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 INNbox Package: The cost for the Standalone INNbox Subscription Package is $59.99 per month.
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)
INNbox Subscription Package $59.99 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-a-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
|
|
INNsight Online Guest
Directory Subscription
|
|
INNsight INNbox 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. |
