Cathay NDC Connection Terms and Conditions

For the purposes of these Terms and Conditions: “We”, “Our” and “Us” refers to Cathay Pacific Airways Limited, a body corporate incorporated with limited liability in Hong Kong, to the extent that the Airline Data You are accessing via either the Direct Connect or the Service Provider (as applicable), and references to “You” and “Your” refers to the Person authorised to receive Airline Data via either the Direct Connect or the Service Provider (as applicable) in accordance with these Terms and Conditions.  You and We are each referred to herein as a “Party” and collectively may be referred to as the “Parties.”  Certain defined terms used in these Terms and Conditions are listed in Section 4 below.

1. Applicability of these Terms and Conditions to You if You are an IATA or ARC Accredited Travel Agent appointed by Us

   If You are an IATA or ARC accredited travel agent appointed by Us:

   1. We have authorised You to search, sell and ticket flights and other products and services (collectively, “Airline Products”) on behalf of Us pursuant to certain applicable agreements including (i) the terms and conditions of the International Air Transport Association (“IATA”) Passenger Sales Agency Agreement (the “IATA PSAA”) and Passenger Sales Agency Rules (“IATA PSAR”) and all IATA resolutions incorporated by them with respect to any travel agency locations outside the United States; and/or (ii) the Airlines Reporting Corporation (“ARC”) Agent Reporting Agreement with respect to any travel agency locations inside the United States (the “ARC Agreement”) (collectively, as such agreements may be updated or supplemented by Us from time to time, the “Governing Travel Agency Agreements”), which will be interpreted to apply to Your use of Airline Data pursuant to these Terms and Conditions as well as all bookings and servicing under these Terms and Conditions; and
   2. Your use of Airline Data via the Direct Connect or Service Provider (as applicable) under these Terms and Conditions is expressly conditioned on (i) Your being an accredited IATA or ARC accredited travel agency appointed by Us and specifically approved by Us to access Airline Data via the Direct Connect or Service Provider (as applicable); (ii) Your having all necessary powers, rights, authorisations and approvals to enter into these Terms and Conditions on Your own behalf and that of each of Your  agency locations booking through the IATA or ARC IDs or numbers You provide to Us; (iii) Your either (A) using the APIs and accessing Airline Data directly via the Direct Connect in accordance with these Terms and Conditions or (B) accessing Airline Data via only the Service Provider that We have authorised You to use in accordance with these Terms and Conditions; and (iv) Your acceptance of these Terms and Conditions, which will form the agreement between You and Us.  By using Airline Data via either the Direct Connect or Service Provider (as applicable), You are consenting to be bound by these Terms and Conditions on behalf of the travel agency You represent and all of its agency locations.  You shall, at all times, comply with the booking and ticketing policies and the requirements set forth in the Governing Travel Agency Agreements (which continue to apply) and any other contract in effect between You and Us during the Term.  Generally, in the event of a conflict between these Terms and Conditions and the Governing Travel Agency Agreements, any applicable Governing Travel Agency Agreement will prevail; provided that for any matters pertaining solely to Your access to and use of Airline Data via either the Direct Connect or the Service Provider (as applicable), these Terms and Conditions will prevail.
