SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement (the "INNkeeper Service
Agreement"), effective as of 05/31/2023 (the "Effective
Date"), is by and between INNsight, a Delaware Corporation,
with offices located at 2445 Ocean Avenue, San Francisco, CA 94127
("Provider") and, a with property located at
("Customer") (each a "Party" and
collectively known as the "Parties" who have entered into
this Agreement).
WHEREAS, Provider provides access to its
software-as-a-service offerings to its customers;
WHEREAS, Customer desires to access certain
software-as-a-service offerings described herein, and Provider desires to
provide Customer access to such offerings, subject to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
terms, and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following
definitions apply throughout this Agreement, unless a contrary definition
appears elsewhere in this Agreement:
“Provider” means INNsight, which can be reached at help@innsight.com or any other
address as set out in this Agreement.
“Customer” means INNkeeper, which can be reached at any such
or other address as set out in this Agreement.
"Customer Service"
means the customer service desk of INNsight, which can be reached at help@innsight.com or any other
address as set out in this Agreement.
"Effective Date" means
the date this Agreement is signed by the INNkeeper.
"Extranet" means the
online Digital Marketing System (DMS) which can be accessed by the INNkeeper
upon user-authentication at my.INNsight.com to manage inventory, (rates),
upload images, update property information, and access and/or modify
reservations.
"Guest" means a person
who has booked accommodations at the INN through the Website.
"INN" means a place to
stay, including, but not limited to the following lodging accommodations
and/or dining facilities: motels, hotels, lodges, inns, bed and breakfasts,
RV Parks, cabins, apartments, houses, or vacation rental properties and
restaurants, bars, taverns, tap rooms, or wineries.
"INNkeeper" means the
INN’s owner, whether an individual or a business entity, on-site manager, or
agent responsible for the day-to-day operations of the INN.
"Intellectual Property
Right" means any patent, copyright, invention, database rights,
design right, registered design, trademark, trade name, brand, logo, service
mark, know-how, utility model, unregistered design, or, where relevant, any
application for any such right, know-how, trade or business name, domain
name or other similar right or obligation whether registered or unregistered
or other industrial or intellectual property right subsisting in any
territory or jurisdiction in the world.
"Marketing Engagement"
means the product and services offered by INNsight to the INNkeeper solely
for the Internet and social media marketing, design, and hosting of their
website and not including INNsight’s Reservation Service.
"Reservation Service"
means the online reservation system of INNsight through which INNkeepers can
make their rooms available for reservation, and through which Guests can
book reservations at an INN for overnight accommodations with such service
provided on both INNsight and Standalone Websites Powered by
INNsight.
"Standalone Website (Powered
by INNsight)" means an INN’s website which is hosted
and managed by INNsight’s online Content and Digital Marketing System and
may be supported by the INNsight Reservation Service or INNsight ADA
Tray® Widget or INNsight Dedicated Email Hosting.
"Third Party (Transaction)
Site" refers to a third-party website (i.e. Franchise, Online
Travel Agent (OTA), Central Reservation System (CRS), or another
booking-enabled website) where INNkeepers can make their rooms available for
reservation, and through which Guests can book reservations at INN for
overnight accommodations.
"Website" means
INNsight.
"Websites" means the
website(s) of INNsight and its affiliated companies and business partners on
which the product and service of INNsight are available including any
Standalone Website that is Powered by INNsight.
"Software Product"
means any Software or Software that is provided by INNsight to the INNkeeper
or utilized in connection with its Software-as-a-Service offerings to its
customers.
2. INNKEEPER OBLIGATIONS
2.1 INN Information
2.1.1 INNkeeper represents and warrants with respect to all images provided
by INNkeeper to INNsight, that INNkeeper has either:
(i) Produced the photograph(s) and has full ownership of the images;
(ii) Purchased the image(s) and has proof of purchase;
(iii) Licensed the image(s) and has full authorization of use and proof of
license;
(iv) Obtained signed written permission from the owner of the photograph(s)
to use the image(s) for commercial purposes, including third-party usage;
and
(v) If models were used in the photograph(s), INNkeeper has acquired a
signed and dated copy of the ‘Model’s Release’ for the photographs.
2.1.2 Information provided by the INNkeeper for inclusion on the Websites
shall include information relating to the INN (including pictures and
descriptions), its amenities and services, the rooms available for
reservation, details of the rates (including all applicable taxes, levies,
surcharges, and fees) and availability, cancellation and no-show policies
and other policies and restrictions (the "INN Information") and shall comply
with formats and standards provided by INNsight. INNsight reserves the right
to edit or exclude any information on becoming aware that it is incorrect or
incomplete or in violation of the terms and conditions of this Agreement.
2.1.3 The INNkeeper represents and covenants that the INN Information shall
at all times be true, accurate, and not misleading. The INNkeeper is at all
times responsible for maintaining correct INN Information, and notifying
INNsight of any extraordinary, materially adverse events (e.g. renovation or
construction at or near the facility) which may affect the INN’s ability to
honor a reservation.
2.1.4 The information provided by the INNkeeper for the Websites shall remain
the exclusive property of the INN. Information provided by the INNkeeper may
be edited or modified by INNsight and subsequently be translated into other
languages. The translations shall remain the exclusive property of INNsight.
The edited and translated content shall be for the exclusive use by INNsight
on the Websites and shall not be used by the INNkeeper for use on any other
website or distribution channel.
2.1.5 Unless INNsight agrees otherwise, all changes, updates, and/or
amendments of the INN Information (including rates, availability, and rooms)
shall be made by the INNkeeper directly and online through the Extranet or
such other ways as INNsight may reasonably indicate. Updates to pictures and
descriptions shall be processed by INNsight as soon as practicable.
