Site Access Membership Agreement
This Site Access Membership Agreement forms part of a contract between Global Connections, Inc. (the Company") and the person (the "Customer") who registers to utilize and/or receive products and services (the "Services") provided by the website at www.myGCITravel.com (the "Site"). The entire contract (the "Agreement") consists of this Site Access Membership Agreement, the description of the Service (the "Site Service Description") provided by the Company on its website or in another online format, and any billing information provided by the Member. The various Services may be subject to fees as set forth in the Site Service Description. More information is available regarding Services and Site Service Description at the Site.
The Agreement becomes binding on the Member when the Member accesses the Service or completes the online registration process to begin utilizing the Services.
1. Membership, Acceptance and Service.
(a) When Accepted by Company, the registration by Member on the Site (the “Membership”) creates a contract between Member and Company, consisting of the Membership, the Site Service Description and this Membership Agreement. The Membership is “Accepted” by Company upon provisioning of the Services on the Site for the Member.
(b) Company will provide, and Member will purchase and pay for, the Services selected and specified on the Site (the “Service Fees”). Service Fees will vary by Services selected and will be specified in the Member’s Membership or on the Site at the time such Service is purchased.
(c) The basic Service of access to the Site is provided free to the Member at this time. Member acknowledges that information and data (the “Member Data”) provided by the Member to the Company in exchange for provisioning of the access to the Site for the Member may be utilized to produce aggregate reports, generate benchmark indices, and for other purposes by the Company in conjunction with the provisioning of products and services.
(d) Certain Services may require the Member to agree to additional terms and conditions and may require the Member to provide a credit card for billing purposes or agree to other payment terms.
2. Fees, Taxes and Payment. Member will pay to Company the Service Fees in the manner set forth in the Membership. All fees are fully earned when due and non-refundable when paid. Any amounts payable to Company not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Member and Company are parties, Member will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees. If any check is returned for insufficient funds Company may impose a processing charge of $10.
3. Term and Termination.
(a) Access to the Site will commence when provisioned and continue for a period of one year or until being terminated by either party (such period being the "Term").
(b) Either party may terminate this Agreement upon fifteen (15) days written notice or immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 10 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets.
(c) Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3 through 14 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
4. Customer's Representations and Warranties. Member hereby represents and warrants to Company, and agrees that during the Term: (a) Member will utilize the Site only for the Member’s purposes and will not resell or redistribute to third parties data, communications, guidance, and other information provided by the Company in conjunction with the delivery of the Service except as otherwise permitted by this Membership Agreement; (b) Member will utilize the Service only for lawful purposes; (c) Member is the owner or valid licensee of any content, including text, graphic images, photographs, video recordings, audio recordings, and other data of every kind and description, that Member may provide to Company in conjunction with the use of the Service (as applicable, the “Member Content”), and Member has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Member Content and each element thereof without any obligation by Company to pay any fees, residuals, or other compensation of any kind to any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof (as applicable, a “Person”); (d) Member’s use, publication and display of the Member Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person; (e) Member will comply with all applicable laws, rules and regulations regarding the Member Content; and (f) Member has used its best efforts to ensure that the Member Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code.
5. License to Company. Member hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of the Site and Services under the Membership: (a) digitize, convert, install, upload, select, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Member Content; and (b) make archival or back-up copies of the Member Content. The foregoing license is for the use of Member only and Member may not share its login ID or password with any other person.
6. Member’s Responsibilities.
(a) Member will provide Member Data to Company as provided or requires with respect to a Service on the Site. Member represents that Member Data is correct and accurate to the best of Member’s knowledge.
(b) Member will provide current and updated Member information, including email addresses, postal addresses, phone numbers, fax numbers, and the like, for Company’s use in contacting Member in conjunction with delivery of the Service by the Company, and will cooperate fully with Company in connection with Company’s performance of the Service.
(c) Member is solely responsible for the quality, performance and all other aspects of the Member Content and any statements made by the Member on the Company Site.
(d) To the extent that the Service permits Member to post or otherwise provide Member Content, Member shall be fully responsible for uploading all content and Company shall not be responsible for any damages to the Member Content or other damages or any malfunctions or service interruptions caused by any failure of the Member Content to be compatible with the hardware and software used by Company to provide the Service.
7. Company Intellectual Property.
(a) Except for the Member’s limited right to utilize the Site, this Agreement does not transfer from Company to Member any of the Company’s proprietary content or technology, including, without limitation, Company-provided information, such as reports, data, communications, guidance, and the like; software, hardware designs, algorithms, user interface designs, and the like; know-how, trade secrets, and any related intellectual property rights throughout the world (whether owned by Company or licensed to Company from a third party), and any derivatives, improvements, enhancements, updates, modifications or extensions of Company content or technology conceived, reduced to practice, or developed at any time (as applicable, the “Company Content and Technology”).
(b) Company Content and Technology, and all rights, titles and interests in and to the Company Content and Technology shall remain solely with Company. Member shall not, directly or indirectly, redistribute, publish, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company Content and Technology.
(c) Company’s trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Company. Member may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Company.