2. Applicability of these Terms and Conditions to You if You Are an Intermediary Not Accredited by IATA or ARC

   If You are an intermediary that is not a travel agent accredited by IATA or ARC:

   1. We hereby appoint You to be an intermediary for the sole purpose of searching for Airline Content and making and servicing bookings of passengers on behalf of Us, in each case, to the extent that We make such capabilities available to You via the Service Provider or the Direct Connect (as applicable) in accordance with these Terms and Conditions.  Your appointment by Us and Your ongoing access to Airline Data hereunder are conditioned on Your acceptance of, and adherence to, all rules, directions and instructions We have now issued or may in the future issue for agents and/or intermediaries in general.  As with appointments in respect of ARC or IATA accredited travel agents, You understand that (A) this appointment is “at will,” being able to be terminated or suspended by Us at any time in accordance with these Terms and Conditions, subject to applicable law; and (B) unless separately agreed by You and Us, there are no commissions or other compensation payable by Us to You under these Terms and Conditions.  Your appointment by Us and Your ongoing access to Airline Data hereunder are also expressly conditioned on (i) Your being specifically approved by Us to access Airline Data via the Direct Connect or Service Provider (and You agree to provide to Us the data We require to approve of such access and verify Your identity; (ii) Your having all necessary powers, rights, authorisations and approvals to enter into these Terms and Conditions on Your own behalf and each affiliate of You; (iii) Your either (A) using the APIs and accessing Airline Data directly via the Direct Connect in accordance with these Terms and Conditions or (B) accessing Airline Data only via the Service Provider that We have authorised You to use in accordance with these Terms and Conditions; and (iv) Your acceptance of these Terms and Conditions, which will form the agreement between You and Us.  By inscribing Your electronic signature in the space indicated below and by using Airline Data via the Service Provider, You are consenting to be bound by these Terms and Conditions on behalf of the entity You represent and all of Your locations and affiliates.  For purposes of its applicability to You during the term of these Terms and Conditions, or until You acquire ARC or IATA accreditation and appointment by Our concurrence under ARC’s or IATA’s respective rules, these Terms and Conditions will be deemed amended to eliminate all references to the ARC Agreement and the IATA PSAA (and therefore payment or settlement of sales and commissions via ARC’s Airlines Clearing House or IATA’s Billing and Settlement Plans (BSP), and will be binding as a stand-alone contract on You for the scope of Your activities under these Terms of Conditions.  
3. Scope of these Terms and Conditions
   1. Please review these Terms and Conditions carefully.  If You do not agree to these Terms and Conditions or other restrictions notified to You during the course of Your use of Airline Data, then You are not permitted to, and agree not to, use or access Airline Data under these Terms and Conditions.  You will be responsible for any liability that may be incurred as a result of Your use of Airline Data under these Terms and Conditions or the use of Your unique identification numbers (including IATA or ARC IDs and or numbers, if applicable).  We may modify these Terms and Conditions at any time, and such modification will be effective immediately upon our notice of the modified Terms and Conditions to You.  Accordingly, Your continued use of the Direct Connect or the Service Provider for purposes of accessing Airline Data is deemed to be Your acceptance of the modified Terms and Conditions.  No purported alteration or variation of these Terms and Conditions by You will be effective unless it is in writing, refers specifically to these Terms and Conditions and is agreed separately in writing by Us.
   2. To the extent that You engage employees, sub-agents, payment agents or other third parties to support Your activities within the scope of these Terms and Conditions, You will be responsible to Us for their activities and their full compliance with these Terms and Conditions.  We may suspend or withdraw the authorisations We have granted to You hereunder at any time including as a result of the activities of any such third party breaching these Terms and Conditions.  Once such authority is withdrawn, We may cancel any bookings and/or ticketing made on behalf of third parties and take any other actions permitted under these Terms and Conditions in relation to any breach hereof.
   3. You acknowledge that separate terms and conditions will apply to airline carriage.  You and We agree and confirm that the mutual promises and undertakings in these Terms and Conditions represent sufficient consideration.  Each Party will bear its own costs for its respective performance under these Terms and Conditions and will each be responsible for any tax liability it incurs.
4. Definitions

   In these Terms and Conditions, unless expressly stated otherwise:

   1. "Airline Content” means Fares, Ancillaries and associated inventory for Our and Our affiliates’ flights that We elect to provide to You.
   2. “Airline Data” means any Data, regardless of source, that (i) identifies Us (e.g. Airline Marks); (ii) identifies or reasonably could be used to identify Airline Products (including all Airline Content); (iii) relates to a relationship between a customer and Us (e.g., Cathay Membership or other loyalty program membership); (iv) relates to a transaction between a customer and Us (including PNRs, and payment data); or (v) is passed by You to Us in connection with a booking, sale or PNR.  Airline Data includes Personal Data that meets one of the criteria set forth in clauses (i) through (v).  Airline Data also includes APIs to the extent You are using the Direct Connect (in lieu of a Service Provider) to access Airline Content.
   3. “Airline Marks” means the trademarks, trade names, service marks and domain names of Us and Our affiliates, and any visual representations thereof including logos, designs, symbols, word marks, images, colours and colour combinations, trade dress and characters and any other publicity rights or indicia of ownership, whether or not registered.
   4. “Airline Reservation System” means Our internal reservation system.
   5. “Ancillary” and “Ancillaries” means any additional product or service (or any combination thereof) that We may offer, sell, display, and fulfill that is priced and sold as a single product (whether part of the Fare or not).  Examples of Ancillaries include separate products and services offered for baggage, seat selection, lounge access, priority boarding, food and beverages, and Wi-Fi.