2.1.6 When INNkeeper gives INNsight content, INNkeeper grants INNsight a
non-exclusive, worldwide, perpetual, irrevocable, royalty-free,
sub-licensable (through multiple tiers) right to exercise any and all
copyright, trademark, publicity, and database rights (but no other rights)
INNkeeper has in the content, in any media known now or in the future, not
limited to establishing social media or other Internet application accounts
on behalf of the INNkeeper.
2.2 Guest Reservations and Complaints
2.2.1 The INN shall receive a fax and/or email confirmation for every booking
made by a Guest via their selected third-party booking engine in accordance
with the rules defined by INNkeeper and third-party. INNsight is not
responsible for the accuracy and completeness of Guest information,
including, but not limited to, credit card details. INNsight is not
responsible to the INN for payment of charges associated with a reservation
in the event the credit card provided by the Guest declines.
2.2.2 By making a reservation through the Website, a direct contract, and
therefore a legal relationship, is created solely between the INN and the
Guest with respect to the reservation.
2.2.3 The INN is bound to accept a Guest as a contractual party, and to
process the online reservation in compliance with the INN Information
contained on the Website at the time the reservation was made, including any
supplementary information and/or wishes made known by the Guest.
2.2.4 Complaints and legal claims regarding the products or services offered,
rendered, or provided by the INN or specific requests made by Guests are the
sole responsibility of the INN. INNsight shall not be responsible for
mediating such complaints and/or legal claims. INNsight is not responsible
for and disclaims any liability with respect to such claims from a Guest.
INNsight may at its sole discretion offer customer support services to a
Guest or act as an intermediary between an INN and a Guest or otherwise
assist a Guest in its communication with or actions against the INN.
2.3 Securitization of Credit Card Data for Reservation
Service
Each INN is required to comply with and to have its sub-servicers comply
with, on an ongoing basis, the requirements, compliance criteria, and
validation processes as set forth in the Payment Card Industry
("PCI") Data Security Standard as promulgated from time to
time by the major credit card companies.
2.4 Extranet: INNsight Digital Marketing System “DMS” & Property
Management System "PMS" & Reputation Management System “RMS” &
ADA Tray® Management System “ATMS” & Dedicated Email
Hosting (DEH)
INNsight will provide the INNkeeper, in accordance with subscription(s)
executed with, a user ID and password that allows the INNkeeper to access
the INNsight DMS/PMS/RMS/ATMS/DEH. The INNkeeper shall safeguard and keep
the user ID and password confidential and safely stored and not disclose it
to any person other than those who need to have access to the Extranet. The
INNkeeper shall immediately notify INNsight of any (suspected) security
breach or improper use. INNsight will not be responsible for any content
generated by INNkeeper, its employees, or third parties engaged by
INNkeeper. INNsight is not responsible and disclaims all liability for any
data privacy liability due to disclosure of Customer Data including Customer
private data, credit card information, or other identifying information
associated therewith.
2.4.1 INNkeeper Control and Responsibility. The INNkeeper has and will retain
sole responsibility for (a) all Customer Data, including its content (as
defined in Section 3.2.1) and use; (b) all information, instructions, and
materials provided by or on behalf of Customer or any Authorized User in
connection with the Services; (c) Customer's information technology
infrastructure, including computers, software, databases, electronic systems
(including database management systems), and networks, whether operated
directly by Customer or through the use of third-party services ("Customer
Systems"); (d) the security and use of Customer's and its Authorized Users'
Access Credentials; and (e) all access to and use of the Services and
Provider Materials directly or indirectly by or through the Customer Systems
or its or its Authorized Users' Access Credentials, with or without
Customer's knowledge or consent, including all results obtained from, and
all conclusions, decisions, and actions based on, such access or use.
2.4.2 Access and Security. INNkeeper shall employ all physical,
administrative, and technical controls, screening, and security procedures,
and other safeguards necessary to: (a) securely administer the distribution
and use of all Access Credentials and protect against any unauthorized
access to or use of the Services; and (b) control the content and use of
Customer Data, including the uploading or other provision of Customer Data
for Processing by the Services.
2.5 Subscription Payment & Remittance for Subscriptions
Service
2.5.1 INNsight shall invoice the INN for the applicable subscription fee at
the end of the calendar month of service on the fifth (5th) day of the
following month.
2.5.2 Invoices shall be processed as follows:
(i) INNsight shall process invoices monthly and shall send a Subscription Fee
statement to the INNkeeper via mail, fax, or e-mail.
(ii) The INNkeeper shall pay the monthly invoiced fees to INNsight within
fifteen (15) calendar days from the invoice date.
(iii) Payments shall be made by the INNkeeper directly to INNsight by credit
card, check, or ACH (Automated Clearing House) to INNsight, Inc.
(iv) The INNkeeper shall bear all costs charged by its banking institution
for the transfer of funds to INNsight.
2.5.3 In the event INNkeeper is late with a Subscription payment, INNsight
reserves the right to (1) claim interest at the rate of a twelve percent
(12%) monthly finance charge subject to the unpaid amount post 30 days
within terms, (2) suspend its service under the Agreement, (3) ask for a
bank guarantee or other form of financial security from the INNkeeper to
restore its Website and/or subscribed services.
2.5.4 In the event INNkeeper delivers a check that bounces or conducts a
chargeback on a valid credit card payment, INNsight reserves the right to
retrieve any bank processing fees, including chargeback fees, in addition to
the nominal Subscription payment due.
