TERMS AND CONDITIONS FOR USE OF BOOKINGHOUND, REZSYSTEM OR ANY AFFILIATED PROGRAM OR ROUTINE
By using or accessing BookingHound reservation system or a subdomain of such website (each referred to herein as a "Site"), you acknowledge that you agree to and are subject to the following terms and conditions (collectively, the "Terms" or “Agreement”). If you do not fully agree to these Terms and any other terms and conditions posted or linked to any Site, you are not authorized to access or otherwise use the Site. Under these Terms, "use" or "access" of the Site specifically includes any direct or indirect access or use of the Site or any cached version of the Site and any direct or indirect access or use of any information or content on the Site, regardless of how obtained and the term "Site" includes, without limitation, any cached version thereof.
Each Site is operated by Booking Hound. Unless otherwise specified, the entity controlling the Site you are accessing is referred to herein as BookingHound, RezSystem, "we," "us" or "our". The term “Client” means each person who clicks on the “I Agree” icon on the Site together with such other persons or entities represented by the person so clicking.
You should read through all the Terms carefully. The Terms constitute a legally binding agreement between you and us. You are not authorized to use this Site unless you are at least 18 and able to enter into legally binding contracts. We do not knowingly collect the information of anyone under the age of 18.
We hereby grants to Client and Client accepts subject to the Terms, a non-exclusive license ("Software License") to access and Use (as defined below) the computer software program we provide ("Licensed Program"), as such Licensed Program is enhanced or modified by us from time to time.
“Client Data" means Client's data that Client provides in connection with Client's Use (as defined below) of the Licensed Program under this Agreement.
"Effective Date" means the date that Client accepts the Terms by clicking the I Agree icon.
"Force Majeure Event" means any event beyond the reasonable control of the party affected by such event, including, without limitation fire, storm, weather, earthquake, explosion, casualty, strike, war, riot, civil disturbance, act of God, acts or omission of any third party, any state or national law, decree or ordinance, or any executive or judicial order, which event causes a party to delay or fail to perform under this Agreement.
"License Fee" means those fees, including set-up fees and per transaction fees, charged for Use of the Licensed Program as such fees may be changed from time to time.
"Site" means sites on the Worldwide Web, or such other URL as we may designate from time-to-time upon notice to Client.
"Use" means (i) directing Client's customers to the Site to shop to make and pay for reservations, (ii) administering Client’s data and information contained on the Site, and (iii) retrieving Client’s information from the Licensed Program. "Use" shall not include service, maintenance or modification by anyone other than us.
License Restrictions: Access to Site.
The Software License granted to Client is a non-exclusive, non-assignable, non-transferable, limited license (without right to sublicense) to Use the Licensed Program via access to the Site, solely for Client's business purposes.
Client may not rent, lease, sell, sublicense, transfer, time share, modify, reproduce, distribute or publish the Licensed Programs. Client may not use the Licensed Programs for any purpose other than that stipulated herein. Client may not reverse engineer, decompile or otherwise attempt to discover the source code for the Licensed Programs. Client may not permit any person or entity to breach the restrictions included in this section.
Access to the Site.
We will use commercially reasonable efforts to make the Site and the Licensed Programs accessible 24 hours per day, seven (7) days per week, excluding down time for maintenance and repair. We will use commercially reasonable efforts to timely address planned or unplanned down time for repair or maintenance.
Term and Termination.
This Agreement will commence on the Effective Date and shall remain in full force so long as Client has timely paid the License Fee.
Termination for Convenience.
Either we or Client may terminate this Agreement without cause and for its convenience by providing to the other notice thereof. Upon such termination, Client shall immediately pay any and all fees owed that have not been paid as of the time of termination. In the event that Client terminates this Agreement pursuant to this section, Client shall not be entitled to a refund of all or any portion of any fees paid prior to the date of such termination.
Effect of Termination.
Immediately upon the effective date of the termination or expiration of this Agreement for any reason, except as otherwise provided in this Agreement, the Software License granted in this Agreement will terminate and Client's ability to access the Licensed Program via the Site or otherwise will be disabled.
