Terms and Conditions

Hotel Engine SPARC Platform – Terms & Conditions Upon acceptance, the following terms and conditions shall be binding onto all Users of the Hotel Engine Supplier Performance Analytics Reservations Content (“SPARC”) Platform. 1. DEFINITIONS “Application” means Hotel Engine’s proprietary software application by which the SPARC Platform may be accessed on or through: (a) https://sparc.hotelengine.com/; (b) any of its subdomains; (c) any domain directed to the https://sparc.hotelengine.com/ domain or any of its subdomains; or (d) any domain that is hosted by or retrieves data or information through Hotel Engine's servers or infrastructure, and including the procedures, methodologies, computer network, design, intellectual property, software, user interface, know-how, technology and systems embodied therein. “Data” means the performance analytics data of the Subscriber provided by Hotel Engine, including Subscriber’s performance analytics and insights, business enablement levers, content profile, target marketing and advertising campaigns, and customer feedback and escalations. “Hotel Engine” means Hotel Engine, Inc., a Delaware corporation. “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 the Hotel Engine privacy policy located at https://www.hotelengine.com/privacy-policy/, as amended from time to time. “SPARC Platform” means the platform where any User can log in to access the Subscriber’s Data. “Subscriber” shall mean the hotel, hotel group, or hotel management group which subscribes to the SPARC Platform. “Subscriber Data” means any information belonging to the Subscriber which is uploaded to the SPARC Platform by the Subscriber or a User. “Subscription” means the terms and conditions associated with Subscriber’s right to use the Application 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 Application pursuant to these terms and conditions. “User” shall mean any individual that Subscriber has granted access to its SPARC Platform. 2. HOTEL ENGINE OBLIGATIONS, SERVICES, AND SUPPORT 2.1 Subject to these terms and conditions, Hotel Engine will use commercially reasonable efforts to provide Subscriber access to the Application and SPARC Platform. Hotel Engine shall use reasonable efforts consistent with prevailing industry standards to maintain the Application in a manner which minimizes errors and interruptions in the Application. Access to the Application may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Hotel Engine or by third-party providers, or because of other causes beyond Hotel Engine’s reasonable control, but Hotel Engine shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. 2.2 Subject to these terms and conditions, Hotel Engine will provide Subscriber with reasonable technical support services as follows: Hotel Engine will provide technical support to Subscriber via both telephone and email on weekdays during the hours of 9:00 AM MST time through 6:00 PM MST, with the exclusion of Federal Holidays (“Support Hours”). Subscriber may initiate a helpdesk ticket during Support Hours by calling NUMBER or any time by emailing EMAIL. Subscriber will be provided with an additional phone number for escalating critical issues outside of Support Hours. Hotel Engine will use commercially reasonable efforts to respond to all support tickets within one (1) business day. 2.3 Hotel Engine shall make all updates to the Application made generally available by Hotel Engine at no charge to Subscriber. However, certain major functional upgrades or enhancements may, in Hotel Engine’s discretion, be considered a new item that will be made available to Subscriber at an additional charge. 2.4 At its option and from time to time, Hotel Engine may modify the Application (e.g. to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements). 3. CONDITIONS OF SUBSCRIBER’S USE OF APPLICATION 3.1 Subscriber will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the SPARC Platform or the Application or any software, documentation or data related to the SPARC Platform or the Application; modify, translate, or create derivative works based on the SPARC Platform or Application (except to the extent expressly permitted by Hotel Engine or authorized in these terms and conditions); use the SPARC Platform or Application for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. 3.2 Subscriber may not remove or export from the United States or allow the export or re-export of the Application, Data or SPARC Platform, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Application, SPARC Platform and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these terms and conditions and will be prohibited except to the extent expressly permitted by these terms and conditions. 3.3 User accounts will be accessed through a user ID and password. Users are solely responsible for maintaining the confidentiality of the ID, and together with Subscriber, are fully responsible for all activities that occur under their ID. User IDs and passwords are unique to each User and cannot be shared with any other User or person. Subscriber or User must immediately notify Hotel Engine of any unauthorized use of a User’s ID. 3.4 Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Application, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Subscriber 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. 3.5 Subscriber and Users shall not: (a) use the Application to engage in any illegal or unauthorized purposes; (b) use the Application to send spam or other unsolicited commercial messages, including e-mails, to any third-party if those messages are not solicited, authorized, or welcomed by the third-party; (c) use the Application to transmit worms, viruses or any code of a destructive nature; (d) access the Application using any high volume automated means (including robots, spiders and scripts); (e) attempt to hack, destabilize or adapt the Application or its source code; (f) use the Application to abuse, harass, threaten, harm or impersonate Users or employees of Hotel Engine or any of its partners; (g) use the Application to collect or harvest any PII; (h) monitor the availability or functionality of the Application for any competitive or benchmarking purposes; (i) post any content that is hateful, threatening, pornographic, obscene, abusive, unlawful, harassing, racially or ethnically offensive, libelous or defamatory, or any content that encourages unlawful conduct; or (j) submit material that is copyrighted, protected by trade secret or otherwise subject to intellectual property rights or third-party proprietary rights, including privacy and publicity rights, unless Subscriber is the owner of such rights or has permission from the rightful owner to post the material and to grant Hotel Engine all of the license rights granted herein. 3.6 Subscriber shall be solely responsible for keeping a duplicate copy of the Subscriber Data. 3.7 Subscriber agrees to Hotel 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. LICENSE GRANT 4.1 Subject to these terms and conditions, Hotel Engine hereby grants Subscriber a revocable, worldwide, non-transferable, non-exclusive, limited right and license to use the Application in accordance with these terms and conditions. Hotel Engine reserves all rights not expressly granted herein in the Application. 