EXHIBIT A: GENERAL TERMS AND CONDITIONS
1 DEFINITIONS: As used in this Agreement, 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, driver’s 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 RM System that are furnished by Licensor to Licensee in any format, including paper and electronic, in connection with the LodgIQ RM 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 RM System or otherwise supplied to Licensor by Licensee and any reports resulting from Licensee’s use of the LodgIQ RM System
F “Licensee Marks” means Licensee’s trade names, trademarks, service names, service marks, logos and trade dress.
G “LodgIQ RM” means Licensor’s Revenue Management software.
H “LodgIQ RM System” means the combination of Licensor’s LodgIQ RM software and Licensor’s application server that make the LodgIQ RM software available for use over the Internet.
I “Market Insight” all Licensor’s market demand analytics and forecasts.
J “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.
K “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 RM System in any manner.
A Subject to the terms and conditions herein, Licensor hereby grants Licensee the non-exclusive, non-transferable license, during the term of this Agreement, to access and use the LodgIQ RM 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 RM System with a unique user ID and password (“User Credentials”) for accessing the LodgIQ RM System via the Web Site. Licensor shall, as a part of Licensor’s support of the LodgIQ RM System and the Web Site, provide or replace User Credentials as necessary to allow Licensee’s access to and use of the LodgIQ RM System.
B Notice of System Requirements. Licensor will notify Licensee of any software or hardware required for successfully installation and setup of the LodgIQ RM System at least ten (10) business days prior to the scheduled start date of such installation and setup. LodgIQ RM is currently optimized for Google Chrome 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 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 RM System; (b) support the obligations of Licensee provided in Section 4; (c) develop modifications to the LodgIQ RM System as agreed to by the parties in any exhibit hereto; and (d) otherwise support the LodgIQ RM System as provided under this Agreement and any exhibits hereto. In addition, Licensor shall provide Licensee with a system support service. Our basic support includes response to service requests and correction of errors in the Services in accordance with the tier levels reasonably assigned by our business analyst team. Tier levels are designated as follows:
TIER LEVEL DESCRIPTION RESPONSE TIME
Tier 1 Basic Help Desk Resolution Two-Four (2-4) hours
Tier 2 May Require Tech Support Eight (8) hours
Tier 3 Subject Matter Expert Twenty-four (24) hours
Tier 4 Third Party Vendor Support Forty-eight (48) hours (dependent on vendor)
E Customer Support, Training and Enhancements. Following the deployment of the LodgIQ system you will be entitled to additional resources within LodgIQ. Inclusive you are provided with monthly training or Checkpoint calls with one of our Customer Success Team members. Licensor will dedicate up to two (2) hours per month to Licensee for Customer Support and Training set forth herein. From time to time Licensor will upgrade system with new enhancements. Unless otherwise communicated Licensee will have access to new enhancements that apply to LodgIQ System as set forth herein. Additional development and enhancements of the System may require additional fees as outlined in Section 3 (F) below.
F Customer Enhancement(s) and Custom Development. Any (i) Enhancements or additional training above and beyond Section 3 (E) or (ii) any custom development on behalf of Licensee or (iii) special projects or (iv) any services not included in this Agreement shall by performed by Licensor only when confirmed by Licensee. General services will be billed at $150 per hour. Custom development, Special Projects, or enhancements requiring more than five (5) hours of labor require separate scope of work and associated fees. Customer will receive 5 custom reports on top of the standard canned reports. Anything on top of 5 would be deemed as custom development and would be priced on a time and materials basis.
G Market Insights. Licensor will provide access to Licensee’s market’s Destination Insight for hospitality industry leading, holistic, Outside-In market tile. If a Destination Insight market does not already exist, Licensor will develop a Neighborhood Custom Market at no additional fee. Annual Market Insight fees may incur annual increases as outlined in Section 3 (A).