Client's obligations to pay any License Fees, Client’s waivers regarding Hackers Getting at Client Data, Confidentiality, and Limitation of Liability and Warranties shall survive any termination or expiration of this Agreement.
Client agrees to pay us the License Fee in accordance with our payment terms announced from time to time, including any electronic fund transfer terms as may be required by us.
Failure to Pay Fees When Due.
Failure of Client to timely pay any fees due shall be deemed a default by Client under the terms of this Agreement. Client acknowledges and agrees that if Client fails to pay any License Fee or any other fee due when such fees are due, we may block Client's access to the Site and the Licensed Programs. In addition, sums past due shall accrue interest from the date due until paid at the rate of one and one half (1 ½ %) percent per month or the maximum rate allowed under applicable law, whichever is less.
The License Fee is exclusive of any tariff, duty, or tax, however designated, levied or based, including, without limitation, any sales or use taxes in any state and local privilege or excise taxes based on gross revenue, on (i) either this Agreement, the Licensed Programs and/or Client's Use of it, or (ii) any materials or supplies agreed to be furnished by us under this Agreement. Client agrees to pay and be responsible for any and all of those applicable taxes and levies (exclusive, however, of income taxes based on our net income). We shall have the right, but shall have no obligation, to pay any of those taxes or levies directly, in which event Client shall reimburse us, on demand, the amount so paid by us. In no event does the exercise or non-exercise by us of the foregoing right relieve Client of its obligations under this Agreement or impose any liability whatsoever on us.
Storage of Client Data.
Subject to Force Majeure Events, we agree to store all Client Data provided to us by Client as a part of Client's Use of the Licensed Programs on our server(s). Client hereby grants a non-exclusive license, during the term of this Agreement, to reproduce Client Data on our server(s). We shall not be responsible or liable to Client if the backup of the Client Data fails as a result of a Force Majeure Event. Notwithstanding the foregoing, if any Client Data is lost for any reason, we agree to use commercially reasonable efforts to attempt to recover such Client Data and we will cooperate with Client to enable Client to identify the lost Client Data.
Limited Liability for Hackers Getting at Client Data. We agree to use (i) firewalls and other technology generally used in the trade to attempt to prevent unauthorized access to its computer systems storing Client Data and (ii) available encryption technology generally used in the trade to secure the transmission of Client Data to Client to attempt to prevent unauthorized access during transmission. Notwithstanding the foregoing, we shall not be liable to Client in the event that (i) its use of firewall and other technology fails to prevent a third party from being able to "hack" into our servers to access Client Data or (ii) its use of such encryption does not prevent a third party from being able to "hack" into such transmissions. We shall not be liable to Client for a third party's access to the transmission of Client Data to or from our servers. Nothing in this section shall constitute a representation or warranty by us that the storage or transmission of Client Data will not be accessible by a third party.
LIMITATION OF LIABILITIES
IN NO EVENT WILL REZSYSTEM, BOOKINGHOUND, OR ITS ALLIES, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, CONSULTANTS, AGENTS AND/OR EMPLOYEES (COLLECTIVELY, THE "REZSYSTEM GROUP") BE LIABLE FOR ANY LOST PROFITS OR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM (A) THE SITE, (B) THIS LICENSE AGREEMENT, (C) ANY BREACH OF THIS LICENSE AGREEMENT BY CLIENT OR A THIRD PARTY, (D) USE OF THE SITE, TOOLS OR SERVICES WE PROVIDE RELATED TO THE BUSINESS IT OPERATES ON THE SITE BY CLIENT OR ANY THIRD PARTY (E) ANY USER CONTRIBUTED CONTENT, (F) INTERACTION BETWEEN THE SITE AND ANY THIRD PARTY SITE, INCLUDING WITHOUT LIMITATION A SOCIAL MEDIA SITE, FACILITATED BY A TOOL OR SERVICE ON OUR SITE AND/OR (G) ANY ACTUAL OR ATTEMPTED COMMUNICATION OR TRANSACTION BETWEEN USERS, IN EACH CASE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) STRICT LIABILITY, (4) TORT, (5) NEGLIGENCE, OR (6) ANY OTHER CAUSE OF ACTION, TO THE MAXIMUM EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW.
