Terms & Conditions
Terms & Conditions
ROOMDEX TERMS AND CONDITIONS
These terms & conditions were last updated on January 6, 2023
BY COMPLETING AND SUBMITTING AN ONLINE APPLICATION AND SERVICE ORDER THAT INCORPORATES THESE ROOMDEX TERMS AND CONDITIONS (THESE “TERMS”) BY REFERENCE (INCLUDING ANY EXHIBITS, SCHEDULES OR ADDENDA ATTACHED THERETO, THE “APPLICATION”) OR OTHERWISE ACKNOWLEDGING YOUR ACCEPTANCE OF THESE TERMS, FOR EXAMPLE, BY CLICKING THE “I ACCEPT” BUTTON, YOU (AS AN INDIVIDUAL, COMPANY, BUSINESS, CORPORATION OR OTHER ENTITY, “CUSTOMER”) ACCEPT AND AGREE TO THESE TERMS AND ANY OTHER TERMS AND CONDITIONS SET FORTH IN THE APPLICATION, IF APPLICABLE (THE APPLICATION, TOGETHER WITH THESE TERMS, THIS “AGREEMENT”). THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN CUSTOMER AND ROOMDEX, INC., A DELAWARE CORPORATION (“COMPANY”). CUSTOMER’S USE OF THE PRODUCTS AND SERVICES SET FORTH IN THE APPLICATION (THE “SERVICES”) IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW, SO CUSTOMER SHOULD TAKE THE TIME TO FULLY UNDERSTAND HOW THESE TERMS GOVERN CUSTOMER’S RELATIONSHIP WITH COMPANY AND CUSTOMER’S USE OF THE SERVICES. CUSTOMER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, BUSINESS, CORPORATION OR OTHER ENTITY, YOU AND THE APPLICABLE COMPANY, BUSINESS, CORPORATION OR OTHER ENTITY EACH REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”, “YOUR” AND “CUSTOMER” WILL REFER TO SUCH ENTITY. IF CUSTOMER DOES NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE.
- Company Services.
- Access to Platform. Company agrees to provide the Services to Customer in accordance with this Agreement. Certain Services may include Company’s proprietary software-as-a-service offering, made available via the Internet, in object code format only (the “Platform”). If applicable, and subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Term (as defined below), to access and use the Platform during the Term solely for Customer’s internal use. Company may provide Customer with username(s) and password(s) pursuant to which Customer may access the Services. Customer will be responsible for any actions taken by parties with access to such usernames and passwords, and Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer). Customer will inform Company immediately if it discovers that any such username and/or password has been disclosed or made available to a third party.
- Customer will not distribute the Platform, the Services or any other software or documentation provided by Company to Customer hereunder, including any copy thereof (the “Company IP”), by transfer, assignment, lease, loan or any other means, or make it available for use by any third parties (other than employees or consultants of Customer) in any manner, including without limitation by any time-sharing, service bureau or similar arrangement. Customer will not copy, alter, modify, translate, adapt or create derivative works of the Company IP. Customer will not reverse engineer, decompile, disassemble, translate, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Company IP. Customer will not remove, obliterate, obscure, or conceal the proprietary notices or legends that appear on any Company IP. Customer will not use hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Company IP or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing. Customer has no right to obtain or have access to the source code or systems and programming documentation of any Company IP or any part thereof, and all information related thereto shall be subject to Customer’s obligations of confidentiality set forth herein.
- Professional Services. The Services may include professional services, as set forth in the Application (the “Professional Services”). Company will perform any Professional Services set forth in the Application, in accordance with the terms and conditions set forth in this Agreement. Such Professional Services may include, but are not limited to, installation, integration and/or configuration services. Customer understands that Company’s performance of the Professional Services is dependent in part on Customer’s actions. Accordingly, Customer will use commercially reasonable efforts to provide Company with the necessary items and assistance specified in the Application in a timely manner. Any dates or time periods relevant to performance by Company hereunder shall be appropriately and equitably extended to account for any delays or change in assumptions due to Customer.
