(c) PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING AND/OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT (I) YOU ARE A USER OF A CURRENT CUSTOMER, (II) IF YOU ARE THE FIRST USER OF A CURRENT CUSTOMER TO REGISTER FOR AN ACCOUNT ON THE SERVICES, YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT, AND (III) YOU AGREE TO THIS AGREEMENT. IF YOU CANNOT MAKE ALL OF THE FOREGOING REPRESENTATIONS AND WARRANTIES, DO NOT ACCESS OR USE THE SERVICES.
(a) If Customer has entered into a Service Order Form, the Effective Date of this Agreement is the Services start date listed on the Service Order Form, and the initial term of this Agreement will be the term stated on the Service Order Form, unless terminated earlier in accordance with this Agreement. Except as otherwise set forth on a Service Order Form, this Agreement will automatically renew for a period equal to such initial term unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to expiration of the then-current term.
(b) If Customer purchases its subscription for the Services from HOTELS QUALITY’s authorized reseller, Customer acknowledges that (i) Customer will pay reseller all fees charged by the reseller for the Services and no payments will be due from Customer to HOTELS QUALITY, (ii) HOTELS QUALITY makes no warranties regarding the Services, Service Data, Third Party Content or any other aspect of the Services, (iii) any warranties made by reseller are solely those of reseller and not HOTELS QUALITY, and (iv) HOTELS QUALITY’s indemnification obligation in Section 8 will not apply to Customer. Customer’s remedies with respect to any issues Customer may have regarding the Services will lie solely with the reseller and as such, Customer must contact the reseller. Customer agrees that HOTELS QUALITY may suspend or terminate Customer’s and its Users’ accounts or their right to receive the Services at the reseller’s instructions, including any instruction based on Customer’s failure to pay the reseller any amounts owed by Customer to reseller for the Services.
(b) Customer owns or has rights to all Customer Confidential Information provided to HOTELS QUALITY and all Personally Identifiable Information of its guests, submitted to HOTELS QUALITY via the Services. HOTELS QUALITY will maintain the confidentiality of such Confidential Information as described in Section 4. At the same time, Customer understands that the Services operate by aggregating Third Party Content, and agrees that information will not be deemed confidential to the extent it is publicly available or otherwise constitutes Third Party Content. For example, Customer’s complete guest list is Customer Confidential Information and will be protected as provided below. Individual guests may post online reviews on third party sites such as Tripadvisor regarding their hotel visits. The names of such guests and their reviews are Third Party Content and not Customer Confidential Information.
(c) In order to provide the Services HOTELS QUALITY gathers, stores, analyzes, displays and uses a variety of information, including without limitation (i) publicly available content such as reviews and hotel rankings posted on third party web sites, feedback and information provided by guests at Customer facilities, posts from social media sites and forums, news articles, blog posts, photos and videos, and (ii) commercially available data regarding businesses in Customer’s industry (such as hotel occupancy rates, average daily rates and revenue per available room) (collectively “Third Party Content”). Some Third Party Content is public information (such as online hotel reviews) and other Third Party Content is proprietary to its creators (such as industry research data). Third Party Content may be owned by the people or entities that publish such content, or by other parties.
(d) The Services may include tablet systems and other hardware installed in Customer facilities. Hardware is configured to be used only with the Services. Hardware may not be reconfigured, used to run any other applications, or used for any other purpose. Customer may purchase the hardware or lease it from HOTELS QUALITY, as specified in the Service Order Form. If leased, all hardware remains the property of HOTELS QUALITY (or its third party equipment provider) and must be returned to HOTELS QUALITY within 15 days following termination of the applicable Services. Customers who do not return the hardware within this time period will be billed HOTELS QUALITY’s cost to replace the hardware.
(a) Confidential Information shall mean any of the following information that is disclosed by HOTELS QUALITY to Customer or by Customer to HOTELS QUALITY: (i) any of HOTELS QUALITY’s or Customer’s proprietary analysis tools, software and intellectual property, including software and intellectual property related to the Services, human resources or other employee information; business plans; details of internal operations and processes; product research and development information; marketing plans or strategies; product pricing information including but not limited to pricing, pricing assumptions, pricing proposals, pricing quotes and pricing models; customer lists or information; supplier lists or information; all information provided by either party to the other regarding the disclosing party’s business infrastructure, network, employees, guest names and their email addresses, any non-public financial or business information; (ii) industry research data that specifically identifies Customer, such as hotel occupancy rates, average daily rates and revenue per available room for Customer properties; (iii) any other information reduced to writing and clearly marked confidential; or (iv) any other information that a reasonable party would consider confidential.
(b) Receiving party agrees: (i) to treat Confidential Information as strictly confidential; and (ii) not to disclose Confidential Information in any way to any person or entity without prior consent of disclosing party, except to its employees or contractors who are under confidentiality obligations at least as stringent as those set forth herein; (iii) not to use disclosing party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement; and (iv) to return or destroy on demand all Confidential Information which has been supplied to or acquired by receiving party.
