Partner Hub Terms & Conditions Thank you for choosing to use the services of Hotel Engine, Inc., a Delaware corporation, d/b/a Engine (“Engine,” “We,” “Us,” or “Our”). These Terms and Conditions set forth the terms on which We will provide access to, and use of, the Website and other Services (as both defined below) to you, a user of the Services (“You,” “Your,” or “Subscriber”). By indicating acceptance of these Terms of Service, or by otherwise accessing or using "https://partnerhub.hotelengine.com" (the “Website”) or any other linked pages, features, content, or application services offered from time to time by Engine on or through the Website and/or Engine extensions, apps or software applications (collectively, the “Services”), You acknowledge, and agree to be bound by, the terms of this Agreement. When You sign up for, or access or use the Website and/or other Services on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind such entity to this Agreement, and the terms “You” or “Your” herein shall include you, the individual user, such entity, and the subject hotel/property(ies) (the “Hotel”). You, the individual user, represent and warrant that You are at least eighteen (18) years old and able to enter into contracts. Engine reserves the right to change any or all of the terms or conditions contained herein by posting revised terms on the Website. We may change or discontinue the Services, or any features of the Services, at any time. THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO SECTION 13 BELOW. If You have any questions about this Agreement, please contact Us. 1. ADDITIONAL DEFINITIONS “Data” means the performance analytics data of the Subscriber provided by Engine, including Subscriber's performance analytics and insights, business enablement levers, content profile, target marketing and advertising campaigns, and customer feedback and escalations. “PII” means information that can be associated with or traced to any individual, including an individual's name, address, telephone number, e-mail address, credit or debit card information, social security number or other similar specific factual identifying information, regardless of the media on which such information is stored. “Privacy Policy” means Engine’s privacy policy located at https://www.hotelengine.com/privacy-policy/, as amended from time to time. “Partner Hub Platform” means the Website where any User can log in to access the Services and Subscriber's Data. “Subscriber Data” means any information belonging to the Subscriber which is uploaded to the Partner Hub Platform by the Subscriber or a User. “Subscription” means the terms and conditions associated with Subscriber's right to use the Services including, but not limited to, limits on Items and the Subscription Period. “Subscription Period” means the period of time in which Subscriber and its Users are entitled to use the Services pursuant to these terms and conditions. “User” shall mean any individual that Subscriber has granted access to its Partner Hub Platform. 2. ENGINE OBLIGATIONS, SERVICES AND SUPPORT Subject to these terms and conditions, Engine will use commercially reasonable efforts to provide Subscriber access to the Services and Partner Hub Platform. Hotel Engine shall use reasonable efforts consistent with prevailing industry standards to maintain the Website in a manner which minimizes errors and interruptions in the Services. Access to the Website may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Engine or by third-party providers, or because of other causes beyond Engine's reasonable control, but Engine shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. At its option and from time to time, Engine may modify the Services (e.g. to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements). 3. OBLIGATIONS AND REPRESENTATIONS OF SUBSCRIBER You represent and warrant to Engine that: (i) all sign up and registration information You submit is accurate and truthful; and (ii) You will maintain the accuracy of such information. You also certify that You take full responsibility for the selection and use of, and access to, the Services. In addition, You shall take full responsibility and liability for the security of each of Your user names and passwords, and You shall be solely responsible for all use of the Services through such user names and/or passwords. You agree to immediately notify Engine of any unauthorized use of any of the Services or any other breach of security known to You. Additionally, You shall not (directly or indirectly) or permit any third party to: (i) interfere or attempt to interfere with the proper working of the Website, the Services or any activities conducted by the access and/or use thereof; (ii) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape”, “data mine” or in any way gather information, PII, content or other materials from the Services or reproduce or circumvent the navigational structure or presentation of the Services; (iii) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such restriction; (iv) use the Services, or any of Engine's documentation or confidential information, to create any website, software, documentation or service that is similar, in whole or part, to any of the Services, any related software, or any documentation provided in connection therewith; (v) modify, translate, or otherwise create derivative works of any part of the Services; or (vi) copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available any of the Services (including in any service bureau arrangement or otherwise) for the benefit of any third party without the prior written consent of Engine. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber's account or the Equipment with or without Subscriber's knowledge or consent. You shall be solely responsible for keeping a duplicate copy of the Subscriber Data. You agree to Engine's collection, use and sharing of Subscriber's information and the information of its Users as set forth in the Privacy Policy. The Privacy Policy is hereby incorporated by reference into these terms and conditions. 