- Fees. As payment for the Services, Customer will pay to Company the fees and expenses as described in the Order and any related Application (collectively, the “Fees”). Fees described in the Application will be payable as described in the applicable Order. Fees described in an Order as Flat Fees, Flat Subscription Fees and the like (collectively, “Flat Fees”) will not be payable during the Free Trial Period (defined below), but all other Fees, including Fees based on a commission structure (collectively, “Commission Fees”), shall be payable at all times during the term of the Agreement. Notwithstanding anything set forth in any Order, Flat fees are due in advance monthly or annually, and all other Fees are due and payable at the end of each billing period within 15 days from invoice date. Commission Fees are calculated over the booked upsell revenue as registered in ROOMDEX and sold via ROOMDEX, minus upsell revenue from those reservations that no-show or cancel in advance of their stay. For clarity any manual corrections made by Customer for its staying guests remain commissionable as originally booked. Customers may switch from Flat Fees to Commission Fees and vice versa at the end of each billing period, for a maximum of 1 time within a 12-month period. Commission Fees are calculated monthly. Unless otherwise set forth in the Application, payment will be made by credit card or other ACH/wire transaction. There will be a $50 charge per-check for any payment made by check. By providing credit card or ACH/wire information to Company, Customer authorizes Company to debit the credit card or account indicated for Fees. Customer understands that this authorization will remain in effect until the termination of the Agreement and the final payment of all Fees due and payable hereunder. Customer agrees to notify Company in writing of any changes in account information at least 15 days prior to the next billing date. Unless otherwise set forth in the Application, all monthly and annual Fees are due and payable in advance and are not cancelable or refundable. The commencement date for calculating all Fees under the Agreement will be the expiration date of the Free Trial Period. If payment of Fees is not made through the payment method agreed upon in the Application, Company may, at its discretion, change the billing frequency to quarterly or annual in advance; after providing written notice of the Company’s intent to do so and allowing the Customer 7 days to comply with payment method agreed upon in Application. If payment of any Fees (including any reimbursement of expenses) is not made when due and payable, a late fee shall accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law. If any Fees remain unpaid for more than fifteen (15) business days after the due date thereof, Company may suspend provision of all or part of the Services until such unpaid amounts are paid in full. All Fees are stated in U.S. Dollars unless otherwise designated. Upon at least forty-five (45) days’ prior written notice to Customer, Company may change the Fees stated on the Application for any Renewal Term (as defined below).
- Taxes. Except as otherwise set forth in any invoice, all Fees payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”). Customer shall be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due Company.
- Term; Termination. Unless earlier terminated as set forth herein, the initial term of this Agreement shall commence on the Effective Date (as defined in the Application) and shall continue for the period set forth in the Application (the “Initial Term”). Notwithstanding the foregoing, this Agreement may be terminated immediately by Customer at any time during the first thirty (30) days of the Initial Term or such longer period specifically set forth in the Application (“Free Trial Period”) by providing written notice of such termination to Company. Thereafter, unless otherwise stated in the Application, this Agreement will automatically renew for a period equal to such initial term (each such period, a “Renewal Term”, and together with the Initial Term, the “Term”) unless terminated prior to expiration of such initial term or the then-current Renewal Term as set forth below. For purposes of clarity, if the Term selected in the Application is monthly, you may cancel at any time after the expiration of the Free Trial Period, but your payment for the month in which you cancelled will not be prorated or refunded. If the Term selected in the Application is annual, you may not cancel during such annual term. If you wish to cancel prior to the automatic renewal of the next annual term, you must provide Company with at least thirty (30) days written notice prior to the expiration of the current annual Term. Each party hereto shall have the right to terminate this Agreement as a result of a material breach by the other party after giving thirty (30) days prior written notice specifying the breach to the party in default and provided that the party in default has not cured its default prior to the end of such thirty (30) day period. Upon any termination or expiration of this Agreement for any reason, Customer may request an export of the Customer Data (as defined below) in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration; provided, that, such Customer Data shall remain subject to the terms and conditions contained herein (including the restrictions with respect to its use and disclosure). Customer agrees to indemnify, defend and hold Company harmless from and against any and all third party claims, loss, damages, liabilities and costs of any nature whatsoever (including reasonable attorney’s fees and court costs) arising from or related to Company’s actions pursuant to any transfer of Customer Data as contemplated in this Section, except to the extent that such damages arise from or are related to Company’s negligence or willful misconduct. Thereafter, Company may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data stored or otherwise archived on the Platform or on Company’s network; provided, that, if this Agreement is terminated by Company due to Customer’s material breach as set forth herein, Customer will promptly pay to Company any outstanding Fees due to Company with respect to use of the Services for the remainder of the then-current term. Upon any termination or expiration of this Agreement, all rights granted hereunder and all obligations of Company to provide the Platform shall immediately terminate and Customer shall cease use of the Platform. Within thirty (30) days of the termination or expiration of this Agreement, each party will return to the other party all Confidential Information (as defined below) of the other party in its possession at the time of expiration or termination and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. Sections 2, 3, 4, 5, and 7 through 17 (inclusive) of this Agreement will survive the expiration or termination of this Agreement.