   6. “API” or “APIs” means Our application programming interface(s).
   7. “Data” means any data or information, in any form or format, including interim, processed, compiled, summarised, or derivative versions of such data or information, that may exist in any system, database, or record.
   8. h.    “Data Security Incident” means any of the following: (i) the loss or misuse (by any means) of Personal Data or other Airline Data processed by You under these Terms and Conditions; (ii) inadvertent, unauthorised and/or unlawful processing, disclosure, access, alteration, corruption or destruction of such Personal Data or other Airline Data; or (iii) other act or omission that compromises the security, confidentiality or integrity of such Personal Data or other Airline Data.
   9. “Destructive Elements” means any software, data or tools (e.g., “viruses,” “worms” or “trojan” programs) that (i) are intentionally designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of Our systems, including, for example, based on the elapsing of a period of time, exceeding an authorised number of copies, advancement to a particular date or other numeral (e.g., “time bombs”, “time locks” or “drop dead” devices); (ii) would permit You or third parties to access Our systems or Airline Data, to cause such disablement or impairment, or otherwise to circumvent the security features of Our systems; or (iii) contain any other harmful, malicious or hidden procedures, routines or mechanisms which would cause Our systems to cease functioning completely or in part, or to damage or corrupt software, data or communications, or otherwise interfere with operations.
   10. “Direct Connect” means the direct programming and communications interface (as notified by Us from time to time and which may include the IATA New Distribution Capability (“NDC”) standards) which, in the event You are not using a Service Provider, You may use to access Airline Content for the purposes authorised herein.  For the avoidance of doubt, to the extent You are receiving Airline Data via Service Provider, then the terms and conditions regarding the use of the Direct Connect do not apply to You.
   11. “Fare” means the price charged by Us for passenger carriage, and all necessary rules and tariffs associated with the relevant Fare, but excludes fees for other services (such as Ancillaries).
   12. “Person” means any individual, firm, corporation, partnership, association, limited liability company, joint-stock company, trust, unincorporated organisation or other entity.
   13. “Personal Data” means (i) any information relating to a natural person that is sufficient to cause such person to be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, racial, cultural or social identity and (ii) any other information that is defined as personal or personally identifying under applicable law or regulation.
   14. “PNR” means a passenger name record identified by an alpha-numeric code to confirm the reservation of inventory in the Airline Reservation System and all information contained therein including the ticket number, passenger’s name, travel destinations, itineraries, fare information, payment information, traveler profiles and travel contacts.  A PNR may contain more than one passenger’s itinerary.
   15. “Service Provider” means, in the event You are not accessing APIs and Airline Data directly via the Direct Connect, that certain service provider that We have granted the right, under a separate agreement, to access Airline Data via the Direct Connect for the purposes of enabling and servicing bookings by You.
   16. “Software” means the software and technology You used to search and book inventory via either the Direct Connect or Service Provider (as applicable) under these Terms and Conditions.
5. Access to Airline Content
   1. During the Term and subject to all of these Terms and Conditions, We grant to You a limited and terminable right to access Airline Data that We provide to You via either the Direct Connect or Service Provider (as applicable), in each case, for the purposes of performing the activities that We have authorised You to perform under these Terms and Conditions (including as described in Sections 1 and 2 above). You shall not exceed the authorisations granted by Us under these Terms and Conditions. You acknowledge that Your relationship with Us is non-exclusive and that We may enter into similar arrangements with third parties. Nothing in these Terms and Conditions prevents You from using any GDS or any other third parties in connection with the sale of Airline Products.
   2. Your rights under these Terms and Conditions are granted for the purposes of Your marketing and selling Airline Products directly to customers. These rights are specific to You, and do not include any authority for You to do any of the following, without Our specific prior written consent: (i) to appoint a third party to access, distribute or sell Airline Content or other Airline Data, (ii) to offer Airline Products as part of a service provided by You that is re-branded, so that it appears to be a service from a third party; or (iii) to act as an intermediary for further distribution of Airline Products via other intermediaries or third parties. You hereby confirm that, if We provide You consent to do any of the foregoing, You have the appropriate processes to support the responsibilities linked to redistribution, including customer servicing, management and monitoring of sub-agents. You shall ensure and be responsible to Us for all such sub-agents’ full compliance with these Terms and Conditions.