3. INNsight RIGHTS AND OBLIGATIONS
3.1 INN Information License
3.1.1 The INNkeeper hereby grants INNsight a non-exclusive, royalty-free, and
worldwide right and license (or sublicense as applicable) to:
((i) Use, reproduce, have reproduced, distribute, sublicense, communicate,
and make available in any method and display those agreed upon elements of
the Intellectual Property Rights of the INN as provided to INNsight by the
INNkeeper pursuant to this Agreement and which are necessary for INNsight to
exercise its rights and perform its obligations under this Agreement;
(ii) Use, reproduce, have reproduced, distribute, sublicense, display, and
utilize (including without limitation to publicly perform, modify, adapt,
communicate, reproduce, copy, and make available to the public in any manner
whatsoever) the INN Information.
(iii) INNsight may sublicense, make available, disclose, and offer the INN
Information, including the relevant Intellectual Property Rights of the INN,
special offers made available by the INN on the Website, and all such
further rights and licenses set out in this Agreement via or in
collaboration with the websites of affiliated companies and/or third parties
(the "Third Party Websites").
3.2 Customer Data and “INNsights” Guest Reviews
3.2.1 INNsight may transmit or make available the reservation made by a Guest
to the INN. Each reservation will contain reservation details such as the
date of arrival, the number of nights, the room type, including smoking
preference if applicable, the room rate, the Guest's name, address, and
credit card details (collectively "Customer Data") and such
other specific request(s) made by the Guest.
3.2.2 Guests who have stayed at the INN may be asked by INNsight to comment
on their stay at the INN and to provide a score for certain categories as
determined by INNsight. Guest reviews (“INNsights”) will be posted on the
Website.
3.2.3 INNsight reserves the right to post INNsights on the Website. The INN
acknowledges that INNsight is a distributor, without any obligation to
verify, the INNsights. Guests, and not INNsight, are publishers of
INNsights.
3.2.4 INNsight undertakes to use its best efforts to monitor and review
INNsights for obscenities or the mention of an individual’s name. INNsight
reserves the right to edit or remove INNsights if such INNsights include
obscenities or mention an individual’s name. INNsight must approve an
INNsight in order to get published.
3.2.5 INNsight will not enter into any discussion, negotiation, or
correspondence with the INN with respect to the content of, or consequences
of the publication or distribution of INNsights.
3.2.6 INNsight shall not have and disclaims any liability and responsibility
for the content and consequences of the publication or distribution of any
comments or reviews whatsoever.
3.2.7 INNsight is the rightful owner of any and all Customer Data and makes
such data available at will to the INNkeeper.
3.3 Internet Marketing and Pay-Per-Click (PPC) Advertising
3.3.1 INNsight is entitled to promote the INN using the INN’s name(s) in
online marketing, including email marketing and/or pay-per-click (PPC)
advertising. INNsight may run online marketing campaigns at its own cost and
discretion.
(i) An INNkeeper may elect to provide additional advertising spend dollars
per month at their own desire which will be communicated to and managed by
INNsight.
(ii) Any additional advertising spend budget and its payment will be the
responsibility of the INNkeeper.
3.3.2 The INNkeeper is aware of the working methods of search engines, such
as spidering of content and ranking of URLs. INNsight agrees that if the INN
becomes aware of behavior by Third Party Websites that breaches the INN’s
Intellectual Property Rights, then the INN will notify INNsight in writing
with details of the conduct and INNsight will use its commercially
reasonable endeavors to ensure that the relevant third party takes steps to
remedy the breach.
3.3.3 The INNkeeper is aware that the order in which the INN is listed on
meta search engine results is based on a variety of factors that are
unbeknownst or controlled by INNsight. While INNsight makes every effort to
drive direct traffic, it does not guarantee page placement on search engine
natural search results or promise a high volume of traffic to a Standalone
Website.
3.3.4 The INN agrees not to specifically target the INNsight brand directly
through keyword purchases that use INNsight Intellectual Property Rights.
4. WEBSITE DESIGN/HOSTING
4.1 The Parties agree that by signing up for the Lite, Basic, or Premium
Marketing Engagement Package, INNsight shall design and host a website
(“Hotel Website Powered by INNsight”) for the INN.
4.2 INNkeeper understands that INNsight will custom design the Standalone
Website in a responsive HTML framework utilizing client feedback and the
latest design standards; however, some elements of the custom design HTML
may be shared across multiple customers of INNsight.
4.3 INNkeeper acknowledges that services may be temporarily unavailable for
scheduled maintenance or due to other causes beyond INNsight’s reasonable
control, but INNsight shall use reasonable efforts consistent with industry
standards to provide advance notice of any scheduled service disruptions and
attempt to maintain the highest levels of server uptime possible.
4.4 INNsight will inform INNkeeper via email alert of any site outage within
24 hours of such outage.
5. MARKETING ENGAGEMENT, ADA Tray®, KEEN®
REPUTATION MANAGEMENT SERVICE, AND DEDICATED EMAIL HOSTING
PACKAGES
5.1 INNsight offers three (3) Marketing Engagement packages to host and
manage an INN’s digital marketing, as more fully described on INNsight’s
website at
http://www.innsight.com/hotel-digital-marketing-system-subscription-fees
(i) As part of this Marketing Engagement, INNkeeper may elect to process
guest reservation transactions via a Third Party Transaction Site or the
INNsight Booking Engine.
(ii) INNkeeper acknowledges having reviewed this webpage and fully
understands the differences between the various packages.