- Equipment or Software Not Provided by Company. Unless otherwise set forth in the Application, Customer is responsible for any items (including without limitation, hardware, software, bandwidth and connectivity) (“Equipment”) used in connection with the Services but not provided by Company, including installation, operation, and maintenance of such Equipment at Customer’s own expense. If any Equipment impairs the Services’ quality or availability, Customer will promptly cure the problem. Customer will continue to pay Company for the Services during any impairment caused by the Equipment. If the impairment interferes with the use of the Company-provided network by Company or third parties, Company, in its reasonable discretion, may suspend or disconnect the affected Services without advance notice to Customer, although Company will use commercially reasonable efforts to provide advance notice where practical. At Customer’s request, Company will troubleshoot any impairment caused by the Equipment at Company’s then-current time and materials rates. Company is not liable if a commercially reasonable change in the Services causes Equipment to become obsolete, require alteration, or perform at lower levels. All Equipment is subject to the terms and conditions established by the third-party licensor of such Equipment, and Customer acknowledges that Company makes no representations or warranties with respect to the Equipment and is not liable for any issues arising from such Equipment.
- Company shall use reasonable efforts consistent with prevailing industry standards to provide the Platform in a manner that minimizes errors and interruptions in accessing the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Company’s control. Customer represents and warrants that it has download speeds of at least 20 Megabytes per second.
- Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties
- Customer Representations and Warranties. Customer represents, warrants and covenants that (a) it has the legal authority and all rights necessary to provide the Customer Data and any other content, images, data or information that it provides to Company hereunder (the “Customer Content”), (b) the Customer Data and Customer Content is true, accurate and complete, (c) Customer’s provision of the Customer Data or Customer Content to Company hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.
- Confidentiality And Data Protection.
- Confidential Information. “Confidential Information” shall mean, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Company’s Confidential Information includes, without limitation, the Platform and Company IP. Customer’s Confidential Information includes, without limitation, the Customer Data. The Receiving Party shall (a) maintain the Disclosing Party’s Confidential Information in confidence, (b) use at least the same degree of care to maintain the secrecy of the Disclosing Party’s Confidential Information as it uses in maintaining the secrecy of its own similar confidential information (but no less than reasonable care), and (c) use the Disclosing Party’s Confidential Information only for the purpose of performing its obligations and/or exercising its rights under this Agreement. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (A) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (B) as required by law (in which case each party shall provide the other with prior written notification thereof, shall provide such party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Notwithstanding the foregoing, the Receiving Party shall not have any obligation with respect to any portion of the Disclosing Party’s Confidential Information that: (i) was known to the Receiving Party prior to receipt from the Disclosing Party; (ii) is lawfully obtained by the Receiving Party from a third party under no obligation of confidentiality; (iii) is independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party; or (iv) is or becomes publicly available other than as a result of any act or failure to act of the Receiving Party. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
- Data Protection. If the General Data Protection Regulation (EU) 2016/679 (“GDPR”) applies to the Processing of Customer Personal Data (as defined below), the parties acknowledge and agree that Customer is the Controller of Customer Personal Data and the Company is the Processor of that data. The Company will: (i) only Process Customer Personal Data on behalf of and in accordance with the Customer’s written instructions and for no other purpose. The Company is hereby instructed to Process Customer Personal Data, for the Term, to the extent necessary to enable the Company to provide the Services (which the parties acknowledges as constituting the subject matter of the Processing), as documented in the form of this Agreement and as further documented in any other written instructions given by Customer and acknowledged by the Company as constituting instructions for purposes of this Agreement; (ii) promptly notify the Customer if for any reason (including a change in applicable law) the Company becomes unable to comply with any Customer’s instructions, in which case the Company will (a) provide a reasonable level of detail as to the instructions with which it cannot comply and the reasons why it cannot comply, to the greatest extent permitted by applicable law, and (b) cease all Processing of the affected Customer Personal Data (other than merely storing and maintaining the security of the affected Customer Data) until such time as the Customer issues new instructions with which the Company is able to comply (If this provision applies, the Company will not be liable to Customer under the Agreement in respect of any failure to perform the Services due to its inability to process Customer Personal Data until such time as the Customer issues new instructions in regard to such Processing); (iii) ensure that any person whom Company authorizes to Process Customer Personal Data on its behalf is subject to confidentiality obligations in respect of that Customer Personal Data; (iv) implement appropriate technical and organizational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data; (v) notify the Customer as soon