   3. If You are accessing Airline Data directly via the Direct Connect (and not via a service provider), then You agree that the Direct Connect will be developed and implemented solely by You. However, if You notify Us of Your desire to have a third party develop, implement or maintain the Direct Connect, then You shall identify the third party that You wish to engage to do so. If We consent to Your use of such third party, then You will be and remain responsible and liable for any acts or omissions of such third party or its personnel (including failure to perform in accordance with these Terms and Conditions or to comply with any duties or obligations imposed on You under these Terms and Conditions) to the same extent as if such failure to perform or comply was committed by You or Your employees.
   4. We may require further information about You and Your use of Airline Data both before and after granting You access to Airline Data under these Terms and Conditions. Your prompt provision of that information is a continuing condition of Your continuing access to Airline Data.
   5. You shall remit funds to Us using forms of payment We deem acceptable. If You are an IATA or ARC accredited travel agent, then You are required to settle with Us in accordance with the existing Payment Acceptance Policy if BSP NDC Link is made available to You; provided that You may settle via the payment agent of your Service Provider if BSP NDC Link is not available to You. If You are not an ARC or IATA accredited agents and are connecting with Us via a Service Provider, then You may settle via your ticketing agent who must be an IATA or ARC accredited travel agent, provided that you adhere to Our local payment and settlement policies. If You are not an ARC or IATA accredited agents and are connecting with Us via the Direct Connect, then You shall settle with Us through the options made available to You on Our payment gateway. You are responsible for complying with all applicable credit card network regulations and all laws and regulations relating to credit card processing, and will be responsible for the prevention of credit card fraud or identity theft and the receipt of credit card payments. In the event of any customer’s credit card fraud chargeback cases against Us, You will be held liable and We will recover the loss from You. You are also responsible for the security of all credit card data and, upon our request, You shall provide Us with a copy of Your annual PCI-DSS attestation letter.
   6. We will process any authorised refund by returning the outstanding value to the original form of payment. In the event that You paid via a payment agent of Your Service Provider, then You must seek reimbursement from the Service Provider and You acknowledge that We are not responsible for providing refunded amounts directly to You.
6. Restrictions Regarding Your Use of Airline Data
   1. You shall comply with all directions and instructions from Us with respect to Your access to Airline Data and in booking any reservation or issuing, reissuing, selling, exchanging, refunding, cancelling or reporting any ticket. You agree that We may monitor Your use of Airline Data and Your performance pursuant to these Terms and Conditions to verify your compliance with these Terms and Conditions and You shall not block or interfere with such efforts. You shall comply at all times with all applicable laws and regulations. You shall ensure that the information You transmit complies with all applicable laws and regulations.
   2. Your failure to comply either with any of our directions or instructions or with applicable laws and regulations may subject You to (i) cost recovery actions including set-offs and/or invoices We may issue to You for any deficiency or any loss incurred by Us by reason of the violation; (ii) the suspension, limitation or termination of Your rights under these Terms and Conditions; and (iii) legal or equitable remedies. If You are in violation of our instructions that We have issued or if We otherwise need to collect amounts or make adjustments related to Airline Products, then We may issue an invoice to You or set-off amounts owed to You in connection with any deficiency or any loss incurred by Us, as We reasonably deem necessary in light of the Our costs due to Your acts and/or omissions under these Terms and Conditions or any Governing Travel Agency Agreements. We may suspend, limit or terminate your appointment at any time and We also retain all rights and remedies available to Us under these Terms and Conditions.
   3. You shall not copy, publish, disclose or otherwise make available to any third party any Airline Data in any unauthorised form or manner. You shall not create fraudulent, fictitious and abusive bookings and You shall ensure that ticketing or bookings made by You are only in respect of customers’ genuine travel requirements. You are prohibited from seeking to manipulate ticketing or booking in any way, attempt to circumvent journey controls for any reason including, but not limited to obtaining sold out inventory and any other practice prohibited in Our conditions of carriage (as amended from time to time). We may notify of any limitations on Your usage and access to systems or Airline Data (e.g., maximum transactions per second or “look to book” limitations) and You shall not exceed such limitations. You acknowledge that if You exceed such limits, then additional requests will not be processed. If You anticipate exceeding query limitations, then You must notify Us (via Service Provider, if available) and We may, at Our sole discretion, choose to increase query limits in certain situations. Repeat violations of the query limit may result in revocation of Your right to use Airline Data. You shall take all precautions necessary to prevent unauthorised access to Airline Data. If any problem is detected by Us as a result of Your access to Airline Data which causes technical problems or influences the performance of the Airline Reservation System or APIs, then We will have the right at Our sole discretion to automatically suspend such access, in addition to any other remedy We may have in accordance with these Terms and Conditions and applicable law until such time as the problem is remedied.