(iii) INNkeeper acknowledges that specific services may change from time to
time and that if the services change, INNsight will provide notification to
INNkeeper of such changes to services provided under the various packages.
5.2 INNsight offers the ADA Tray® Powered by
INNsight for additional website accessibility features,
as more fully described on INNsight’s website at
http://innsight.com/ada-accessiblity-statement
(i) INNkeeper acknowledges having reviewed this webpage and fully understands
the additional website accessibility features that ADA Tray®
offers.
(ii) INNkeeper acknowledges that the ADA Tray® is automatically
included and enabled on their standalone website Powered by INNsight
when subscribed to any Marketing Engagement package and is offered A La Cart
or separately for $19.99/month to non-subscribers.
(iii) INNkeeper agrees to allow INNsight to use cookies to collect website
visitor usage data of the ADA Tray®.
(iv) ADA Tray® increases INNkeeper website conformity to ADA,
Section 508, and WCAG 2.1 Level AA Standards and other website accessibility
standards.
(v) ADA Tray® includes features that make your website more
perceivable, operable, understandable, and robust for individuals with
visual, audio, and mobility impairment and includes an on-screen reader
built in that will translate web content to audio output.
(vi) ADA Tray® includes a widget that offers keyboard-accessible
toggle functionality.
(vii) INNkeeper acknowledges that termination of the ADA Tray® may
result if payment is not received by INNsight or termination of ADA
Tray® may result due to causes including abuse of its systems and
upon termination, the widget can be disabled and will no longer function as
INNsight controls a 'kill switch' to this service.
(viii) INNsight provides no guarantee of uptime or other timing issues
associated with the ADA Tray® and INNkeeper software, website, or
hardware.
(ix) INNkeeper can cancel the ADA Tray® at any time.
(x) INNkeeper acknowledges that specific services may change from time to
time and that if the services change, INNsight will provide notification to
INNkeeper of such changes to services provided under the various packages.
5.3 INNsight offers an additional program called the Keen®
Reputation Management System, as more fully described on
INNsight’s website at https://innsight.com/hotel-restaurant-reputation-management
(i) As part of the Keen® Reputation Management System, INNkeeper
agrees to provide access to INNsight to review site login credentials and
permits INNsight to manage accounts on their behalf.
(ii) INNkeeper acknowledges that the Keen® Reputation Management
System is automatically included and enabled when subscribed to the Premium
Marketing Engagement package.
(iii) INNkeeper acknowledges having reviewed this webpage and fully
understands the services offered.
(iv) INNkeeper acknowledges and agrees that INNsight is not responsible for
negative reputation or any financial or material losses from reputation
scores or management of reputation online.
(v) INNsight agrees to respond to the last 5 reviews per client on Yelp and
TripAdvisor at inception and thereafter reply to all future reviews.
(vi) INNsight can respond to any review at any time on behalf of INNkeeper
with or without permission or review of the response.
(vii) INNsight reserves the right to skip drafting responses to reviews if it
is not in the best interest of INNkeeper.
(viii) INNsight will attempt to contact INNkeeper for context to any reviews
it does not feel comfortable drafting a response, at its own discretion.
(ix) INNsight may reuse certain review responses or elements of such
responses across any current or future INNkeepers and thereby each response
may not be entirely authentic.
(x) INNkeeper acknowledges that specific services may change from time to
time and that if the services change, INNsight will provide notification to
INNkeeper of such changes to services provided under the various packages.
(xi) INNsight reserves the right to use the INNkeeper name or certain
personally identifiable data in responses.
(xii) INNsight will attempt to edit responses at the direction of the client
if permissible by the EULA of the review site.
(xiii) INNsight will abide by any provisions of EULA from Reviews Sites i.e.
Yelp, TripAdvisor, Google Reviews, and OTAs as INNsight will be bound by
their specific T&Cs.
(xiv) INNsight will use best practices to manage reputation and will do its
best to honestly represent the client, but cannot guarantee accuracy and
performance.
(xv) INNsight draft content is the Intellectual Property of INNsight and
content is licensed to INNkeeper.
(xvi) While INNsight will make its best efforts to maintain accuracy and
professional content writing, INNsight will not indemnify any parties or
others from inaccuracy, omission, spelling/grammar mistakes, etc. from
content that is drafted.
(xvii) INNkeeper can cancel the Keen® Reputation Management System
at any time.
5.4 INNsight offers Dedicated Email Hosting as an additional service, as more
fully described on INNsight’s website at
https://innsight.com/small-business-dedicated-email-hosting
(i) As part of this Dedicated Email Hosting subscription, INNkeeper elects to
have INNsight host and manage its dedicated email boxes.
(ii) INNkeeper acknowledges having reviewed this webpage and fully
understands the features of this service.
(iii) INNsight provides 25GB Mailbox Storage with a capacity for 50 MB
Attachments.
(iv) INNsight provides Unlimited Forwarding and Free Email Aliases.
(v) INNsight provides Anti-Spam and Anti-Virus protection and data breach
security via its hosting partner but cannot guarantee clients from a
security breach or virus.
(vi) INNsight will not be liable for any damage to software, hardware, or
equipment, or loss of personal data tied to any hacking event or virus
derived from email hosting functions.
(vii) INNsight provides setup with various email client(s) (e.g. MS Outlook),
use webmail, or mobile device to access email.
(viii) INNkeeper can cancel at any time and be provided a prorated refund
based on unused time.
(ix) INNkeeper agrees that at cancellation, access to @domain emails will
cease and INNkeeper will need to find another provider and INNsight is not
responsible for any and all lost, missing, or deleted emails.