as practicable after it becomes aware of any Personal Data Breach affecting any Customer Personal Data (provided that Customer shall be solely responsible for complying with any obligations to notify competent authorities or Data Subjects of the Personal Data Breach, where required); (vi) at the Customer’s request and subject to the Customer paying all of the Company’s fees at prevailing rates, and all expenses, and taking into account the nature of the Processing and the information available to the Company, promptly provide the Customer with all reasonable assistance necessary (A) to enable the Customer to notify any Personal Data Breaches affecting Customer Personal Data to the relevant Data Protection Authorities and/or affected Data Subjects, (B) for the fulfilment of the Customer’s obligation to respond to requests for the exercise of Data Subjects’ rights (provided that Customer shall be solely responsible for responding to such requests), (C) for the fulfilment of Customer’s obligation to keep Customer Personal Data secure, (D) to facilitate the conduct of data protection impact assessments and consultation with Data Protection Authorities for Customer Personal Data, in each case to the extent that the Customer is required to engage in such activities; (vii) only transfer Customer Personal Data in accordance with Customer’s instructions and, if requested to do so by Customer, ensure that the Company, as the data importer, enters into standard contractual clauses with Customer (as the data exporter), unless another transfer mechanism is used (such as the Privacy Shield); (viii) provide the Customer with all information necessary to enable the Customer to demonstrate compliance with its obligations under the GDPR, and allow for and contribute to audits, including inspections, conducted by the Customer or an auditor mandated by the Customer (to the extent that such information is within the Company’s control and the Company is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party) and immediately inform the Customer if, in the Company’s opinion, an instruction infringes the GDPR or other European Union or Member State data protection provisions. Customer authorizes the Company to engage sub-Processors to perform specific services on the Company behalf which may require such sub-Processors to Process Customer Personal Data, provided that the Company shall enter into an agreement with the sub-Processor that imposes on the sub-Processor the same obligations that apply to the Company hereunder. The Company will inform the Customer of any intended changes concerning the addition or replacement of sub-Processors, to the greatest extent permitted by applicable law, and Customer will have an opportunity to object to such changes on reasonable grounds within fifteen (15) business days after being notified. If the parties are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party. On termination or expiration of the Agreement, Customer instructs the Company to permanently and securely delete all Customer Personal Data in the possession or control of the Company or any of its sub-Processors, within a reasonable period of time (unless otherwise required by European Union or Member State law), except if the Customer requests an export of Customer Personal Data in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration. The Customer acknowledges that the Company is reliant on the Customer for direction as to the extent to which the Company is entitled to Process Customer Personal Data on behalf of Customer in performance of the Services. Consequently the Company will not be liable under the Agreement for any claim brought by a Data Subject arising from any action or omission by the Company, to the extent that such action or omission resulted directly from the Customer’s instructions or from Customer’s failure to comply with its obligations under the applicable data protection law. For purposes of this provision, (A) “Controller,” “Data Subjects,” “Personal Data,” “Personal Data Breach,” “Processing,” “Processor” will each have the meaning set out by the GDPR, (B) “Customer Personal Data” means the Personal Data relating to hotel guests contained within Customer Data, the extent of which is determined and controlled by Customer in its sole discretion. Concerning the Processing of Customer Personal Data that is subject to the GDPR, in the event of any conflict or inconsistency between the terms of the GDPR and any other terms of this Agreement, the provisions of the GDPR shall prevail.
- Anti-Virus / Anti-malware. Before entering its data and information, the Customer shall be obliged to install, maintain and update commercial, state of the art anti-virus, anti-malware and alike check the same for viruses, malware, worms, trojan horses or other harmful components on any computer accessing the Platform.
- Intellectual Property.
- Customer Data. Customer or its licensors own the data input or uploaded by Customer into the Platform, including, without limitation, any data regarding hotel guests, prices and reservations (“Customer Data”). Customer hereby grants Company the non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to (i) copy, use, modify, distribute and display Customer Data solely to the extent necessary for to perform the Services, including to provide the Platform to Customer, (ii) copy, modify and use Customer Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, archival purposes and improving Company’s products and services, and (iii) copy, use, modify, distribute and display Customer Data on an aggregate and/or anonymized basis, solely to the extent that such data does not include information that identifies or would reasonably be expected to identify Customer or any of Customer’s guests.
- Customer Content. Customer may provide Company with Customer Content to facilitate performance of the Services, including Professional Services that may include branding the Platform or e-mails sent on behalf of Customer using the Customer’s trademarks or service marks (the “Marks”). Customer hereby grants Company a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to copy, display, distribute and use the Customer Content and Marks to perform the Services hereunder.
