and certification in a duly and timely manner. Any information or documentation disclosed under or pursuant to this Clause 5.4 shall be regarded as Confidential Information.
      5. For the avoidance of doubt, any successful test run, certification or other consent (tacitly or explicitly) given by Channel Manager or acceptance of non-OTA Provider as the party rendering the Online Services shall not constitute, imply or be regarded as (i) any endorsement, approval or acceptance of (the level or quality of) the Channel Management System, Online Services, the Connection and/or non-OTA Provider Server or Channel Manager Server, (ii) any waiver by Channel Manager of right of Channel Manager under this Agreement, (iii) any waiver of or release by Channel Manager of any obligation, covenant, warranty, guarantee, undertaking or liability of or action required by non-OTA Provider under or pursuant to this Agreement, or (iv) any comfort, guarantee or warranty, whether express or implied, of the absence of any (threatening or potential) Error or Outage.
  1. AUDIT RIGHT
    1. Audit right.
      1. If Channel Manager in good faith has reason to believe that non-OTA Provider has breached its covenants, warranties, undertakings or obligations under this Agreement, Channel Manager may audit such records, systems and books (of account) of Company (including non-OTA Provider Server) for the purpose of verification, review and investigation of the breach (the “Audit” in accordance with the following:
        1. the audit shall be conducted at the premises of non-OTA Provider and will be conducted on business days during regular business hours;
        2. non-OTA Provider shall provide Channel Manager with all such information, data, cooperation, assistance and access to systems, servers, books and records of accounts, documents, files and papers and information stored electronically as Channel Manager may reasonably request for the purpose of completing the Audit in duly and timely matter;
        3. Channel Manager will use its commercially reasonable efforts cooperate with non-OTA Provider in good faith to avoid and limit any disruption caused by such audits to non-OTA Provider’s business and operations; and
        4. Any information disclosed, made available or provided access to under or pursuant to an Audit shall be regarded as Confidential Information of non-OTA Provider.
  1. INDEMNIFICATION AND DISCLAIMER
      1. non-OTA Provider shall be liable towards, and agrees to fully indemnify, compensate and hold harmless, and keep indemnified and harmless, Channel Manager against all direct and indirect damages, losses, costs, demands, charges, actions, expenses, obligations, claims of any kind, interest, penalties, legal proceedings and any other liabilities of whatsoever nature suffered, paid or incurred by Channel Manager (including all reasonable lawyer(s) or attorney(s) fees and expenses paid or incurred by Channel Manager) arising out or in connection with:
        1. any breach by non-OTA Provider of its obligations under this Agreement; or
        2. any interruption to or unavailability or breakdown of (a) the Channel Manager Servers, or (b) the provision of the services of Channel Manager (directly or indirectly) to the non-OTA End Users, affiliate (distribution) partners or consumers which is caused by or attributable to non-OTA Provider due to its fault or negligence, or incorrect integration or (subsequent) operation(s), or a breach of this Agreement.
        1. Channel Manager does not make or give any representation, warranty, guarantee or any other form of comfort, express, implied or statutory, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchantability, title, non-infringement or fitness for a particular purpose regarding such subject matter. No representation or other affirmation of fact of or made by Channel Manager, including, without limitation, statements regarding capacity (restrictions), XML connection, security, compliancy, up-time, down-time, satisfactory quality, suitability for use, or performance of the services shall be deemed a warranty for any purpose or give rise to any liability of Channel Manager whatsoever or howsoever.
        2. Channel Manager provides access to and operates the Channel Management System, the Channel Manager Server and the Channel Manager XML on an “as is” and “as available” basis. Channel Manager does not warrant or guarantee that the access to or use of the Channel Management System, the Channel Manager Server and the Channel Manager XML will be uninterrupted or error free. Channel Manager does not warrant the accuracy, reliability, completeness or timeliness of the Channel Management System, the Channel Manager Server and the Channel Manager XML (including any data or information received by non-OTA Provider under or pursuant to the Channel Management System, the Channel Manager Server and the Channel Manager XML). Channel Manager makes no representation with respect to, and shall have no liability as a result of, the use of any Data provided to third party end users and property management system end users through the Channel Management System.
        3. To the extent permitted by law, Channel Manager shall not be liable and hereby disclaims and excludes all liability (for any type of damages, losses (including direct, indirect, consequential, punitive, exemplary, special or other damages or losses or loss of production, loss of profit, loss of revenue, loss of contract, loss of date, loss of or damage to goodwill or reputation, loss of claim, wasted expenditure and business interruption), costs, indemnifications, expenses, claims, liabilities, penalties) towards and/or in respect of non-OTA Provider which is related to any performance or unavailability, breakdown, interruption, or downtime of the Data, any use of the Data (including any Customer Data) by any third party end users or property management system end users provided such Data through the Channel Management System, the Channel Manager XML, the Channel Manager Server and/or the Channel Management System or any other error, omission, defect, malfunction or other problem in respect of the Data, the Channel Manager XML, the Channel Manager Server and/or the Channel Management System.
  1. TERM AND TERMINATION
    1. Term, termination and suspension.
      1. Unless agreed otherwise, this Agreement shall commence on the date hereof for indefinite period of time.
      2. Each Party may terminate this Agreement with immediate effect at any time and for any reason, by written notice to the other Party.
      3. Each Party may terminate this Agreement or suspend this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:
        1. a material breach by the other Party of any term of this Agreement;
        2. filing of a request for bankruptcy or suspension of payment or similar action in respect of the other Party, or
        3. a direct or indirect change of control in respect of the other Party.
      4. This Agreement automatically terminates by operation of law in the event that there are no non-OTA End User to which the Online Services are made available.
    2. Upon termination, this Agreement shall absolutely and entirely terminate and cease to have effect.  Notwithstanding the foregoing, Section 9 and 10 shall survive any termination of this Agreement.
    3. Change of control. In the event of a direct or indirect change of control in respect of non-OTA Provider, non-OTA Provider shall promptly notify Channel Manager of such event or action.
    4. Effect of termination. In the event of termination or expiration of this Agreement, non-OTA Provider shall immediately (unless requested otherwise by Channel Manager):
      1. Disable the Connection with Channel Manager;
      2. delete, destroy, disable and/or return (and cause to be deleted, destroyed, removed, disables and returned) all hard and soft copies of any Confidential Information of Channel Manager.
  1. CONFIDENTIALITY
    1. Confidential Information. Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the “Confidential Information”). Confidential Information includes transaction volume, marketing and business plans, business, financial, technical and operational information, usage statistics, ranking data, information in respect of rate, product and availability parity, pricing policies, conversion data and volume of clickthroughs, and other related statistics, personal data of Guests, any software or information regarding software provided or used by Channel Manager in connection with this Agreement, the content and terms of this Agreement and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential. Confidential Information also includes the Data solely as it relates to the disclosure of the Data to any party other than any third party end users or property management system end users provided such Data through the Channel Management System.
    2. Protect and safeguard Confidential Information. Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement, (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the “Permitted Persons”) to maintain, the confidentiality and secrecy of the Confidential Information, (c) it shall disclose Confidential Information only to those Permitted Persons and who need to know such information in furtherance of this Agreement, (d) it shall not, and shall use prudent methods to ensure that Permitted Persons do not, copy, publish, transmit, reproduce, divulge, disclose, use or store in an unprotected retrieval system or data base (other than pursuant to the terms hereof) the Confidential Information, and (e) its shall return or destroy all ((hard and soft) copies of) Confidential Information upon written request of the other Party.
    3. Permitted disclosure. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) was possessed by the receiving party prior to the date of this Agreement, (iii) is disclosed to the receiving party by a third party having no  obligation of confidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority.
  2. MISCELLANEOUS
    1. Neither party shall be entitled to assign, transfer or encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other party; provided, however that either Party may assign this Agreement without the prior written consent of the other Party in connection with a bona fide sale of such Party or sale of all or substantially all of the assets of such Party to a third party who is not a competitor of the other Party.
    2. All notices and communications must be in English, in writing, and save as set out otherwise in this Agreement, sent by facsimile, email or nationally recognized overnight air courier to the applicable facsimile number or address set out in this Agreement. Notices are deemed delivered and received upon successful facsimile transmission or one business day after the date of delivery by a recognized overnight air courier.