(c) The above restrictions on disclosure or use of Confidential Information shall not apply to: (i) information which at the time of disclosure by disclosing party to receiving party was already published or otherwise generally available to the public, or subsequently becomes generally available to the public other than through the fault of the receiving party; (ii) information which the receiving party can show was rightfully in its possession at the time of disclosure; (iii) information which becomes known independently to the receiving party from a person or entity who rightfully acquired such information under no obligation of confidentiality; or (iv) information which is independently developed by the receiving party’s employee(s) not having access to the disclosing party’s Confidential Information.
(d) In the event that receiving party receives a request to disclose all or any part of disclosing party’s Confidential Information under the terms of a valid and effective subpoena or court order, receiving party may disclose such Confidential Information, provided that it immediately notifies disclosing party (if permitted) with respect to such information of the existence, terms and circumstances surrounding such a request so that disclosing party may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement.
(e) The obligations under this Section 4 shall survive expiration of this Agreement for five (5) years and indefinitely as to each party’s trade secrets.
(a) HOTELS QUALITY hereby grants Customer and its Users a nonexclusive and nontransferable right to access and use the Services solely for the internal business purposes of Customer during the term of and in accordance with this Agreement. HOTELS QUALITY will provide Customer with access to all the functionality currently included in the Services identified on the applicable Service Order Form. HOTELS QUALITY may, from time to time in the ordinary course of business, refine, modify, or improve current functionality or develop additional functionalities, the latter of which may be offered for free or at additional cost.
(b) Customer, and each User, agrees not to: (i) permit any third party to access or use the Services; (ii) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (iii) modify or make derivative works based upon the Services; (iv) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services; or (v) frame, mirror or reverse engineer or access the Services in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Services, or (C) copy any ideas, features, functions or graphics of the Services; (vi) attempt to access any other HOTELS QUALITY systems that are not part of these Services; or (vii) excessively overload the HOTELS QUALITY systems used to provide the Services.
(c) Service Data, HOTELS QUALITY Confidential Information and Third Party Content may not be modified, republished, reproduced, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of HOTELS QUALITY and if applicable, the rights holder of Third Party Content (such as industry research data). Customer and all Users must abide by all copyright notices, information, or restrictions related to any Service Data and Third Party Content.
(d) Customer acknowledges that (i) HOTELS QUALITY aggregates Third Party Content from various public web sites (including HOTELS QUALITY sites) and from commercial databases, and (ii) Third Party Content may be obtained by HOTELS QUALITY or licensed to HOTELS QUALITY by third parties subject to copyright and other restrictions on re-use or redistribution. Customer understands the foregoing and agrees that it is requesting HOTELS QUALITY to aggregate and present both publicly available and proprietary Third Party Content to Customer and its Users.
(f) “HOTELS QUALITY” and the HOTELS QUALITY logo, as well as certain other of the words and logos displayed in the Services, constitute trademarks, trade names, or service marks (“Marks”) of HOTELS QUALITY or other entities. Customer is not authorized to use any such Marks without prior written consent from HOTELS QUALITY. Ownership of all such Marks and the goodwill associated therewith remains with HOTELS QUALITY those other entities.
(a) Customer is responsible for obtaining and maintaining all equipment and services needed for access to and use of the Services.
(b) Customer, and each User, agrees not to use the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit: (i) material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, constitutes hate speech, or is otherwise offensive or objectionable; (ii) unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (iii) material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) Content that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor); or (v) any Content that is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.
(c) Customer, and each User, further agrees not to: (i) impersonate any person or entity, or otherwise misrepresent Customer’s affiliation with a person or entity; (ii) interfere with or disrupt HOTELS QUALITY servers or servers or networks connected to HOTELS QUALITY, or disobey any requirements, procedures, policies, or regulations of networks connected to HOTELS QUALITY.
(d) The Services may integrate third-party services (for example, Twitter or Facebook) allowing Customer to post information to web sites outside the Services. Customer, and each User, agrees to inform itself of the terms and conditions of each of these integrated third-party services prior to use, and abide by such terms and conditions if Customer utilizes such integrated services.
(e) If it is determined at any time that Customer or any User is in breach of this Section 5, HOTELS QUALITY may suspend Customer’s access to the Services until the issue is resolved to HOTELS QUALITY’s satisfaction, if Customer does not first remedy the issue within the cure period set forth in HOTELS QUALITY’s notice to Customer.
