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<br /> enforce its rights hereunder by an action for damages or for specific performance, "Services Availability is maintained so long as Services are made available by
<br /> injunctive or other equitable relief Rubicon to the Subscriber for at least 22 hours each day. Services unavailability does
<br /> Login names and passwords assigned by Rubicon are personal and confidential to not include (i) outages associated with scheduled maintenance; provided that
<br /> each Subscriber and its Authorized Users, and Subscriber shall take reasonable steps Subscriber is notified of scheduled maintenance at least 48 hours in advance, (ii)
<br /> to assure that identification names and passwords are not disclosed to or used by Subscriber's inability to access the Services due to Subscriber's inability to access the
<br /> any person other than the person to whom the login and password is assigned. Internet, (iii) interruptions of service due to force majeure; or (iv) interruption in
<br /> Neither Subscriber nor any Authorized User may attempt to access any other of Services caused by changes to a travel distribution channel web site.
<br /> Rubicon's systems, programs or data that are not made available for public use or Subscriber acknowledges that changes in an internet site from which Rubicon
<br /> for use by MarketVision subscribers. gathers information or the lack of availability of data provided to Rubicon by third
<br /> parties may cause errors in the performance of the Services. Rubicon is not
<br /> 6. FEES; PAYMENTS; TAXES responsible for any such errors and such errors will not constitute a breach of the
<br /> As compensation for the Services, Subscriber must pay to Rubicon the Services Performance warranty.
<br /> Subscription Fee(s) as detailed for the Services selected by Subscriber in one Rubicon does not warrant that the Services are secure, free from bugs,
<br /> or more of the attached Exhibits and summarized in the Fee Schedule interruptions, errors, or other program limitations. Subscriber acknowledges that
<br /> Summary on the Registration Page of this Agreement Fees for the Services use of the Internet presents certain risks relating to viruses or other harmful
<br /> may be amended by Rubicon from time to time as described in Section 3 . activities. Subscriber (and not Rubicon) assumes such risk. All warranties given or
<br /> Unless otherwise specified in the Fee Schedule, payments will be due and made by Rubicon with respect to the Services (i) are for the benefit of the
<br /> payable to Rubicon annually, in advance. Subscribers may choose to remit
<br /> Subscriber of the Services only and are not transferable, and (fl) shall be null and void it
<br /> MarketVision fees on a quarterly basis by agreeing to pay a finance fee equal if Subscriber breaches any terms or conditions of this Agreement
<br /> to two and one-half percent (2.5%) of the Subscription Fee.
<br /> Any applicable Subscription Fee adjustments provided by Rubicon shall be 9. LIMITATION OF LIABILITY AND DAMAGES
<br /> detailed in the Fee Schedule Summary on the Registration Page of this In the event that the Services Performance warranty or the Services Availability
<br /> Agreement. warranty is breached, Subscriber must notify Rubicon of such breach within thirty
<br /> If Subscriber requests that Rubicon provide any services other than Rubicon's (30) days of the breach. The notice must identify the date of the breach and provide
<br /> standard Services, then such services shall be billed by Rubicon at its then standard a description of the breach with sufficient detail to allow Rubicon to confirm the
<br /> rates unless otherwise agreed by the parties. occurrence of such breach. Rubicon will have no liability for claimed breaches of '
<br /> which Subscriber fails to provide Rubicon notice as described in this paragraph.
<br /> The payment of all fees and charges to Rubicon, if applicable, may be made by wire
<br /> transfer or by check. Rubicon may require payment by wire transfer in the event of In the event of a breach of the Services Performance warranty, Rubicon's liability
<br /> shall be limited to the lesser the amount paid by Subscriber to Rubicon during the
<br /> repeated delinquent payment or the bank's dishonoring one or more checks of
<br /> Subscriber. All fees and charges are due within thirty (30) days of the date of thirty (30) days prior to notification by Subscriber to Rubicon of such Rubicon
<br /> Rubicon's invoice and are non-refundable. Rubicon may, at its option, impose an breach; or the amount paid by Subscriber for the defective Services.
<br /> interest charge on any late payments at a rate of one and one-half percent ( I ''/2%)
<br /> In the event that the Services Availability warranty is breached during three (3) or
<br /> per month or the highest rate allowed by law, whichever is less. more consecutive days in any calendar month, then for each additional day during
<br /> pay y Pp p p property,
<br /> which such breach occurred in such month, Subscriber will receive a credit against
<br /> Subscriber shall a an applicable sales, use, service, occupation, personal
<br /> value-added and excise taxes and other fees, assessments or taxes that may be the fees on Subscribers next invoice equal to I /30th of the base monthly
<br /> assessed or levied by any taxing authority against Subscribers or Subscribers subscription fees paid by the Subscriber for the month during which the availability
<br /> Authorized Users' receipt of the Services. Subscriber agrees that it shall remit to breach occurred.