4 Licensee Responsibilities
A Licensee will use the LodgIQ RM 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 RM System, except as expressly provided herein. Licensee may not modify, translate, reverse engineer, decompile or create derivative works based upon the LodgIQ RM System.
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 expressly 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.
5 Data Integration and Data Access
A Property Reservation Data. Property Reservation Data must be provided by the Licensee to the Licensor in order for the Licensor to provide the Services as set forth herein. Property Reservation Data will be provided to Licensor through the interface developed by Licensor between the Services and Licensee systems or third-party systems containing the Property Reservation Data. Licensee is required to provide ample notice to Licensor of any Systems changes that may impact existing developed interfaces. Licensee is responsible to provide required access to Systems providing Reservation Data to allow Licensor ability to access Data sources. Licensor will make all efforts available to maintain all System interfaces between the Services and Licensee systems and Licensee third-party systems.
B Property Shopping Data. Property Shopping Data will be collected using tools developed by Licensor. Licensor will build connectivity with third party vendors, such as providers of central reservation system, booking engines, and channel management systems. Licensee shall provide Licensor with all assistance and access reasonably necessary to enable functionality in the Services to be fully functional. The collection of this data is to increase System capabilities and is not a prerequisite to receiving core System services. Licensee shall be required to pay all fees associated with the Services in accordance with the terms of this Agreement, regardless of whether the Property Shopping Data is included. Licensor shall own all rights to data and interfaces developed to collect Property Shopping Data and Licensee shall own all right to access Property Shopping Data via the System.
6 Payment Method and Terms
A Fees. Your access to and use of the Services, as set forth herein, is provided at the fees set forth in cover page under Schedule of Services. The per room pricing during any such renewal term shall be the same as that during the prior term unless, Licensor has provided Licensee written notice of pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
B Billing; Invoicing. Unless otherwise provided on the cover page, Licensor will invoice Licensee for access to and use of the LodgIQ RM System in arrears on a monthly basis. Such invoices will be complete and in accordance with the amounts agreed to within this agreement, and no additional charges (other than taxes as required by applicable law) 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. Additional wire transfer fees may apply based on Licensee’s payment method. Terms are net 30 from Licensee’s receipt of invoice. Late payments hereunder will accrue interest at a rate of one and a half percent per month, or the highest rate allowed by applicable law, whichever is lower.
C 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. Unless approved by Licensee, Licensor shall be solely responsible for out-of-pocket expenses incurred in connection with providing 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.
7 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. This Agreement will automatically renew for successive twelve (12) month periods (each a “Renewal Term”) unless terminated in writing by either party by providing a written notice of cancellation to the non-terminating party, at least sixty (60) days prior to the expiration of the then current term.
B Either party may terminate this Agreement for material breach, provided, however, that the terminating party has given the other party at least ten (10) days written notice of and the opportunity to cure the breach if the same is the result of a failure of a party to pay any sums due to the other party hereunder and at least thirty (30) days written notice of and the opportunity to cure any other breach. Termination for breach will not preclude the terminating party from exercising any other remedies available at law or equity as a result of such breach.
C Upon termination of this Agreement: (i) if commercially feasible, Licensor will promptly return or destroy, at Licensor’s option, all Licensee Data; (ii) Licensee will return to Licensor or destroy all copies, or portions thereof, of any portion of the LodgIQ RM software in Licensee’s possession and the license granted to Licensee in Section 2(a) shall automatically terminate; (iii) Licensee’s shall continue to remain liable for the costs of all products and services delivered to Licensee prior to the effective date of termination (provided the foregoing shall not limit the exercise of any rights or remedies any rights of Licensor available at law or equity if this Agreement is terminated due to Licensee’s uncured breach); and (iv) Licensor will, at the sole cost of Licensee, reasonably cooperate with Licensee for an orderly transition of the services contemplated by this Agreement.