If to Channel Manager:

Digital Arbitrage, Inc.

7660 Fay Avenue, Suite H-321

La Jolla, CA 92037

Attn:  Adam Harris

 

Email: support@myallocator.com

Fax:

If to non-OTA Provider, notifications will be sent to the email address registered through www.myallocator.com/becomeapartner and/or updated email address linked to the active non-OTA account.

  1. Whole Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, offers, undertakings or statements regarding such subject matter.
  2. Third party beneficiary. This Agreement is concluded for the benefit of the Parties and their respective successors and permitted assigns, and nothing herein is intended to or shall implicitly confer upon any other party any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. There are no third-party beneficiaries to this Agreement.
  3. This Agreement may be executed on faxed or scanned copies and entered into by Party by way of executing a separate counterpart, but it shall not be effective until each Party has executed at least one counterpart. Each counterpart, when executed, shall constitute an original, and all the counterparts shall together constitute one and the same instrument.
  4. Each Party shall bear its own costs, charges and expenses in connection with the entering into, execution, implementation of and performance under this Agreement. Access to the Online Services for the purposes of the Connection shall be rendered to Channel Manager free of charge.
  5. Burden of Proof. Parties agree and acknowledge that in the event of an (alleged or threatening) infringement or breach by non-OTA Provider of its obligations under this Agreement, the burden of proof is carried by non-OTA Provider. Channel Manager carries the benefit of assumption and non-OTA Provider needs to provide and deliver sufficient and satisfactory evidence (i.e. conclusive and irrefutable) in order to defend or reject a claim.
  6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to a contract executed and performed in such state, without giving effect to the conflicts of laws principles thereof. Each of the parties hereto irrevocably consents to the exclusive jurisdiction of any court located within the State of California in connection with any matter based upon or arising out of this Agreement or the matters contemplated hereby and it agrees that process may be served upon it in any manner authorized by the laws of the State of California for such Persons and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and such process.