4.2 Subscriber hereby grants Hotel 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 Application for Subscriber and Users. Subscriber also grants each User authorized by Subscriber a non-exclusive license to access Data through the SPARC Platform and to use, reproduce, distribute, display and perform such Subscriber Data. 5. TERM AND TERMINATION 5.1 Subject to the termination provisions below, these terms and conditions shall remain in effect until Subscriber no longer has access to the Application. 5.2 Hotel Engine may terminate Subscriber’s access to the Application for cause in the event of a material breach by Subscriber or its Users if such breach is not cured to the satisfaction of Hotel Engine within five (5) days of receipt of written notice of such breach. Further, Hotel Engine reserves the right to terminate the Application and SPARC Platform, in its sole discretion, by providing Subscriber no less than thirty (30) days’ notice. 5.3 Upon termination or expiration of Subscriber’s access to the Application, Hotel Engine shall cease providing the Application hereunder, Subscriber’s access to Data and the SPARC Platform shall cease, and all Data, including Subscriber Data, may be immediately deleted by Hotel Engine. Subscriber shall not be entitled to retain any Data after termination or expiration of access to the Application. 5.4 Regardless of the circumstances of termination or expiration of Subscriber’s access to the Application, or portion thereof, the provisions of Sections 7 (“Indemnification”), 8 (“Limitation of Liability”), 9 (“Confidentiality”), 10 (“Intellectual Property Rights”) and 11 (“Miscellaneous”) shall survive such termination or expiration. 6. WARRANTY; DISCLAIMER 6.1 HOTEL ENGINE MAKES NO REPRESENTATION OR WARRANTY RELATING TO THE APPLICATION, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 6.2 Subscriber represents and warrants that: (i) none of the materials provided to Hotel Engine in connection with the Application and SPARC Platform 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. 6.3 Hotel Engine represents and warrants that: (i) all services pertaining to the Application will be performed in a professional and workmanlike manner; and (ii) it has the right, title, and interest to the Application sufficient to grant the rights granted herein. 7. INDEMNIFICATION 7.1 Hotel 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 Application when used in accordance with these terms and conditions (the "Indemnified Application") 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 Hotel Engine; (ii) gives Hotel Engine sole control of the defense and settlement of the claim; (iii) provides to Hotel Engine all available information, assistance, and authority to defend; and (iv) has not compromised or settled such proceeding without Hotel Engine's prior written consent. 7.2 Hotel Engine shall have no liability for any infringement or claim which results from: (i) the combination, operation or use of the Indemnified Application with any non-Hotel Engine-provided equipment, software, or data if such infringement would not have occurred but for such combination, operation or use; (ii) Hotel Engine's compliance with designs or specifications of Subscriber; or (iii) use of the Indemnified Application in a manner prohibited under these terms and conditions, in a manner for which the Indemnified Application was not designed, or in a manner not in accordance with the accompanying documentation. 7.3 THIS SECTION STATES THE ENTIRE LIABILITY OF HOTEL ENGINE WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES PROVIDED TO SUBSCRIBER. 7.4 Subscriber shall indemnify, defend, and hold harmless Hotel 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 Application; (ii) a User’s use of the Application or SPARC Content; (iii) Subscriber’s or User’s violation of these terms and conditions; or (iv) any infringement or misappropriation of any intellectual property right or other right of any person or entity by Subscriber or any User. 8. LIMITATION OF LIABILITY 8.1 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. 8.2 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 7, FOR A BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY EXCEED THE FEES PAID OR OWED BY SUBSCRIBER TO HOTEL ENGINE IN THE ONE YEAR PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. 9. CONFIDENTIALITY 9.1 “Confidential Information” means any information which is disclosed by a party (the “Discloser”) in connection with access to the Application, 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 Hotel Engine’s software and documentation used in connection with the Application provided hereunder. 9.2 All Confidential Information disclosed by the Discloser hereunder shall not be divulged by Recipient to any third party. 9.3 The restrictions on disclosure set forth in this Section shall not apply to Confidential Information which: (a) becomes publicly known without breach of these terms and conditions; (b) 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; (c) is approved for disclosure without the restriction in a written document which is signed by a duly authorized officer of the Discloser; or (d) is independently developed by the Recipient without reference to the Discloser’s Confidential Information. 9.4 Recipient may use the Discloser’s Confidential Information solely for the purpose of exercising its rights and performing its obligations under these terms and conditions. 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. INTELLECTUAL PROPERTY RIGHTS 10.1 Subscriber recognizes that the Application has substantial monetary value and is considered a trade secret and Confidential Information belonging to Hotel Engine. Without limitation, Hotel Engine shall retain ownership of all rights, title and interest to the Application including all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. 10.2 Subscriber shall not, and shall not allow third parties, to: (a) sublicense or distribute the Application in any manner; (b) create derivative works of the Application; (c) reproduce or copy the Application in any manner; (d) rent, lease, or sell the Application; or (e) use the Application 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 Hotel Engine. 11. 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 will otherwise remain in full force and effect and enforceable. These terms and conditions are not assignable, transferable or sublicensable by Subscriber except with Hotel Engine’s prior written consent. Hotel Engine may transfer and assign any of its rights and obligations under these terms and conditions without consent. These terms and conditions 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 these terms and conditions, 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 Hotel Engine in any respect whatsoever. In any action or proceeding to enforce rights under these terms and conditions, the courts located in the City and County of Denver, Colorado shall be the exclusive jurisdiction for such action. The prevailing party will be entitled to recover costs and attorneys’ fees. 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. These terms and conditions shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. Subscriber agrees to reasonably cooperate with Hotel Engine to serve as a reference account upon request.

Terms and Conditions

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