(x) INNsight is not responsible or liable for any spam law violations.
(xi) INNsight is not responsible for or required to monitor content for any
and all email content or transmission of data, text, or pictures in any
form: child porn transmission or other illicit activity conducted through
INNkeeper’s email.
(xii) INNsight also will not be responsible for adherence to the European
Union’s General Data Protection Regulations (GDPR) or privacy violations
committed by INNkeeper while using the service.
(xiii) INNkeeper agrees that the use of INNsight mail servers for elicit
solicitation will result in termination.
(xiv) INNsight is not responsible for defending against the blacklisting of
email addresses from Internet Service Providers (ISP).
(xiv) INNsight is not responsible for defending against the blacklisting of
email addresses from Internet Service Providers (ISP).
5.5 INNsight reserves the right to modify pricing, service, and associated
features of any of these services at any time with notice to the INNkeeper
within 14 days of such change either by posting on their website and/or an
electronic or written means to INNkeeper at any such address as set out in
this Agreement.
6. THIRD-PARTY TRANSACTION HANDLING
6.1 As a Marketing Engagement client of INNsight:
(i) INNkeeper may elect to have a Third Party Transaction Website handle all
guest reservation processing.
(ii) INNkeeper has received authorization from the Third Party Transaction
Website to accept guest reservation requests on behalf of its INN.
(iii) Consequently, the INNkeeper hereby authorizes the following Third Party
Transaction Website with its details as follows to accept Guest reservation
availability requests from its Hotel Website:
| Third Party Transaction Website Information |
|
THIRD PARTY WEBSITE NAME:
|
WEBSITE LEGAL OWNER NAME:
|
| INNkeeper has been provided permission by
website owner to connect standalone website
Powered by INNsight to interface with its
website? |
YES
|
NO
|
|
|
THIRD PARTY WEBSITE PROPERTY SPECIFIC
URL:
|
Table 1: Third Party Transaction Website Details
(iv) INNsight will follow the Application Programming Interface (API)
requirements for the Third Party Transaction Site to establish the
connectivity between the Hotel Website and the booking engine of the target
Third Party.
a. If no interface exists nor is supported by the Third Party, INNsight will
not be responsible for providing any such proprietary software to enable
such an interface.
b. The support of any availability and connectivity issues in the interchange
and exchange of data between the Hotel Website and the Third Party
Transaction Site will not be the responsibility of INNsight.
7. INNsight BOOKING ENGINE
7.1 INNkeeper can elect to use the INNsight Booking Engine, a proprietary
booking engine developed by INNsight and optimized for driving the
conversion of website visitors to accommodation reservations.
7.2 The INNsight Booking Engine currently charges Zero Commission on the sale
of accommodations online; however INNsight reserves the right to modify this
rule with appropriate notice to INNkeeper.
8. COMMISSION
8.1 INNkeeper shall pay no commission to INNsight as per this agreement
INNkeeper has elected to use a Third Party Transaction Website for
reservation bookings OR is using the INNsight Booking Engine, which is
currently offered at Zero-Commissions.
8.2 Every one-year anniversary from the effective date of this Agreement,
INNkeeper agrees that an agreed upon fixed fee and/or the agreed upon
Commission percentage fee can be changed at the discretion of INNsight.
8.3 INNsight shall provide Notice to the INNkeeper within 30 days prior to
any change in commission or fixed fee per month and/or an agreed-upon
percentage fee per transaction.
8.4 INNkeeper shall be responsible in full for any API usage or transaction
fees levied by their contracted Third Party Transaction Site.
9. PRICING & PACKAGE SELECTION
9.1 INNkeeper shall be responsible for paying for the Marketing Engagement
and Al A Carte products and services as follows:
(i) Standalone Keen® Reputation Management System
Package: The cost for the Standalone Keen®
Reputation Management System Subscription Package is $159 per month.
(ii) Bundled Keen® Reputation Management System
Package: The cost for the Keen® Bundled
Reputation Management System Subscription Package is $0 per month and is
included with the Premium Package.
9.2 The Marketing Engagement Services per month prices (See Section 9.1) and
the Standalone and Bundled ADA Tray® services per month (see Section 9.1)
and the Standalone and Bundled Keen® Reputation Management System
Package(s) (see Section 9.1) and Dedicated Email Hosting (See Section 9.1)
are subject to change and INNsight reserves the right to modify the cost for
each subscription package with appropriate notice to INNkeeper.
10. PACKAGE SELECTION
10.1 INNkeeper has reviewed the above options provided by INNsight and
selects the following package: (Please check at least one package)
Standalone
Keen® Reputation Management System Subscription
Package at $159 per month
10.2 Every one-year anniversary from the date of execution of this Agreement,
INNkeeper agrees that the monthly subscription rate for the Lite, Basic,
Premium, and Standalone Subscription Package(s) (of Sections 9.1, 10.1) can
be changed at the discretion of INNsight.
10.3 INNsight shall provide notice to the INNkeeper within 30 days prior to
any change in pricing for said Package(s).
11. WEBSITE OWNERSHIP
11.1 Website Domain
(i) Upon receipt of the Termination Notice, in the case if INNkeeper did not
previously own the Website Domain and INNkeeper wishes to claim ownership of
the Domain for their Property’s Website, INNkeeper will be required to
purchase the Domain from INNsight.
(ii) The purchase price of the Domain will be determined by INNsight based on
the cost of registration of the said Domain.
(iii) Upon purchase of the Domain by INNkeeper from INNsight, INNsight will
transfer Domain registration to INNkeeper’s desired domain registrar within
30 days of the transfer of Domain ownership.