IF CLIENT IS NOT SATISFIED WITH THE SITE, OR DOES NOT AGREE WITH ANY PART OF THESE TERMS, OR HAS ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US OR ANOTHER USER OF THE SITE WITH RESPECT TO THESE TERMS OR THE SITE, THEN CLIENT’S SOLE AND EXCLUSIVE REMEDY AGAINST US IS TO DISCONTINUE USING THE SITE. IN ALL EVENTS, OUR LIABILITY, AND THE LIABILITY OF ANY MEMBER OF THE OUR GROUP, TO CLIENT OR ANY THIRD PARTY IN ANY CIRCUMSTANCE ARISING OUT OF OR IN CONNECTION WITH THE SITE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES CLIENT PAID TO US IN THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (B)
100.00 IN THE AGGREGATE FOR ALL CLAIMS.
THE SITE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, IS PROVIDED "AS IS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE SITE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SITE, FOR ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE OR ANY LINKED SITE, EVEN IF WE BECOME AWARE OF ANY SUCH BREACHES. FURTHER, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CLIENT ACKNOWLEDGE AND AGREES THAT ANY TRANSMISSION TO AND FROM THIS SITE IS NOT CONFIDENTIAL AND CLIENT COMMUNICATIONS OR USER CONTRIBUTED CONTENT MAY BE READ OR INTERCEPTED BY OTHERS. CLIENT FURTHER ACKNOWLEDGE AND AGREES THAT BY SUBMITTING COMMUNICATIONS OR USER CONTRIBUTED CONTENT TO US AND BY POSTING INFORMATION ON THE SITE, NO CONFIDENTIAL, FIDUCIARY, CONTRACTUALLY IMPLIED OR OTHER RELATIONSHIP IS CREATED BETWEEN CLIENT AND UD OTHER THAN PURSUANT TO THESE TERMS. CLIENT ACKNOWLEDGE AND AGREES THAT CLIENT WILL NOT HOLD OR SEEK TO HOLD US OR ANY THIRD PARTY PROVIDER RESPONSIBLE FOR THE CONTENT PROVIDED BY ANY USER, INCLUDING, WITHOUT LIMITATION, ANY TRANSLATION THEREOF, AND CLIENT FURTHER ACKNOWLEDGE AND AGREE THAT WE ARE NOT A PARTY TO ANY BOOKING OR OTHER TRANSACTION BETWEEN USERS OF THE SITE.
We do not and cannot control the flow of data to or from our servers via the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Client's connection to the internet. We will use commercially reasonable efforts as it deems appropriate to remedy and avoid such events but cannot guarantee that such events will not occur. Accordingly, we disclaim any and all liability resulting from or relating to such events.
IN THE EVENT THAT CLIENT HAS A DISPUTE WITH ONE OR MORE OTHER USERS OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BETWEEN USERS REGARDING ANY TRANSACTION OR USER CONTRIBUTED CONTENT) OR ANY THIRD PARTY WEBSITE THAT MAY BE LINKED TO OR FROM OR OTHERWISE INTERACT WITH THE SITE, INCLUDING WITHOUT LIMITATION ANY SOCIAL MEDIA SITE, CLIENT HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE EACH MEMBER OF OUR GROUP, EACH OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE AND/OR CLIENTR USE OF THE SITE.