7. Your Compliance Commitments
   1. You shall comply with the fare disclosure requirements under the Governing Travel Agency Agreements, which apply to all Fares under these Terms and Conditions. Without limiting the foregoing, (i) You shall ensure that Your systems, processes and sales practices accurately display and convey the identity of the operating carrier and all mandatory fees and charges (including Your fees and charges) in all communications or on all pricing displays to customers and in any and all marketing materials; (ii) if You charge a service charge or other fee for Your services, such charge or fee shall be clearly communicated to the customer and listed separately from Our price for the applicable Airline Product; (iii) the total price, excluding fees and charges You apply, shall match the price offer provided by Us and You shall identify for customers the total price (including optional fees and charges and separately, all of Your fees), the cabin and the booking class of each sector, and the identity of the operating carrier; (iv) where applicable, any display or communication of Ancillaries to customers must include the minimum information requirements as provided by and confirmed by Us and be of at least the same quality and detail as We make such information available to You; and (v) any Airline Content You display or communicate to customers must be of reasonable accuracy as determined by Our instructions. You shall take all necessary steps to rectify any inaccuracy when notified by Us. You will be responsible for any pricing, inventory or other similar errors caused by Your Software. You are liable for all fraudulent uses or attacks when they arise from You or from third parties whose access arose from the use of Your Software.
8. Audit and Reporting
   1. Our inspection and audit rights under the Governing Travel Agency Agreements will apply to Your activities under these Terms and Conditions. Without limiting the foregoing, We will have the right on reasonable advance notice, to inspect Your books and records relating to sales of Airline Products and to ensure Your compliance with the provisions of these Terms and Conditions. You shall provide Us with access to Your Software, systems and other materials related to Your obligations under these Terms and Conditions as reasonably requested by Us in order to verify Your compliance with all of the terms of these Terms and Conditions.
   2. We may track Your sales and use of Airline Data hereunder and We may use such information to satisfy Our business requirements and to verify Your compliance with these Terms and Conditions.
9. Intellectual Property Ownership; Data Security; Confidentiality
   1. You shall comply with the data security and confidentiality requirements under the Governing Travel Agency Agreements, which apply to all Airline Data under these Terms and Conditions. Without limiting the foregoing, You agree that all Airline Data is owned by Us and that your use of Airline Data is solely for the purposes of, and is limited to, the activities authorised under these Terms and Conditions. You shall not directly or indirectly engage in any of the following activities: (i) use or disclose Airline Data in a way that may adversely affect Us, including with respect to the use by or disclosure to other airlines or other persons; or (ii) undertake or authorise any kind of commercialisation, marketing, advertising, licensing or resale that is based on Airline Data other than as expressly authorised by these Terms and Conditions. If You reasonably believe that any Airline Data held or displayed by You is being accessed or used by third parties other than in accordance with these Terms and Conditions, You shall promptly notify Us and provide all reasonable assistance to identify and stop the method of such third party access.
   2. We recognise that You have separate relationships with Your own customers and that You may collect, have access to and rights in Personal Data, as well as information specific solely to You and Your services. We also recognise that customers have overlapping or separate rights and interests in data that is processed on their behalf by You as part of Your marketing, sale or delivery of Airline Products to customers and nothing in these Terms and Conditions are intended to restrict the processing of such data so long as You are acting in accordance and within the scope of Your appointment with Us and these Terms and Conditions.
   3. You shall cause all of Your privacy policies to inform end users that their Personal Data will be disclosed to Us (and third parties in accordance with Our privacy policies). You shall give Your customers notice, and if required under applicable law, obtain each customer’s consent, of such disclosure of Personal Data to Us. All such Personal Data will be handled by Us pursuant to and in accordance with Our privacy policies and applicable law. In all other respects, We, as the owner of Airline Data, can use and disclose the Airline Data for any purpose. You shall not adopt, apply or publish any privacy policy inconsistent with the requirements of these Terms and Conditions or Our privacy policy.