(d) Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Member sends to Company relating to the Service (excluding any Member Data) will be treated as being non-confidential and non-proprietary. Company may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
8. Limited Warranty.
(a) Company represents and warrants to Member that the Site will be maintained (i) in a manner consistent with industry standards reasonably applicable to the performance thereof and (ii) at least at the same level of service as provided by Company generally to its other Members for the same services. Member’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-provide any defective Service previously provided at no cost to Member.
(b) The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Company’s reasonable control; (ii) that resulted from any actions or inactions of Member, Member or any third parties; or (iii) that resulted from Member’s equipment or any third-party equipment not within the sole control of Company.
(c) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR ANY INFORMATION OR SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO MEMBER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE..
9. Limitation of Liability.
(a) IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY MEMBERSHIP, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY MEMBER DURING THE TERM IN WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURS..
(b) COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION, OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM..
(c) EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY MEMBERSHIP, OR (EXCEPT AS PROVIDED IN SECTIONS 10 AND 11) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES..
(d) The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 10(c) shall not apply to liability arising on account of Member’s indemnification obligations under Section 11.
10. Indemnification of Company. Member shall defend, indemnify and hold harmless Company, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “Company Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Company Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Member’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Member Content or any end user’s use of the Member Content, (iii) violation by Member or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of the Member Content, or the use of the Service in combination with hardware, software, or content not provided by Company, (v) claims or actions by third parties relating to or arising out of Member’s use of the Service, and (vi) any damage to Company’s servers or other hardware caused by Member.
11. Indemnification of Customer.
(a) Promptly after receipt by Member of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which Member may be indemnified hereunder, Member shall give written notice thereof to Company, provided that failure to give or delay in giving such notice to Company shall not relieve Company of any liability it may have to Member hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. Company shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, Member may participate in the defense of any such claim or suit at Member’s own expense.
(b) Notwithstanding Section 12(a), Company assumes no liability for infringement claims arising from (i) use of the Service with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Service not authorized by Company in writing, (iii) the Member Content or any content, data or information provided or supplied by an End User, or (iv) Member’s use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF COMPANY, AND THE EXCLUSIVE REMEDY OF MEMBER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.
(a) Company will keep confidential Member’s name, address, telephone number, email address, credit card information, password and other non-public information provided by Member to Company for the purpose of obtaining or maintaining the Member’s account or paying amounts owed to Company (collectively, the “Member Confidential Information”), subject, however, to the provisions of this Agreement regarding Member Data.
(b) Company may use the Member Confidential Information to administer the Member’s account, collect fees owed by Member and as reasonably necessary or convenient to facilitate the Service. Company may not provide the Member Confidential Information to any third party, except for attorneys, accountants, employees, and agents working on behalf of Company pursuant to this Agreement.
(c) Company may collect information regarding the Member from sources other than the Member Confidential Information (including data concerning Member’s usage of the Service and the Company Site) (“Member Non-Confidential Information”). Company may use the Member Non-Confidential Information for any purpose and may share Member Non-Confidential Information with any party so long as the Member Non-Confidential Information cannot be correlated with, or linked to, Member Confidential Information. The Company Site may use software cookies or web beacons to track Member usage of the Company Site or the Service. Information collected by Company through such means is Member Non-Confidential Information.
(d) Notwithstanding Section 13(a), the following shall not be considered Member Confidential Information: (i) any information that Company can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by Member; (ii) any information that was in the public domain prior to disclosure by Member to Company as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the Member to Company, comes into the public domain through no fault of Company, or (iv) any information that is disclosed to Company without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure.
(a) Independent Contractor. Company and Member are independent contractors and nothing contained in this Agreement places Company and Member in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
(b) Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Kansas, except that all arbitration and related proceedings conducted pursuant to Section 14(c) below, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 14(C) BELOW MUST BE BROUGHT IN A KANSAS STATE OR FEDERAL COURT LOCATED IN JOHNSON COUNTY, KANSAS, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) Mandatory Arbitration. Notwithstanding Section 14(b) above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by a recognized provider of arbitration services agreed upon by both parties before a single arbitrator, appointed in accordance with such rules. Any such dispute shall address only the claims brought by the applicable party and no party may represent a class of similarly situated persons. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Overland Park, Kansas. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
(d) Headings. The headings herein are for convenience only and are not part of this Agreement.
(e) Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any Membership, confirmation, correspondence or other communication of Member or Company, the terms and conditions of this Agreement shall control. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that this Membership Agreement may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company Site.
(f) Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
(g) Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Member via e-mail to the Member’s e-mail address as maintained in Company’s billing records.
(h) Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
(i) Assignment; Successors. Member may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Member. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(j) Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.
(k) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise. If this Agreement is executed electronically, each party acknowledges is a lawful means of obtaining signatures in the United States. Each party agrees that its electronic signature is the legal equivalent of its manual signature on this Agreement. Each Party further agrees that its use of a key pad, mouse or other device to select an item, button, icon or similar act/action, regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes its signature (hereafter referred to as "E-Signature"), acceptance and agreement as if actually signed by such party in writing. Each Party also agrees that no certification authority or other third party verification is necessary to validate its E-Signature and that the lack of such certification or third party verification shall not in any way affect the enforceability of its E-Signature.
(l) Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
(m) No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.
(n) Government Regulations. Member may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Member operates or does business.
(o) Member’s Name. Company may list and disclose Member’s name on the Company Site and in other marketing materials, identifying the Member as a user of the Service.