<br /> Rubicon for payment to the appropriate taxing authorities any sales, use, value At Rubicon's option, Rubicon may either refund any amount payable by reason of a
<br /> added or other tax required to be collected by Rubicon from Subscriber. warranty breach or give Subscriber credit against fees otherwise payable then or in
<br /> 7. TERM AND TERMINATION the future by Subscriber. The refund or credit of such amount shall be the sole
<br /> remedy of Subscriber and the sole liability of Rubicon for a breach of the Services
<br /> The term of this Agreement (the "Term") shall commence on the Go Live Performance warranty or the Services Availability warranty.
<br /> Date and shall continue in full force and effect for one ( 1 ) year and thereafter
<br /> EXCEPT FOR THE ABOVE REFUND OR CREDIT, SUBSCRIBER'S EXCLUSIVE
<br /> on a year to year basis until one parry gives the other written notice of REMEDY AND THE ENTIRE LIABILITY OF RUBICON AND THE
<br /> termination at least thirty (30) days prior to the end of any Term or renewal PARTICIPATING PARTIES FOR ANY REASON SHALL BE LIMITED TO THE
<br /> Term, AMOUNT PAID BY SUBSCRIBER FOR THE SERVICES, DURING THE
<br /> This Agreement may terminate prior to the expiration of the Term at the PRECEDING THIRTY (30) DAY PERIOD, TO THE MAXIMUM EXTENT
<br /> option of Subscriber if Rubicon is in material breach of this Agreement and fails to PERMITTED BY APPLICABLE LAW, RUBICON IS NOT LIABLE FOR ANY
<br /> cure that breach within thirty (30) days after Subscriber provides Rubicon written INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE INCIDENTAL OR
<br /> notice of the breach. CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION,
<br /> This Agreement may terminate prior to the expiration of the Term at the DAMAGES FOR LOST BUSINESS, LOST DATA, LOST GOODWILL, LOST
<br /> option of Rubicon or Rubicon may suspend Services by written notice to REPUTATION, LOST REVENUES, LOST PROFITS OR INVESTMENT OR THE
<br /> Subscriber, if Subscriber violates or breaches any of the terms, conditions or LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF
<br /> covenants of this Agreement and does not remedy such violation or breach WARRANTY, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE),
<br /> within ten ( 10) days after written notice by Rubicon to Subscriber of such PRODUCTS LIABILITY OR OTHERWISE, EVEN IF RUBICON OR THE
<br /> violation or breach. PARTICIPATING PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF
<br /> In the event of termination or expiration of this Agreement for any reason, any SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND
<br /> accrued payment obligations and the provisions of Sections 8 and 9 will survive. TO HAVE FAILED OF ITS ESSENTIAL PURPOSE,
<br /> 8. LIMITED WARRANTYAND DISCLAIMER OF WARRANTIES The limitations of damages or liability set forth in this Agreement are fundamental
<br /> elements of the basis of the bargain between Rubicon and Subscriber. Subscriber
<br /> Rubicon represents and warrants to Subscriber that, during the Term, (i) the acknowledges and agrees that Rubicon would not be able to provide the Services
<br /> Services will be provided in material conformance with the description of the on an economic basis without such limitations.
<br /> Services published by Rubicon at the time Subscriber submits its registration request 0. MISCELLANEOUS
<br /> to Rubicon or as such description may be modified by Rubicon from time to time in
<br /> accord with Section 2 ("Services Performance"), and (ii) Rubicon will maintain a. Each party agrees that all non-public information and Materials
<br /> "Services Availability" (as described below). EXCEPT AS EXPRESSLY PROVIDED reasonably treated as confidential and disclosed by either party,
<br /> IN THE PRECEDING SENTENCE, THE SERVICES ARE PROVIDED "AS-IS" AND, whether disclosed orally, in writing or electronically and whether
<br /> TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RUBICON marked "Confidential" or not, will be considered and referred to
<br /> AND ITS AFFILIATES, LICENSORS, THIRD PARTY CONTENT OR DATA collectively in this Agreement as " Confidential Information" subject to
<br /> PROVIDERS, AND SUPPLIERS (COLLECTIVELY, THE "PARTICIPATING the protections of this Agreement Confidential Information does not
<br /> PARTIES") DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND include information that (i) is now or subsequently becomes generally
<br /> CONDITIONS, EXPRESS OR IMPLIED OR ARISING FROM ANY COURSE OF available to the public through no fault or breach on the part of either
<br /> CONDUCT OR TRADE, REGARDING THE SERVICES AND THEIR RELATED party; (ii) either party can demonstrate to have had rightfully in its
<br /> MATERIALS, INCLUDING WITHOUT LIMITATION, FITNESS FOR A possession prior to disclosure to the receiving party; (iii) is
<br /> PARTICULAR PURPOSE, ERROR FREE OPERATION, UNINTERUPTED independently developed by either party without the use of any
<br /> OPERATION, COMPLETENESS, TITLE, QUALITY, MERCHANTABILITY AND Confidential Information ; or (iv) either party rightfully obtains from a
<br /> NON-INFRINGEMENT, third party who has the right to transfer or disclose it. For purposes of
<br /> MV06201 I USD MarketVision Subscription Agreement
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