   4. You shall establish, implement and maintain technical and organisational safeguards against the unauthorised disclosure, access, use, destruction, loss, damage or alteration of Airline Data that is in Your or Your agents’ possession that are no less rigorous than (i) the standards required by applicable laws and regulations; (ii) industry standard practices in the transportation and related services industry; and (iii) reasonable security procedures and practices appropriate to the nature of the Airline Data. For the avoidance of doubt, such data safeguards must include compliance with the then-current Payment Card Industry Data Security Standards.
   5. You shall comply with the Hong Kong Personal Data (Privacy) Ordinance and similar data protection and privacy laws, regulations and governmental rules and orders in any other applicable jurisdiction (e.g., any jurisdiction where Personal Data is collected or processed in the course of a booking), including the GDPR. You and We are each “data controllers” (as defined in the GDPR) with respect to the Personal Data processed under these Terms and Conditions. Each Party shall comply with all privacy and data security laws applicable to it, including GDPR. With respect to data subject requests, You will be solely responsible for such requests that You receive and You shall reasonably cooperate with and assist Us with respect to any data subject requests that We receive that require information or records on such data subjects that You hold. Upon Our request, You agree to enter any other agreements that may be required by applicable law, which may include the EU Model Clauses.
   6. Each Party (the “Notifying Party”) shall provide to the other Party written notice of any Data Security Incident, in each case, promptly and in no event later than twenty-four (24) hours following the Notifying Party becoming aware of such Data Security Incident. In the event of any Data Security Incident, the Notifying Party shall also: (i) undertake an investigation of such Data Security Incident and reasonably cooperate with the other Party in connection with such investigation; (ii) take reasonable corrective action, at its own expense, to prevent a recurrence of such Data Security Incident; and (iii) take or, at the other Party’s request, reasonably assist the other Party in taking, all remediation efforts that are required by applicable law as a consequence of any Data Security Incident or that are required by any governmental authority.
   7. You will be responsible for maintaining physical, electronic, and procedural security measures that are reasonable and appropriate to prevent the Software and the Airline Data or any equipment used by You or Your employees, agents and contractors from containing or introducing any Destructive Elements to Our systems (including the Airline Reservation System) or any third party systems. If You become aware that a Destructive Element has been so introduced, then You shall eliminate the effects of the Destructive Element to the extent possible and, if the Destructive Element causes a loss (e.g., of operational efficiency or data), assist Us to mitigate and restore such losses provided that it will not prevent Us from exercising any recourse it may have against You under these Terms and Conditions or at law.
   8. No rights to use Airline Marks are granted by Us pursuant to these Terms and Conditions. You understand that You have no right or permission to use the Airline Marks without Our prior approval and for any purpose not expressly approved by Us, and that any unauthorised use of the Airline Marks constitutes a material breach of these Terms and Conditions and an infringement of Our rights in and to the Airline Marks. You acknowledge that We own the Airline Marks, and that You may not alienate the Airline Marks or in any way contest or deny the validity of, or the right or title of Us in or to, the Airline Marks. Where We have granted You the right to use any Airline Mark, You shall follow all trademark use guidelines for the Airline Marks provided by Us from time to time. You shall not (i) alter the Airline Marks; (ii) use any partial Airline Marks or fragments thereof; or (iii) display the Airline Marks without the appropriate trademark designation. We may, at our sole discretion and at any time, retract our permission for a specific use. Upon receiving written notice that We have revoked Your permission to use the Airline Marks in that specific use, You shall immediately cease and desist using the Airline Marks in any form in that specific use, including but not limited to, refraining from distributing any form of that specific use bearing the Airline Marks.
   9. You shall keep confidential and not disclose to any third party the following confidential information of Ours: (i) any fare programs and commission arrangements that may be agreed with Us; (ii) any and all of Our post-booking data, including all PNRs; and (iii) any other Airline Data that We designate as confidential; provided that You may disclose commission arrangements and payments to customers when requested by the customer (“Confidential Information”). You may disclose Confidential Information to Your directors, officers, employees or agents to the extent such persons are bound by equivalent confidentiality commitments and have a legitimate need to know such information in order for You to perform Your obligations to Us. In addition, this Section will not prohibit You from making disclosures required by law or judicial process after making reasonable efforts to resist disclosure and notify Us. You acknowledge that We may disclose fare program and commission arrangements to other carriers subject to applicable laws. This provision will survive the suspension, limitation or termination or expiration of these Terms and Conditions.