4. RATES You agree that you are an authorized representative of the Hotel property(ies) and have the authority to bind the Hotel to the information provided, including rates, and authorize Engine to rely on such information and the information provided is true, complete, and accurate. The rate information selected by You, whether Last Room Available, Best Available Rate, or the like, shall be applicable to all rooms provided by You, and be binding for a period of no less than one (1) year from the date of Your submission for all bookings made by Engine. After a period of one (1) year, the Hotel will continue to honor such rates unless cancelled or modified with thirty (30) days' notice in writing by You or another authorized representative of the Hotel. 5. GROUP BOOKING PROPOSALS In the event that You or a User respond to a request for a proposal from Engine for a group booking (an “RFP”), You agree that all information submitted in the RFP shall be binding on the Hotel and Engine may rely on the accuracy of the information contained in the RFP. If selected by an Engine customer, at the direction of Engine, You and the customer may enter into a separate agreement. You agree to keep Engine reasonably informed of whether a separate agreement was completed between You and the customer, including providing Engine with any relevant terms of the separate agreement as reasonably requested by Engine. 6. COMMISSIONABLE RATES AND PAYMENT For any rate or RFP submitted by You that indicates a commission to be paid to Engine, you agree to abide by the following terms. You agree to pay Engine the percentage indicated in your rate submission or RFP of all revenue received by the Hotel relating to a booking made by Engine or by its customers. The commission shall not be inclusive of any guests that are no-shows. The commission shall become due and payable to Engine within 30 days of check-out. Hotel Engine's IATA Number is 06662106. You agree to keep and maintain accurate records relating to all hotel stays booked under this Agreement for a period of five (5) years. Upon no less than thirty (30) days notice from Engine, You shall allow Engine or its authorized representatives to audit such records to ensure compliance with this Agreement. In the event that such audit reveals any underpayment of commissions owed to Engine, You shall immediately remit an amount equal to such underpayment. Further, should such audit reveal an underpayment in excess of 5% of the total commissions paid during the previous 12 months, You agree to reimburse Engine for all costs associated with such audit. 7. LICENSE GRANTS AND INTELLECTUAL PROPERTY RIGHTS Subject to these terms and conditions of this Agreement, Engine hereby grants Subscriber a revocable, worldwide, non-transferable, non-exclusive, limited right and license to use the Services in accordance with these terms and conditions herein. Hotel Engine reserves all rights not expressly granted herein in the Application. Subscriber hereby grants Engine a revocable, worldwide, non-exclusive, royalty-free, and sub-licensable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Subscriber Data for the sole purpose of operating and performing the Services for Subscriber and Users. Subscriber further grants to Engine the limited right to use Your name and any related logo to identify You as a customer of Engine in listings of its customers, including in its marketing materials or websites. If You provide to Us (directly or indirectly, and by any means) any comments, feedback, suggestions, or ideas related to the Services (collectively “Feedback”), the Feedback will be the sole property of Engine. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating You in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback. Subscriber recognizes that the Services have substantial monetary value and is considered a trade secret and Confidential Information belonging to Engine. Without limitation, Engine shall retain ownership of all rights, title and interest to the Services including all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Subscriber shall not, and shall not allow third parties, to: (i) sublicense or distribute the Services in any manner; (ii) create derivative works of the Services; (iii) rent, lease, or sell the Services; or (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party. All rights not expressly granted herein are reserved by and for Engine. 8. WARRANTIES AND DISCLAIMERS ENGINE MAKES NO REPRESENTATION OR WARRANTY RELATING TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Subscriber represents and warrants that: (i) none of the materials provided to Engine in connection with the Services infringe, misappropriate or violate any intellectual property or other right of any person or entity; and (ii) it has formalized and instituted a privacy policy, or similar legal disclosure of the use of PII, that discloses some or all the ways the Subscriber gathers, uses, discloses and manages PII. Hotel Engine represents and warrants that: (i) all services pertaining to the Services will be performed in a professional and workmanlike manner; and (ii) it has the right, title, and interest to the Services sufficient to grant the rights granted herein. 9. CONFIDENTIALITY “Confidential Information” means any information which is disclosed by a party (the “Discloser”) in connection with access to the Services, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the other party (the “Recipient”) or any of its employees or agents and that is designated or marked as "confidential" or "proprietary" at the time of disclosure or that, based on the circumstances surrounding the disclosure, the Recipient knows or reasonably should know is considered confidential. Confidential Information specifically includes, without limitation, the Discloser's non-public financial information, and Engine's software and documentation used in connection with the Services provided hereunder. All Confidential Information disclosed by the Discloser hereunder shall not be divulged by Recipient to any third party. The restrictions on disclosure set forth in this Section shall not apply to Confidential Information which: (i) becomes publicly known without breach of these terms and conditions; (ii) the Recipient can show by written records was rightfully in its possession prior to the disclosure by the Discloser or becomes rightfully known to the Recipient without confidential or proprietary restriction from a source other than the Discloser; (iii) is approved for disclosure without the restriction in a written document which is signed by a duly authorized officer of the Discloser; or (iv) is independently developed by the Recipient without reference