Contract Terms and Conditions

Contract Terms and Conditions


1 DEFINITIONS: the following terms will have the meanings set forth below:

A “Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under common control with, such entity. For purposes of this Agreement, “control” (including the terms “controlled by” and “under common control with”) shall mean the power, directly or indirectly, to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.

B “Confidential Information” means any confidential or proprietary information of a party that is disclosed in any manner and in any media to the other party in connection with or as a result of discussions related to this Agreement, and which at the time of disclosure either (a) is marked as being “Confidential” or “Proprietary”, (b) is otherwise reasonably identifiable as the confidential or proprietary information of the disclosing party, or (c) under the circumstances of disclosure should reasonably be considered as confidential or proprietary information of the disclosing party. Specifically, Confidential Information includes (i) the existence, terms and conditions of this Agreement; (ii) all types of proprietary technical or business information, including but not limited to data, know-how, formulas, algorithms, processes, designs, drawings, schematics, plans, strategies, specifications, requirements, standards and documentation, reports, pricing, market, marketing or demographic information, software, trade secrets, research, analyses, inventions, ideas and other types of nonpublic information. With respect to Licensee, Confidential Information shall also include any and all information transmitted to or stored by Licensor in connection with performance of its obligations under this Agreement, including, but not limited to, personally identifiable information of employees or customers of Licensee or its Affiliates, including name, address, phone number, e-mail address, date of birth, social security number, credit card information, drivers license number, account numbers, PINs and/or passwords, and any other information that could reasonably identify a person.

C “Documentation” means the user manuals and operator instructions related to the LodgIQ System that are furnished by Licensor to Licensee in any format, including paper and electronic, in connection with the LodgIQ System.

D “IP Rights” means any and all rights that may exist under patent law, copyright law, publicity rights law, moral rights law, trade secret law, trademark law, unfair competition law or other similar protections, whether or not such rights are registered or perfected.

E “Licensee Data” means any data entered into or uploaded to the LodgIQ System or otherwise supplied to Licensor by Licensee and any reports resulting from Licensee’s use of the LodgIQ System.

F “Licensee Marks” means Licensee’s trade names, trademarks, service names, service marks, logos and trade dress.

G “LodgIQ RM” means Licensor’s LodgIQ RM™ and LodgIQ Mobile RM™ software.

H “LodgIQ System” means the combination of Licensor’s LodgIQ software and Licensor’s application server that make the LodgIQ software available for use over the Internet.

I “Services” means the services provided by Licensor as identified on the cover page, and such other services that are provided by Licensor from time to time under this Agreement.

J “Virus” means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by the LodgIQ System in any manner.

2 General

A Subject to the terms and conditions herein, Licensor hereby grants Licensee the non-exclusive, non-transferable license to access and use the LodgIQ System solely for facilities and rooms specified on the cover page.

B Licensee hereby grants to Licensor a non-exclusive, non-transferable, license to reproduce, distribute, create derivative works publicly display and electronically display the Licensee Data and Licensee Marks solely as necessary to fulfill its obligations under this Agreement.

C Licensor may from time to time agree to perform additional services (which will be considered part of the Services) on a time and materials basis. Such services will be specified in written statements of work that reference this Agreement and are considered to be part of this Agreement for all purposes.

3 Licensor Responsibilities

A Access. Licensor shall, upon Licensee’s request, provide each Licensee-authorized user of the LodgIQ System with a unique user ID and password (“User Credentials”) for accessing the LodgIQ System via the Web Site. Licensor shall, as a part of Licensor’s support of the LodgIQ System and the Web Site, provide or replace User Credentials as necessary to allow Licensee’s access to and use of the LodgIQ System.

B Notice of System Requirements. Licensor will notify Licensee of any software or hardware required for successfully installation and setup of the LodgIQ System at least ten (10) business days prior to the scheduled start date of such installation and setup. LodgIQ is currently optimized for Internet Explorer web browser and requires no additional hardware.

C Security. Licensor shall provide a secure environment for all of Licensee’s Confidential Information and any hardware and software (including servers, network and data components) to be provided or used by Licensor as part of its performance under this Agreement.

D Intentionally omitted.