(f) Following registration for the Services, Customer will be asked to provide an user name and password for a master account (“Master Account”). Using the Master Account, Customer can create, modify, or delete accounts for Users (each, a “User Account”) up to the maximum number specified by HOTELS QUALITY. Customer’s subscription is personal to Customer, and Customer and each User are prohibited from sharing user names and passwords. Customer and each User are responsible for maintaining the confidentiality of all passwords for the Master Account and User Accounts, and Customer and its Users are exclusively responsible for all activities that occur within their accounts. Customer and each User agree to immediately notifY HOTELS QUALITY of any unauthorized use of their accounts or any other breach of security related to the Services of which Customer or a User becomes aware. HOTELS QUALITY reserves the right, with notice to Customer, to change the password to the Master Account or any User Account if HOTELS QUALITY believes that the applicable password is no longer secure.
(g) Certain Services permit Customers to send email, SMS and other messages to their guests. The sending of commercial messages is regulated by law, including CAN-SPAM and the Telephone Consumer Privacy Act. SMS messaging is further regulated by mobile service carriers (“Carriers”) and by the policies and best practices of the Mobile Marketing Association and the CTIA, which collectively impose requirements regarding the integrity of SMS content and compliance with acceptable use policies. Customer acknowledges and agrees that it is responsible for complying with all applicable laws, published rules and policies regarding communication with its guests. Customer represents and warrants that it has obtained written or electronic opt-in permission from each guest to send messages to that guest, and agrees that if a guest opts out of a specific form of messaging from Customer (e.g. SMS), Customer will update the Services accordingly. Customer may not send any messages to a guest through the Services unless such messages are directly related to the type of information the guest has opted-in to receive from Customer. HOTELS QUALITY will notify Customer if it becomes aware of any violation or perceived violation of applicable laws, published rules and policies, and Customer is immediately obligated to correct any actual violation. HOTELS QUALITY may suspend Customer’s use of messaging features in the Services until a violation is cured. Customer will remain responsible for ensuring that it complies with all applicable laws, rules and regulations when communicating with its guests via the Services and will keep HOTELS QUALITY fully indemnified in accordance with Section 8 of this Agreement in respect of any breach of this Section 6(g).
HOTELS QUALITY will bill Customer and Customer agrees to pay all fees for the Services in accordance with the Service Order Form. Customer is responsible for all taxes. Except as otherwise provided on a Service Order Form, all fees are due within 30 days of HOTELS QUALITY’s invoice. HOTELS QUALITY may suspend the Services until all undisputed payments due for the Services are received. If there is a conflict in terms between this Agreement and an HOTELS QUALITY invoice or any purchase order submitted by Customer, this Agreement shall control. Any additional or different terms in invoices, acknowledgment forms, purchase orders, or other communications, are deemed material, are objected to, and rejected by the parties, unless agreed to in a signed writing by the parties.
(a) Customer agrees to indemnify, defend, and hold harmless HOTELS QUALITY, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents (together, the “HOTELS QUALITY Indemnitees”) from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys’ fees) (together, “Claims”) brought by third parties (including Users) arising from or relating to (i) any information Customer or any User submits, posts, or transmits through the Services or any other act or omission of Customer or any User in connection with the Services, (ii) Customer’s, or any User’s, grossly negligent use or intentional misuse of the Services, (iii) Customer’s, or any User’s, breach of its material obligations under this Agreement including without limit Sections 6(g) and 9(a), and (iv) Customer’s, or any User’s, violation of any rights of any other person or entity arising out of or related to the use of the Services.
(b) HOTELS QUALITY agrees to indemnify, defend, and hold harmless Customer from all third party Claims finally awarded against Customer or agreed to in a settlement by HOTELS QUALITY to the extent arising from the Services violating any third-party’s intellectual property right, including trademark, copyright or patent. HOTELS QUALITY will conduct the defense of any such Claim, any related proceedings and actions, and all negotiations for settlement or compromise of the same. Customer may in its discretion participate in the defense of any such Claim and any related proceedings and actions at Customer’s expense. The foregoing obligations are conditioned on Customer notifying HOTELS QUALITY promptly in writing of such action, giving HOTELS QUALITY sole control of the defense thereof and any related settlement negotiations, and cooperating in such defense. If the Services become, or in HOTELS QUALITY’s opinion are likely to become, the subject of an infringement or misappropriation claim, HOTELS QUALITY may, at its option and expense, either (i) procure for Customer the right to continue exercising the rights licensed hereunder; (ii) replace or modify the Services so that they become non-infringing and remain substantially functionally equivalent; or (iii) refund to Customer any advance fees paid by Customer to HOTELS QUALITY pursuant to Section 6 for periods during which Customer is unable to use the affected Services due to such Claim, proceeding, action or settlement, and terminate this Agreement upon written notice to Customer. Notwithstanding the foregoing, HOTELS QUALITY will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim based upon (w) any unauthorized use or distribution of the Services by Customer or any of its Users; (x) any use of the Services in combination with other products, software, or data not supplied by HOTELS QUALITY; (y) any modification of the Services by any person other than HOTELS QUALITY or its authorized contractors; or (z) any Third Party Content, or the collection, storage or provision of Third Party Content. This Section states HOTELS QUALITY’s entire liability, and Customer’s sole and exclusive remedy, for infringement and misappropriation claims and actions.