(iv) If INNkeeper is the original owner of the Domain, INNsight will transfer
Domain registration to INNkeeper’s desired domain registrar within 30 days
of Termination.
(v) If INNkeeper fails to facilitate the transfer of Domain within 30 days of
termination, INNkeeper will thereby forfeit ownership of the Domain to
INNsight.
11.2 Website Content
(i) INNsight will create new content to describe the INN leveraging existing
information found on the Internet and provided by the INNkeeper. Any license
to use the intellectual property automatically ceases when the client
subscription ends. INNsight will retain all Intellectual Property Rights on
any content that is unique and created by INNsight including website design,
property descriptions, and any logo or photography created by INNsight.
(ii) All Standalone Website content, data, and software code created by
INNsight shall remain the property of INNsight upon termination and
INNkeeper acknowledges that the Standalone Website Powered by
INNsight will not operate without a valid subscription to the
software service, therefore the INNkeeper will need to create a new website
or transition back to their original website hosted by a third party host.
(iii) INNsight agrees to cooperate with INNkeeper in transitioning to the
INNkeeper’s new desired third-party host within 14 days of termination.
(iv) INNsight Logo and Link
a. INNkeeper agrees to allow INNsight to place a non-obtrusive text logo and
link to INNsight’s website in order to demonstrate licensing privilege for
any copyrighted materials such as stock imagery that is owned by INNsight.
12. EXISTING WEBSITE CONTENT
12.1 INNkeeper understands that any current website content will no longer be
accessible upon the wire on of their new website Powered by INNsight
and it is their responsibility to archive or retain any existing data on
their current server if they wish to retain such data for future use.
The current website is located at
http://www.___________________________________
13. TERM AND TERMINATION
13.1 Unless otherwise agreed to in writing, this Agreement shall commence on
the Effective Date and be effective for one (1) year. This Agreement shall
continue thereafter indefinitely until terminated in writing by either
Party.
13.2 Either Party may terminate this Agreement without providing notice and
with immediate effect in case of:
(i) A material breach by the non-terminating Party of any term of this
Agreement (e.g. excessive delay of subscription payment, insolvency, posting
false or misleading information on the Website; or
(ii) A bankruptcy filing by either Party.
13.3 Term. This Agreement shall remain in effect
until INNkeeper provides a termination notice, as provided below.
13.4 Termination. The INNkeeper can terminate this
Agreement at any time. In the event INNkeeper would like to terminate the
subscription package selected below, the INNkeeper shall provide INNsight
with written notice of termination (“Termination Notice”), addressed to
INNsight at its corporate office via mail, fax, or e-mail, at least thirty
(30) days prior to the proposed termination date.
13.5 Upon termination and save as set out otherwise, this Agreement shall
absolutely and entirely terminate with respect to the terminating Party and
cease to have effect without prejudice to the other Party’s rights and
remedies with respect to indemnification or a breach by the other,
terminating, Party of this Agreement. Sections 14, 15, 16, and 17 shall
survive termination.
14. REPRESENTATIONS AND WARRANTIES
14.1 The INN represents and warrants to INNsight that for the term of this
Agreement:
(i) The INNkeeper has all necessary rights, power, and authority to use,
(sub)license and have INNsight make available on the Website the
Intellectual Property Rights as set out or referred to in the INN
Information made available on the Website;
(ii) The INNkeeper holds and has all permits, licenses, and other
governmental authorizations necessary for conducting, carrying out, and
continuing its operations and business;
(iii) The INNkeeper acknowledges they are solely responsible for complying
with The Americans with Disabilities Act (ADA).
(iv) While INNsight endeavors to follow Web Content Accessibility Guidelines
(WCAG) 2.1, INNsight specifically disclaims any guarantee that the products
and/or services provided to INN are in compliance with The Americans with
Disabilities Act (ADA) or any other accessibility laws that the INN is
subject to.
(v) The parties hereto further acknowledge that services and products are
provided ‘as-is’ and ‘as available’ and INNsight disclaims all warranties,
express or implied, including but not limited to implied warranties of
merchantability and fitness for a particular purpose and non-infringement.
In the event of a failure of the product or INNsight services to INNkeeper,
INNsight will attempt to resume services as quickly as possible with no
additional charges to INNkeeper.
(vi) INNsight will not be liable for lost profits, work interruption, or
special, or consequential damages resulting in whole or in part from errors,
omissions, or failures in its product or service.
(vii) INNsight makes no warranties or guarantees regarding the accuracy of
the Website or for the performance of any services provided by or for social
media channels of email marketing which is provided by INNkeeper or for
information generated by INNsight, which has been approved by INNkeeper.