E Resources and Support. Licensor shall, throughout the Term, make available such resources, including Licensor personnel, as are reasonably required to: (a) train designated employee(s) of Licensee in the use of the LodgIQ System; (b) support the obligations of Licensee provided in Section 4; (c) develop modifications to the LodgIQ System as agreed to by the parties in any exhibit hereto; and (d) otherwise support the LodgIQ System as provided under this Agreement and any exhibits hereto. In addition, Licensor shall provide Licensee with the name and contact information for key programmers who are familiar with the source code for the LodgIQ System, and shall make such programmers available for transition purposes in the event that Licensee terminates this Agreement pursuant to Section 6.

4 Licensee Responsibilities

A Licensee will use the LodgIQ System only for Licensee’s internal business operations and will not permit its use by or for the benefit of anyone other than Licensee. Licensee will not have the right to re-license or sell rights to access and/or use the LodgIQ System, except as expressly provided herein. Licensee may not modify, translate, reverse engineer, decompile or create derivative works based upon the LodgIQ System. If Licensee creates any derivative works, whether created intentionally or not intentionally, such derivative works shall be assigned to Licensor.

B Licensee must: (a) provide for its own access to the Internet and pay any service fees associated with such access, and (b) provide all equipment necessary to make such connection to the Internet, including a computer, modem and specified browser and plug-in software.

C Except to the extent included in the Services, Licensee shall be solely responsible for managing, editing, reviewing, deleting, creating (where indicated herein), and otherwise controlling the content of all Licensee Data.

D Licensor has granted access to the LodgIQ System only for Licensee’s properties set forth on Exhibit A to this Agreement. Licensee shall provide written notice of any request to use of the LodgIQ System by any of Licensee’s additional properties. Licensor shall grant access to additional properties in accordance with terms set forth in a written statement which shall be attached to and incorporated by reference to this Agreement.

5 Payment Method and Terms

A Billing; Invoicing. Unless otherwise provided on the cover page, Licensor will invoice Licensee for access to and use of the LodgIQ System in arrears on a monthly basis. Such invoices will be complete and in accordance with the amounts stated on the cover page, and no additional charges may be added without Licensee’s written consent. Fees for Services performed on a time and materials basis, if any, shall be billed monthly as incurred. Terms are net 30 from Licensee’s receipt of invoice.

B Taxes; Expenses. Fees do not include taxes. If Licensor is required to pay or collect any federal, state, local, or value-added tax on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Licensor’s net income, then such taxes and/or duties will be invoiced to Licensee. Licensor shall be solely responsible for out-of-pocket expenses incurred in connection with the Services, including travel expenses, food and lodging. Equipment, Materials, Supplies and Services. Licensor shall provide at its expense, without remuneration or reimbursement of any kind, all equipment, materials, supplies and services required in performing the Services, except for equipment, materials, supplies and services, if any, to be provided for paid for by Licensee as specifically set forth in this Agreement.

6 Term and Termination

A The Initial Term of this Agreement, the duration of which is stated on the cover page, will begin on the Effective Date.

B Either party may terminate this Agreement for material breach, provided, however, that the terminating party has given the other party at least thirty (30) days written notice of and the opportunity to cure the breach. Termination for breach will not preclude the terminating party from exercising any other remedies for breach.

C Upon termination of this Agreement: (i) Licensor will promptly return or destroy, at Licensee’s sole discretion, all Licensee Data; (ii) Licensee will return to Licensor or destroy all copies, or portions thereof, of any portion of the LodgIQ software in Licensee’s possession; (iii) Licensee’s outstanding liability shall be limited to the price for all products and services delivered to and accepted by Licensee prior to the effective date of termination; and (iv) Licensor will reasonably cooperate with Licensee for an orderly transition of the services contemplated by this Agreement.

7 Ownership of Intellectual Property

A Title to all proprietary rights in the LodgIQ System and Licensor Data, including, but not limited to, modifications made in connection with the Services, will remain in and be the sole and exclusive property of Licensor.

B Licensee shall exclusively own all right, title and interest in Licensee Data, including all copyrights and any other IP Rights and any modifications made thereto in connection with the Services or otherwise in connection with this Agreement. Nothing in this Agreement shall be construed as conveying any rights or interest in the Licensee Data to Licensor.