CLIENT HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD EACH MEMBER OF THE OUR GROUP (COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF CLIENT’S USE OF THE SITE OR OTHERWISE RELATING TO THE BUSINESS CLIENT CONDUCTS ON THE SITE (INCLUDING, WITHOUT LIMITATION, ANY POTENTIAL OR ACTUAL COMMUNICATION, TRANSACTION OR DISPUTE BETWEEN CLIENT AND ANY OTHER USER OR THIRD PARTY), ANY CONTENT POSTED BY CLIENT OR ON CLIENT’S BEHALF OR POSTED BY OTHER USERS OF CLIENT’S ACCOUNT TO THE SITE, ANY USE OF ANY TOOL OR SERVICE PROVIDED BY A THIRD PARTY PROVIDER, ANY USE OF A TOOL OR SERVICE OFFERED BY US THAT INTERACTS WITH A THIRD PARTY WEBSITE, INCLUDING WITHTOUT LIMITATION ANY SOCIAL MEDIA SITE OR ANY BREACH BY CLIENT OF THESE TERMS OR THE REPRESENTATIONS, WARRANTIES AND COVENANTS MADE BY CLIENT HEREIN, INCLUDING WITHOUT LIMITATION, ATTORNEYS' FEES AND COSTS. CLIENT SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY CLIENT AND CLIENT SHALL NOT IN ANY EVENT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT.
We reserve the right to use servers and other equipment needed to provide the services contemplated by this Agreement either at its facilities or at the facilities of independent server providers. We may change the location of the servers and other equipment needed to provide the services hereunder at any time during the term of this Agreement.
In the event of any disputes between us and Client arising out of or connected with this Agreement which the parties are unable to resolve through direct negotiation, either party may serve upon the other at its principal place of business a request for mediation. Neither party may file an action against the other in any court or initiate any arbitration proceeding unless and until the party seeking to file such an action or initiate such an arbitration has first requested a mediation hearing and made a good faith effort to complete the mediation process provided in this Agreement.
The party requesting mediation shall arrange for a neutral, independent person with experience in dispute mediation to act as mediator. The mediation shall be held not less than ten (10) or more than twenty (20) days from the date the party requesting mediation gives notice of the request for mediation to the other party. The mediation shall be held at RezSystem’s principal place of business or RezSystem’s chosen alternative. The cost of mediation shall be borne by the parties equally.
The parties shall maintain the mediation proceedings in confidence and shall not disclose to third persons the statements made therein by the other parties or the mediator. The provisions of Nevada law shall apply to the mediation proceedings.
At least five (5) days before the date of the mediation, each party shall provide the mediator with a statement of its position and copies of all supporting documents. Each party shall send to the mediation a person who has authority to bind the party. If the dispute involves third parties, such as Client's customers, they shall also be asked to participate in the mediation, but their presence shall not be necessary for the mediation to proceed.
If a party has participated in good faith in a mediation and is dissatisfied with the outcome, that party may then invoke all legal rights and remedies available to the party at law or in equity.
Independent Contractor Status. Nothing in this Agreement is intended or to be construed to make us and Client partners or joint ventures, or to make the employees, agents, or representatives of one of the parties into employees, agents, or representatives of the other party. The relationship of RezSystem and affiliates with Client shall at all times be that of an independent contractor. No party to this Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
This Agreement is binding on and inures to the benefit of RezSystem and its successors, assigns, and legal representatives. This Agreement is binding on and personal to Client.
Waiver of Breach.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by this Agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor will any waiver constitute a continuing waiver unless the writing so specifies.
The captions of the sections of this Agreement are inserted for convenience only and are not intended to be a part of this Agreement.
This Agreement constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersede all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Agreement.
Attorney Fees and Costs.
In any litigation or other legal proceedings by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party will be awarded reasonable attorney fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment.
If any provision of this Agreement contravenes any law or valid regulation of any regulatory agency or self-regulatory body having jurisdiction over either party, or if any provision is otherwise held invalid or unenforceable by a court or other body of competent jurisdiction, then each such provision shall be automatically terminated and performance of that provision by both parties waived. However, if that provision is reasonably considered by either party to be an essential element of this Agreement, and the parties are unable to agree on an alternative provision within ninety (90) days after the invalidation of the provision in question, this Agreement may be terminated in its entirety at the option of the part reasonably considering the contravening provision to be an essential element of this Agreement. That termination shall be effective when that party gives notice of that termination to the other party.