8 Ownership of Intellectual Property
A Title to all proprietary rights in the LodgIQ RM 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. Nothing in this Agreement shall be construed as conveying any ownership rights in the LodgIQ RM System and Licensor Data to Licensee.
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.
A Licensee acknowledges that the LodgIQ RM System and other Licensor Confidential Information is proprietary to and valuable to Licensor. Licensee will safeguard the right to access the LodgIQ RM System and other software installed on Licensor’s application server using the same standard of care that Licensee uses for its own confidential materials, but in no event less than reasonable care.
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 RM System will be held as confidential by Licensor and will not, without the prior written consent of Licensee, be disclosed to any third parties 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.
10 Representations and Warranties
A General. Licensor represents and warrants to Licensee that (a) Licensor is a limited liability company, duly formed, validly existing and in good standing under the laws of the state of its formation 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 RM System have the knowledge, expertise and training reasonably 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.
B Functional Warranty. During the Initial Term and any Renewal Term of this Agreement (collectively, the “Warranty Period”), the LodgIQ RM 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 in Exhibit A. Licensor shall promptly, and will in no event take greater than thirty (30) days to, correct any errors in the LodgIQ RM System identified by Licensee at no cost to Licensee. The foregoing shall be the sole and exclusive remedy of Licensee relating to the failure of such warranty.
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 RM System may contain a Virus. In the event that a Virus is found to have been introduced into Licensee’s systems by the LodgIQ RM 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 data.
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.
i. Notice of Downtime. Licensor guarantees that the LodgIQ RM System will be fully functional and responsive to user input through an authorized Web browser 99.5% of each monthly period. For purposes of this Agreement, “Downtime” means that the period of time when the LodgIQ RM System fails to respond within 60 seconds of user input through an authorized Web browser. Downtime does not include “Permitted Downtime,” the period of time when the LodgIQ RM 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 is an entity which is duly formed, validly existing and in good standing under the laws of the state of its formation and has all rights and power necessary to execute, deliver and perform its obligations under this Agreement, including the right to grant the licenses hereunder and perform its obligations hereunder; (b) the execution, delivery and performance of this Agreement by Licensee (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 Licensee, any material agreement by which Licensee is bound or any applicable law; (c) 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 (d) 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.
G Disclaimer. EXCEPT AS OTHERWISE STATED HEREIN, EACH PARTY HERETO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
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 reasonable attorneys’ fees) 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 conduct or gross negligence of any employee, agent or subcontractor of Licensor or (ii) any actual or alleged infringement or misappropriation of any IP Rights by the Licensee’s use of the LodgIQ RM System, or any other hardware, software, equipment or services provided pursuant to this Agreement (so long as the same was not caused by the misuse of Licensee or its employees or agents). In the event of a Claim under Section 10(A)(ii) 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 RM System from the date of any such interruption of service as a result of a claim of infringement.
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 conduct or gross negligence of Licensee or any employee or agent of Licensee; or (ii) any actual or alleged infringement or misappropriation of any IP Rights by Licensor’s use of Licensee Data and Licensee Marks in accordance with the terms of this Agreement.
12 Limitation of Liability
Except for breach of confidentiality and a party’s indemnification obligations in Section 10, 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. Except for breach of confidentiality and a party’s indemnification obligations in Section 10, IN NO EVENT SHALL LICENSOR’S LIABILITY HEREUNDER FOR ANY CLAIM OF DAMAGES EXCEED THE AMOUNT PAID BY LICENSEE TO LICENSOR IN THE MOST RECENT SIX (6) MONTH PERIOD.
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. Licensee may not assign this Agreement, in whole or in part, without the prior written consent of Licensor, and such consent will not be unreasonably withheld. 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 New York, without regard to the choice of law provisions or the conflicts of law rules thereof. 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 The City of New York, Borough of Manhattan.
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, and the obligation of Licensee to pay any outstanding sums due to Licensor hereunder, shall survive any termination or expiration of this Agreement.
I Counterparts. 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.