to the Discloser's Confidential Information. Recipient may use the Discloser's Confidential Information solely for the purpose of exercising its rights and performing its obligations under this Agreement. Recipient agrees to take the same care with the Discloser's Confidential Information as it does with its own information of a similar nature, but in no event with less than a reasonable degree of care. Recipient shall limit access to the Confidential Information to those persons having a need to know such information in order to exercise Recipient's rights and obligations under these terms and conditions. Recipient may disclose Confidential Information: (a) insofar as disclosure is reasonably necessary to carry out and effectuate the terms of these terms and conditions; (b) insofar as the Recipient is required by law or legal proceedings to disclose provided that the Recipient provides the Discloser with prompt written notice of such requirement to enable the Discloser to seek a protective order; (c) insofar as disclosure is necessary to be made to the Recipient's independent accountants for tax or audit purposes; and (d) insofar as the parties may mutually agree in writing upon language to be contained in one or more press releases. 10. LIMITATION OF LIABILITY EXCEPT FOR A BREACH OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 11, A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 9, OR FOR A BREACH OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY'S LIABILITY TO THE OTHER PARTY EXCEED THE FEES PAID OR OWED BY SUBSCRIBER TO ENGINE IN THE ONE YEAR PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. 11. INDEMNIFICATION Indemnification By Engine. Engine will defend, at its expense, any legal proceeding brought against Subscriber to the extent it is based on a third party claim that the use of the Services when used in accordance with these terms and conditions (the "Indemnified Services") is a direct infringement of a United States copyright or trademark, a misappropriation of a trade secret or a United States patent, and will pay all damages finally awarded by a court of competent jurisdiction attributable to such claim, provided that Subscriber: (i) provides prompt notice of the claim to Engine; (ii) gives Engine sole control of the defense and settlement of the claim; (iii) provides to Engine all available information, assistance, and authority to defend; and (iv) has not compromised or settled such proceeding without Engine's prior written consent. Engine shall have no liability for any infringement or claim which results from: (i) the combination, operation or use of the Indemnified Services with any non- Engine-provided equipment, software, or data if such infringement would not have occurred but for such combination, operation or use; (ii) Engine's compliance with designs or specifications of Subscriber; or (iii) use of the Indemnified Services in a manner prohibited under these terms and conditions, in a manner for which the Indemnified Services was not designed, or in a manner not in accordance with the accompanying documentation. THIS SECTION STATES THE ENTIRE LIABILITY OF ENGINE WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES PROVIDED TO SUBSCRIBER. Indemnification by Subscriber. Subscriber shall indemnify, defend, and hold harmless Engine for all claims, liabilities, expenses and damages finally awarded that arise from a third party's claim resulting from: (i) Subscriber's use of the Services in violation of this Agreement; (ii) any infringement or misappropriation of any intellectual property right or other right of any person or entity by Subscriber or any User; or (iii) any death or bodily harm or injury or property damage relating to, caused by or in connection with a customer of Engine’s use of property owned or managed by the Hotel. 12. TERM AND TERMINATION This Agreement shall remain in full force and effect while You use the Website and other Services. Engine may terminate or suspend Your access to the Services at any time with or without notice, for any reason, which termination or suspension may result in the forfeiture and destruction of all information associated with Your account. Engine shall have no liability to You or any third party because of such termination or suspension. Without limiting its termination rights above, Engine may terminate or suspend any and all Services or access or use thereof immediately, without prior notice or liability, if You breach any of the terms or conditions of this Agreement. Upon termination of Your account, Your right to access and use the Services will immediately cease. All provisions of this Agreement, which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, intellectual property-related restrictions, indemnification obligations, warranty disclaimers, and limitations of liability. In addition, all remedies for breach of this Agreement shall survive any termination of this Agreement. 13. GOVERNING LAW, VENUE, AND AGREEMENT TO ARBITRATE This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without regard to the conflict of laws provisions thereof. ANY DISPUTE ARISING FROM OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE FINALLY SETTLED BY ARBITRATION IN THE STATE OF COLORADO, USING THE ENGLISH LANGUAGE IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”) THEN IN EFFECT, BY ONE COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS. JUDGMENT UPON THE AWARD SO RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. THE PREVAILING PARTY IN ANY ACTION TO ENFORCE THIS AGREEMENT SHALL BE ENTITLED TO SEEK RECOVERY OF ALL COSTS INCURRED RELATING TO SUCH ACTION, INCLUDING ITS REASONABLE ATTORNEY’S FEES. 14. MISCELLANEOUS If any provision contained herein is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these terms and conditions of this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Subscriber except with Engine's prior written consent. Engine may transfer and assign any of its rights and obligations under these terms and conditions without consent. The terms and conditions contained herein are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these terms and conditions and Subscriber does not have any authority of any kind to bind Engine in any respect whatsoever. All notices under these terms and conditions will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
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