15. INDEMNIFICATION AND LIABILITY
15.1 IN NO EVENT SHALL INNSIGHT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY ANY
THIRD PARTY RELATING TO ANY SOFTWARE OR YOUR USE OF ANY SOFTWARE, INCLUDING,
WITHOUT LIMITATION, ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
RIGHTS. IN NO EVENT SHALL INNSIGHT BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS, BUSINESS
INTERRUPTION, NON-PERFORMANCE OF SOFTWARE PRODUCT, LOSS OF INFORMATION, DATA
OMISSIONS OF THE SOFTWARE or ANY SOFTWARE, DATA PRIVACY LIABILITY, PRIVATE
CUSTOMER DATA LIABILITY, THIRD PARTY CUSTOMER DATA LIABILITY, ERRORS IN DATA
TRANSMISSION OF ANY SOFTWARE, ERRORS IN TRANSMISSION OF RESERVATION
INFORMATION, ANY IMPACT ON REVENUE, ANY INCREASE OR DECREASE IN BUSINESS OR
COMPANY PERFORMANCE, OR LOSS OF OTHER SOFTWARE, WHETHER BASED ON BREACH OF
CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY, OR OTHERWISE, EVEN IF INNSIGHT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY
FORESEEN. IN ADDITION, IN NO EVENT SHALL INNSIGHT BE LIABLE FOR THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. TO THE FULLEST EXTENT ALLOWABLE
BY LAW, INNSIGHT’s TOTAL LIABILITY ON ALL CLAIMS, WHETHER IN CONTRACT,
WARRANTY, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT
LIABILITY, INDEMNITY, CONTRIBUTION, OR OTHERWISE, SHALL NOT EXCEED FEES PAID
FOR PRODUCTS AND SERVICES UNDER THIS CONTRACT DURING THE TWELVE (12) MONTHS
PRIOR TO THE DATE SUCH CAUSE OF ACTION AROSE.
15.2 Customer, Licensee, and Sub-licensee Representations,
Warranties, Disclaimers, and Indemnification
(i) Customer, licensee, and sub-licensee hereby represent and warrants that
(i) the person signing this Agreement on its behalf has been properly
authorized and empowered to enter into this Agreement on behalf of Customer,
licensee, and sub-licensee and (ii) this Agreement is a valid and binding
obligation of Customer, licensee, and sub-licensee enforceable against it in
accordance with the terms and conditions hereof.
(ii) Customer, licensee, and sub-licensee agree to defend, indemnify and
hold Provider, licensor harmless from and against any and all claims,
demands, liabilities, obligations, cost, and expenses of any nature
whatsoever arising out of or based upon Customer, licensee, and sub-licensee
use of the Software Product, including, without limitation, any
modifications, alterations, enhancements, brand licensing terms,
Intellectual Property Rights including misuse of trademarks, copyrights,
franchise brand licensing terms or marks, etc. thereto, except for any such
claims, demands, liabilities, obligations, costs or expenses that are based
upon the gross negligence or intentional misconduct of Provider, licensor
except for any claims of infringement subject to Provider, licensor’s
indemnification pursuant to Section 15.3(iii) of this Agreement.
15.3 Provider, Licensor Representations, Warranties, Disclaimers, and
Indemnification
(i) Provider, licensor warrants that (a.) the person signing this Agreement
on its behalf has been properly authorized and empowered to enter into this
Agreement on behalf of Provider, licensor, and (b.) this Agreement is a
valid and binding obligation of Provider, licensor enforceable against it in
accordance with the terms and conditions hereof.
(ii) Provider, licensor shall not be liable to Customer, licensee,
sub-licensee (or to any person claiming rights derived from Customer,
licensee, and sub-licensee) for incidental, consequential, indirect,
special, punitive, or exemplary damages of any kind, including, without
limitation, lost profits, loss of business, or other economic damage, and
further including injury to property, as a result of Customer’s, licensee’s,
sub-licensee’s use of the Software Product, Provider’s, licensor’s, and
sub-licensor’s services, or breach of any warranty or other term of this
agreement, regardless of whether Provider, licensor was advised, had reasons
to know, or in fact knew of the possibility thereof.
(iii) Provider, the licensor shall indemnify and hold Customer, licensee,
and sub-licensee harmless from and against any damages, liabilities, costs,
and expenses, including reasonable attorneys’ fees, arising from a claim
against Customer, licensee, and sub-licensee that the Software Product in
the form delivered by Provider, licensor infringes or misappropriate any
copyright, United States patent, trade secret or any other proprietary right
of any third party, provided Provider, the licensor is given prompt written
notice containing detailed information with regard to any such claim, suit
or proceeding. Customer, licensee, sub-licensee legal counsel shall have the
option to participate, at Customer’s, licensee’s, and sub-licensees' sole
expense, in the defense of any such claim or action, and Customer, licensee,
and sub-licensee shall not settle any such claim or action without Provider,
licensor prior written consent. The foregoing represents the entire warranty
by the Provider, licensor, and the exclusive remedy of the Customer,
licensee, or sub-licensee with regard to any claimed copyright, patent
rights, trade secrets, or other proprietary rights infringement arising out
of or based upon the Software Product used by Customer, licensee,
sub-licensee.
(iv) The parties acknowledge and agree that the terms of this Agreement are
based in substantial part on the provisions of this Section relating to
disclaimers of warranties, limitations of remedies, limitations of
liability, and exclusions of damages, and that such disclaimers,
limitations, and exclusions are unrelated, independent allocations of risk
that form a material basis of this Agreement. Accordingly, the parties agree
that if any remedy hereunder is determined to have failed of its essential
purpose, all limitations of liability and exclusions of damages set forth
herein shall remain in full effect.
16. CONFIDENTIALITY
16.1 Parties understand and agree that in the performance of this Agreement,
each Party may have access to or may be exposed to, directly or indirectly,
confidential information of the other Party (the "Confidential
Information"). Confidential Information includes Customer Data,
transaction volume, marketing and business plans, business, financial,
technical, operational, and such other non-public information that either a
disclosing party designates as being private or confidential or of which a
receiving party should reasonably know that it should be treated as private
and confidential.