(c) Neither Customer nor HOTELS QUALITY may settle or compromise any third party Claim involving a claim of indemnity without the prior written consent of the other, which consent shall not be unreasonably withheld.
(b) HOTELS QUALITY AND ITS SUPPLIERS PROVIDE THE SERVICES “AS-IS” AND “AS AVAILABLE” AND DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. HOTELS QUALITY AND ITS SUPPLIERS DO NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES. HOTELS QUALITY AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, RELIABLE, OR ERROR-FREE.
(a) HOTELS QUALITY EXPRESSLY DISCLAIMS ALL LIABILITY, REGARDLESS OF THE NATURE OR THEORY OF ANY CLAIM OR ALLEGED DAMAGES, IN CONNECTION WITH THE COLLECTION, STORAGE, REPRODUCTION, AND PROVISION OF THIRD PARTY CONTENT TO CUSTOMER AND EACH USER, AND THEIR USE OF THIRD PARTY CONTENT.
(b) EXCLUDING ITS INDEMNIFICATION OBLIGATIONS AND ITS CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, NEITHER HOTELS QUALITY NOR CUSTOMER WILL BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE SERVICES, SERVICE DATA, THIRD PARTY CONTENT OR OTHERWISE UNDER THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF HOTELS QUALITY FOR ALL OTHER CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICES, SERVICE DATA AND THIRD PARTY CONTENT, WHETHER SOUNDING IN TORT, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO HOTELS QUALITY WITHIN THE PRECEDING SIX (6) MONTHS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL HOTELS QUALITY’S RESELLERS OR SUPPLIERS HAVE LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
(c) HOTELS QUALITY’s inclusion of a link via the Services to any other web site or Internet resource is for Customer’s convenience only and does not signify HOTELS QUALITY’s endorsement of such other web site or Internet resource or its contents. HOTELS QUALITY shall have no responsibility or liability for any information, software, or materials obtained from third-party web sites or Internet resources.
Either party may terminate this Agreement for a material breach by the other party if, within 30 days after receiving notice of the non-breaching party’s intent to terminate, the breaching party fails to cure such material breach. If Customer terminates this Agreement for any other reason, Customer will be responsible for paying any remaining contracted fees that would have been due during the term if Customer had not terminated. Sections 3, 4, 5(b) – 5(f), 8, 9(b), and 10 – 12 will survive the termination or expiration of this Agreement for any reason.
(a) Each party, at its sole respective cost and expense, shall comply with all present and future federal, state and local laws, ordinances, rules, regulations, directives and guidelines applicable to its performance or use, as applicable, of the Services (collectively “Laws”) including, without limitation, all data privacy and processing Laws, and all intellectual property and licensing Laws.
(b) Nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, employer-employee, or joint venture relationship between the parties. There is no fiduciary duty or special relationship of any kind between the parties to this Agreement. Each party expressly disclaims any reliance on any act, word, or deed of the other party in entering into this Agreement.
(c) If any portion of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of the Agreement shall continue in force and, if needed, the parties or a court of competent jurisdiction shall substitute suitable provisions having like economic effect and intent. All waivers by either party will be effective only if in writing. Any waiver or failure by either party to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The section headings of this Agreement are for convenience and are not to be used in interpreting this Agreement. The words “includes” and “including” shall be read to mean “including without limitation”. This Agreement may only be modified as provided for herein, and otherwise cannot be modified, terminated or amended in any respect orally or by conduct of the parties without written agreement by the parties.
(d) HOTELS QUALITY may freely assign this agreement to any other party without consent or notice. Customer may assign this agreement to a third party without HOTELS QUALITY’s consent. Customer shall notify HOTELS QUALITY within thirty (30) days following any assignment of this Agreement by, and/or any change of control of, Customer and HOTELS QUALITY will have the right to reevaluate and modify the pricing and/or payment terms under this Agreement if the pricing assumptions or models are reasonably determined by HOTELS QUALITY to have changed as a result of such assignment or change of control. A User may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without HOTELS QUALITY’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.
(f) Each party agrees that it has reviewed and approved this Agreement, and accordingly any presumption or rule of construction permitting ambiguities to be resolved against the drafting party shall not be employed in the interpretation or application of this Agreement.
(g) This Agreement shall be construed under the laws of Spain, notwithstanding any choice-of-law principle that might dictate a different governing law. Each party irrevocably agrees, consents and submits to the exclusive jurisdiction of and venue in the federal and state courts located in Madrid, Spain with respect to any dispute arising out of or relating in any way to this Agreement.