10. Term
    1. These Terms and Conditions will begin when You are first provided access to Airline Data under these Terms and Conditions and will continue until the earlier of (i) Our terminating Your access to Airline Data hereunder at our convenience and (ii) Your terminating Your access upon notice to Us (“Term”). Upon the termination of these Terms and Conditions, (i) We will cease providing You with access to Airline Data via the Direct Connect or the Service Provider (as applicable) and (ii) You shall return Our Confidential Information. The termination of these Terms and Conditions will not automatically terminate any of the Governing Travel Agency Agreements. If either Party wishes to terminate any of the Governing Travel Agency Agreements as a result of the termination of these Terms and Conditions, it shall follow the termination procedures set forth in the applicable Governing Travel Agency Agreement(s). Any provision of these Terms and Conditions which contemplates performance or observance subsequent to any termination or expiration of these Terms and Conditions will survive any termination or expiration of these Terms and Conditions and continue in full force and effect, including Sections 9(i) and 11 through 13.
11. Limitation of Liability
    1. EXCEPT FOR EACH PARTY’S OBLIGATIONS UNDER SECTION 9 (INTELLECTUAL PROPERTY OWNERSHIP; DATA SECURITY; CONFIDENTIALITY) AND INDEMNIFICATION (SECTION 12) AND EXCEPT FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, FRAUD AND ANY OTHER LIABILITY THAT MAY NOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES.
12. Indemnification
    1. You shall indemnify and hold harmless Us and Our affiliates and Our and Our affiliates’ respective officers, directors, employees and agents from and against all loss, damage, cost, expense and other liabilities (including legal fees and costs) incurred by, awarded against or agreed to be paid by such indemnified parties in any settlement approved by or on Your behalf relating to or arising from a third party claim: (i) that You or any of the services You provide infringe or violate the intellectual property rights of any third party; (ii) relating to any Data Security Incident; and (iii) relating to any breach of these Terms and Conditions by, or any negligent act or omission of, You, Your officers, employees, agents or any other Person acting by or on Your behalf.
    2. We shall indemnify and hold harmless You and Your officers, directors, employees and agents from and against all loss, damage, cost, expense and other liabilities (including legal fees and costs) incurred by, awarded against or agreed to be paid by such indemnified parties in a settlement approved by Us relating to or arising from a third party claim that: (i) Airline Content infringes or violates the intellectual property rights of any third party; or (ii) relating to Our breach of these Terms and Conditions.

     

13. Other
    1. These Terms and Conditions will be considered a contract made in Hong Kong and will be governed and construed according to Hong Kong law (without giving effect to any choice of law rule that could cause the application of the laws of any jurisdiction other than the laws of Hong Kong to apply) and will be subject to the exclusive jurisdiction of Hong Kong courts, to which jurisdiction the Parties hereby irrevocably submit. The Parties agree that, in the event of a material breach of these Terms and Conditions, in addition to any other legal and equitable rights and remedies that are available, the non-breaching Party will be entitled to seek injunctive and other equitable relief, without the necessity of proving damages or furnishing a bond or other security. Neither Party may assign these Terms and Conditions without the consent of the other Party. Except as set out in these Terms and Conditions, no provision of these Terms and Conditions will be enforceable by a person who is not a party to these Terms and Conditions. To the extent a jurisdiction provides third parties with rights under these Terms and Conditions (e.g., Contracts (Rights of Third Parties) Ordinance in Hong Kong), such rights will be inapplicable. The prior two sentences do not affect any right or remedy of a third party which exists or is available apart from statutes such as the Contracts (Rights of Third Parties) Ordinance.
    2. If at any time any part of these Terms and Conditions (including any one or more of the clauses of these Terms and Conditions or any sub-clause or paragraph or any part of one or more of these clauses) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same will be deemed omitted from these Terms and Conditions and the validity and/or enforceability of the remaining provisions of these Terms and Conditions will not in any way be affected or impaired as a result of that omission. These Terms and Conditions may be executed in one or more counterparts, each of which will be an original, but all of which together will constitute one instrument.
    3. The words “other”, “include”, “including” and “in particular” do not limit the generality of any preceding words and are not to be construed as being limited to the same class as the preceding words where a wider construction is possible. A “right” includes a power, a remedy and discretion; and references to “will” shall be construed as “shall”.