16.2 Each Party agrees that: (a) all Confidential Information shall remain
the exclusive property of the disclosing party and receiving party shall not
use any Confidential Information for any purpose except in furtherance of
this Agreement; (b) it shall maintain, and shall use prudent methods to
cause its employees, officers, representatives, contracting parties and
agents (the "Permitted Persons") to maintain the
confidentiality and secrecy of the Confidential Information; (c) it shall
disclose Confidential Information only to those Permitted Persons who need
to know such information in furtherance of this Agreement; (d) it shall use
prudent methods to ensure that the Permitted Persons do not, copy, publish,
disclose to others or use (other than pursuant to the terms hereof) the
Confidential Information; and (e) it shall return or destroy all hard and
soft copies of Confidential Information upon written request of the other
Party.
16.3 Notwithstanding the foregoing, Confidential Information shall not
include any information to the extent it (i) is or becomes part of the
public domain through no act or omission on the part of the receiving party,
(ii) is disclosed to the receiving party by a third party having no
obligation of confidentiality with respect thereto, or (iii) is required to
be disclosed pursuant to law, court order, subpoena or governmental
authority.
16.4 Parties shall use commercially reasonable efforts to safeguard the
confidentiality and privacy of Customer Data and to protect it from
unauthorized use or release.
16.5 No Modifications, Reverse Engineering. You may not (a) modify, port,
adapt or translate any portion of INNsight’s Services or Software; or (b)
reverse engineer, decompile, disassemble, or otherwise attempt to discover
the source code or any portion of any Service or Software. If the laws of
your jurisdiction give you the right to decompile the Software to obtain
information necessary to render the licensed portions of the Services or
Software interoperable with other software, you must first request such
information from us.
17. MISCELLANEOUS
17.1 Neither Party shall be entitled to assign, transfer, encumber any of its
rights and/or the obligations under this Agreement without the prior written
consent of the other Party, provided that INNsight may assign, transfer,
encumber any of its rights and/or the obligations under this Agreement, in
whole or in part, or from time to time, to an affiliated company without the
prior written consent of the INN.
17.2 All notices and communications must be in English, in writing, and sent
by facsimile or nationally recognized overnight air courier to the
applicable facsimile number or address set out in the Agreement.
17.3 This Agreement including the appendixes which form an integral part of
this Agreement constitutes the entire agreement and understanding of the
Parties with respect to its subject matter and replaces and supersedes all
prior agreements, arrangements, offers, undertakings, or statements
regarding such subject matter vis-à-vis the INN).
17.4 If any provision of this Agreement is or becomes invalid or non-binding,
the Parties shall remain bound by all other provisions hereof. In that
event, the Parties shall replace the invalid or non-binding provision with
provisions that are valid and binding and that have, to the greatest extent
possible, a similar effect as the invalid or non-binding provision, given
the contents and purpose of this Agreement.
17.5 Save as set out otherwise in this Agreement, the laws of the State of
California shall exclusively govern this Agreement. If a dispute arises out
of or relates to this Agreement or its breach, the parties agree to resort
to binding arbitration. Any claim or controversy arising from this Agreement
shall be settled by arbitration in accordance with the Rules of the American
Arbitration Association or Judicial Arbitration and Mediation Service
(“JAMS”) at the election of the party filing the claim in the County of San
Francisco, State of California, and the judgment upon the award rendered by
the Arbitrator(s) may be entered in any court having jurisdiction. In
addition to a monetary award, the Arbitrator(s)’ shall have the power to
order any other applicable remedy. The parties shall have the right to
discovery as provided by California Code of Civil Procedure §1283.05. The
prevailing party in the arbitration may be awarded its reasonable attorneys’
fees and costs at the discretion of the Arbitrator.
17.6 Parties agree and acknowledge that notwithstanding this Section, nothing
in this Agreement shall prevent or limit INNsight, Inc. in its right to
bring or initiate any action or proceeding or seek interim injunctive relief
or specific performance before or in any competent courts where the INN is
established or registered under the laws of the relevant jurisdiction where
the INN is established or registered and for this purpose, the INNkeeper
waives its right to claim any other jurisdiction or applicable law to which
they might have a right.
18. NOTICE PROVISIONS
Notices pursuant to this Agreement shall be provided in writing via Certified
Mail or e-mail as follows:
“INNsight”
INNsight, Inc.
2445 Ocean Avenue
San Francisco, CA 94127
For any inquiries, please contact us at legal@innsight.com.
| INNsight Subscription: |
|
INNsight Marketing
Engagement Lite Subscription
|
|
INNsight Marketing
Engagement Basic Subscription
|
|
INNsight Marketing
Engagement Premium Subscription
|
|
INNsight ADA
Tray® Standalone Subscription
|
|
INNsight ADA
Tray® Bundled Subscription
|
|
Keen®
Reputation Management Service Standalone
Subscription
|
|
Keen®
Reputation Management Service Bundled
Subscription
|
|
INNsight Dedicated Email
Hosting Subscription
|
|
| Hotel Name or DBA: |
|
| Corporation or LLC Name: |
|
| Your Name: |
|
| Position: |
INNkeeper |
| Today’s Date: |
05/31/2023 |
| Signature: |
x_______________________________________ |
| Electronic Signatures (eSign): Each party agrees
that the electronic signatures, whether digital or encrypted, of
the parties included in this Agreement are intended to
authenticate this writing and to have the same force and effect
as manual signatures. Delivery of a copy of this Agreement or
any other document contemplated hereby bearing an original or
electronic signature by facsimile transmission (whether directly
from one facsimile device to another by means of a dial-up
connection or whether mediated by the worldwide web), by
electronic mail in portable document format (.pdf) form, or by
any other electronic means intended to preserve the original
graphic and pictorial appearance of a document, will have the
same effect as physical delivery of the paper document bearing
an original or electronic signature. |