8 Confidentiality

A Licensee acknowledges that the LodgIQ System and other Licensor Confidential Information is proprietary to and valuable to Licensor. Licensee will safeguard the right to access the LodgIQ System and other software installed on Licensor’s application server using the same standard of care that Licensee uses for its own confidential materials.

B Licensor acknowledges that the Licensee Confidential Information is proprietary to and valuable to Licensee. All Licensee Confidential Information Licensee disclosed to Licensor in connection with the performance of this Agreement and residing on the LodgIQ System will be held as confidential by Licensor and will not, without the prior written consent of Licensee, be disclosed or used for any purposes other than the performance of this Agreement. Licensor will safeguard the confidentiality of such data using the same standard of care that Licensor uses for its own confidential materials, but in no event less than reasonable care.

C The foregoing obligations do not apply to information that: (i) is or becomes, through no act or failure to act on the part of disclosing party, generally known or available; (ii) is known by the disclosing party at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to the disclosing party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the disclosing party as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by the party to whom the information belongs. Further notwithstanding the foregoing, disclosure of information will not be precluded if such disclosure: (i) is in response to a valid order of a court of competent jurisdiction or other governmental body of the United States, acting within its authority; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.

9 Representations and Warranties

A General. Licensor represents and warrants to Licensee that (a) Licensor is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware and has all rights and power necessary to execute, deliver and perform its obligations under this Agreement, including the right to grant the licenses and provide the services granted and provided hereunder; (b) the execution, delivery and performance of this Agreement by Licensor (i) has been approved by any necessary company action and (ii) is not contrary to, or in conflict with, the formation and governance documents of Licensor, any material agreement by which Licensor is bound or any applicable law; (c) Licensor’s employees assigned to provide the LodgIQ System have the knowledge, expertise and training necessary for Licensor to effectively perform its duties and responsibilities hereunder; and (d) the products and services delivered or to be delivered pursuant to this Agreement are not contrary to, or in conflict with, nor do they infringe upon or misappropriate, any patent, trademark, copyright, trade secret or other IP Right of any person or entity and that there are no such claims as of the date hereof.

B Functional Warranty. During the Initial Term (“Warranty Period”), the LodgIQ System, including any modifications thereto that are made by Licensor or pursuant to Licensor’s instructions, shall not contain any material defects, and shall function in conformity with the Documentation and any descriptions and specifications set forth on the cover page. Licensor shall promptly, and will in no event take greater than thirty (30) days to, correct any errors in the LodgIQ System identified by Licensee at no cost to Licensee.

C Viruses. Licensor represents, warrants and covenants that it has used, and will use, commercially reasonable efforts to ensure against introduction of any Virus into Licensee’s systems. Licensor shall immediately advise Licensee, in writing, upon reasonable suspicion or actual knowledge that the LodgIQ System may contain a Virus. In the event that a Virus is found to have been introduced into Licensee’s systems by the LodgIQ System, Licensor shall use all reasonable commercial efforts, at no additional charge, to assist Licensee in reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, to assist Licensee to the same extent to mitigate and restore such losses.

D Services. Licensor represents, warrants and covenants that all maintenance and other Services performed pursuant to this Agreement will be performed in a first-class, professional and workmanlike manner, consistent with the highest professional and industry standards and practices prevailing, and that the equipment, if any, and materials provided by it hereunder shall be free from defects in workmanship and/or materials. Licensor agrees that any damage arising from any breach of this representation and warranty shall be promptly remedied by Licensor at its sole expense. Licensor shall provide all required work product to Licensee promptly for Licensee’s review, provided no such work product shall be deemed accepted and no rights of Licensee shall be deemed waived at any time except as may be expressly stated in an acceptance or waiver signed by a duly authorized representative of Licensee, and then only as against the waiving party and to the specific, express extent of such waiver.

E Downtime. Licensor guarantees that the LodgIQ System will be fully functional and responsive to user input through an authorized Web browser 99.5{97f5de9008dbce478b9914384118bb17bc275beb18053f10d4c63e347dc71139} of each monthly period. For purposes of this Agreement, “Downtime” means that period of time when the LodgIQ System fails to respond within 60 minutes of user input through an authorized Web browser. Downtime does not include “Permitted Downtime,” the period of time when the LodgIQ System is not available as a result of maintenance and upgrade work occurring between the hours of 11 p.m. and 2 a.m. EST, which time will not exceed four (4) hours in a month.