- Reservation of Rights. Customer acknowledges and agrees that, as between the parties, Company retains all rights title, and interest in and to the Platform, the Services, Company IP, and all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Company grants no, and reserves any and all, rights with respect thereto other than the rights expressly granted to Customer under this Agreement. Company acknowledges and agrees that, as between the parties, Customer retains all rights title, and interest in and to the Customer Data, Customer Content and Marks, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Customer grants no, and reserves any and all, rights with respect thereto other than the rights expressly granted to Company under this Agreement.
- Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Platform or other Company IP. Company shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Company a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
- Indemnification by Company. Company shall defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Platform infringes any intellectual property right of a third party. Further, Company shall indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Company’s indemnification obligation will not apply to claims to the extent arising from (i) modification of the Platform by any party other than Company without Company’s express consent; (ii) the combination, operation, or use of the Platform with other product(s), data or services where the Platform would not by itself be infringing; or (iii) unauthorized or improper use of the Platform. If the use of the Platform by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (A) procure for Customer the right to continue using the Platform as set forth hereunder, (ii) replace or modify the Platform to make it non-infringing so long as the Platform has at least equivalent functionality, (iii) substitute an equivalent for the Platform or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement. This Section states Company’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
- Indemnification by Customer. Customer shall defend Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) against any Claims arising from (a) any use or disclosure by Customer of the Platform in violation of this Agreement or (b) the Customer Data or Customer Content. Further, Customer shall indemnify the Company Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
- Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under this Agreement involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND COMPANY IP ARE PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES. COMPANY DOES NOT WARRANT THAT THE PLATFORM OR ANY OTHER COMPANY IP IS ERROR-FREE OR THAT OPERATION OF THE PLATFORM OR ANY OTHER COMPANY IP WILL BE UNINTERRUPTED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
- Limitation of Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL COMPANY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
- Press Releases and Publicity. Either party may issue a press release, subject to the other party’s prior written approval, announcing the existence of this Agreement and such approval shall not be unreasonably withheld. Neither party shall publicly disclose the specific terms of this Agreement without the other party’s prior written approval, such approval to be at the sole discretion of the other party. Except as set forth in this Agreement, neither party shall use any trade name, trademark, service mark, or any other information which identifies the other party in the party’s sales, marketing, or publicity activities.
- Export Control. Customer may not remove or export from the United States or allow the export or re-export of the Platform, Company IP 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.
- Entire Agreement. This Agreement, together with the Application and any other agreements or policies referenced or incorporated herein or therein, represents the entire understanding between the parties hereto with respect to the matters contained herein and, except as otherwise provided in the Agreement, it may be amended only by an instrument in writing signed by both parties hereto. In the event of any conflict between these Terms and the Application, the terms and conditions of these Terms shall govern unless the Application expressly amends these Terms.
- No Partnership or Agency. Nothing in this Agreement shall be deemed to constitute a partnership, association or joint venture between the parties hereto, nor shall Customer be deemed to constitute an agent of Company for any purpose whatsoever.
- No Waiver. The failure of either party hereto to exercise in any respect or on any occasion any right provided for by this Agreement shall not constitute or be deemed to constitute a waiver of any other right provided for by this Agreement or otherwise.
- Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section shall be null and void.
- Governing Law. This Agreement shall be construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any action, proceeding or litigation relating to or arising from this Agreement shall be brought in the district courts of Maryland.
- Whenever this Agreement requires or permits any notice, requests, or demand from one party to another, the notice, request, or demand must be in writing to be effective and shall be deemed to be delivered and received (a) if personally delivered or if delivered by facsimile, email or courier service, when actually received by the party to whom notice is sent, or (b) if delivered by mail (whether actually received or not), at the close of business on the third business day next following the day when placed in the mail, postage prepaid, certified or registered, addressed to the appropriate party, at the address of such party set forth on the Application (or such other address as such party may designate by written notice to all other parties in accordance herewith), or (iii) if delivered by next day courier who is a nationally recognized carrier, on the date delivered (according to the records of the carrier).
- Force Majeure. Each party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party shall give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
- Attorneys’ Fees. If legal action is commenced by either party to enforce or defend its rights under this Agreement, the prevailing party in such action shall be entitled to recover its costs and reasonable attorneys’ fees in addition to any other relief granted.
- Parties In Interest; No Third-Party Beneficiaries. Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and permitted assigns of the parties to this Agreement. Neither this Agreement nor any other agreement contemplated in this Agreement shall be deemed to confer upon any person not a party to this Agreement any rights or remedies contained in this Agreement.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.