F Licensee. Licensee represents and warrants to Licensor that (i) Licensee owns all Licensee Data and that Licensor’s use or distribution of such Licensee Data does not and will not violate the rights of any third party and (ii) the Licensee Data does not and will not contain any information or data that violates or conflicts with any federal, state or local law, rule or regulation or any regulation or requirement of any real estate or home related body or organization applicable to Licensee.


10 Indemnification

A Licensor. Licensor shall indemnify, defend and hold harmless Licensee, as well as Licensee’s Affiliates, and each of their officers, shareholders, directors, employees and agents (collectively, the “Licensee Indemnified Parties”), from and against any and all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, deficiencies, penalties, taxes, levies, fines, judgments, settlements, expenses (including attorneys’ and accountants’ fees and disbursements) and costs (collectively, “Claims”), incurred by, borne by or asserted against any of the Licensee Indemnified Parties to the extent such Claims relate to, arise out of or result from: (i) any intentional or willful misconduct or negligence of any employee, agent or subcontractor of Licensor; (ii) breach of any representation or warranty of Licensor contained in Section 9 above; or (iii) any actual or alleged infringement or misappropriation of any IP Rights by the LodgIQ System, or any other hardware, software, equipment or services provided pursuant to this Agreement. In the event of a Claim under Section 10(A)(iii) above, and in addition to all other obligations of Licensor in this Section 10 Licensor shall, at its expense, either (a) procure for Licensee the right to continue use of the affected products or services, or any component thereof; (b) replace the affected products or services with non-infringing products or services satisfactory to Licensee; or (c) modify the affected products or services to be non-infringing and functionally equivalent. If Licensor cannot accomplish any of the foregoing within a reasonable time and at commercially reasonable rates, then Licensee shall be entitled to terminate this Agreement and receive from Licensor a refund of the price paid to Licensor for access to and use of the LodgIQ System. In addition to the foregoing, Licensor shall provide Licensee with comparable temporary replacement products and services or reimburse Licensee for the reasonable costs incurred by Licensee in obtaining replacement products and services in the event Licensee cannot use the LodgIQ System

B Licensee. Licensee shall indemnify, defend and hold harmless Licensor, as well as Licensor’s Affiliates and licensees, and each of their officers, shareholders, directors, employees and agents (collectively, the “Licensor Indemnified Parties”), from and against any and all Claims incurred by, borne by or asserted against any of the Licensor Indemnified Parties to the extent such Claims relate to, arise out of or result from: (i) any intentional or willful misconduct or negligence of any employee or agent of Licensee; or (ii) breach of any representation or warranty of Licensee contained in Section 10 above.

11 Limitation of Liability

Except for breach of confidentiality, claims of infringement OR as otherwise set forth herein, NEITHER PARTY SHALL be liable TO THE OTHER PARTY for ANY special, PUNITIVE, incidental, indirect or consequential damages arising OUT OF OR RELATED TO THIS AGREEMENT, whether in contract, tort or otherwise, even if THE PARTY has been advised of the possibility of such loss or damages.

12 Miscellaneous

A Relation of Parties. Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.

B Assignment. Licensor may not assign this Agreement, in whole or in part, without the prior written consent of Licensee, and such consent will not be unreasonably withheld. Licensee may assign this Agreement, in whole or in part, at any time. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.

C Choice of Law. This Agreement and the rights and obligations of the parties under this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of California, excluding its rules of conflicts of law. Any lawsuit arising under this Agreement will be filed in, and the parties submit to the jurisdiction of, the State or Federal courts located in New York, New York.

D Attorneys’ Fees. If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.

E Severability. If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.

F Waiver and Modification. The waiver by any party of any breach of this Agreement will not be construed to be a waiver of any succeeding breach. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.

G Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.

H Survival. The Confidentiality, Representations and Warranties, Limitation of Liability and Indemnification sections, as such terms are applicable to the parties hereto, shall survive any termination or expiration of this

I Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute a single document. Facsimile copies shall be considered acceptable execution copies of all agreements and schedules.