Terms and Conditions
Updated December 29, 2019
This Services Subscription Agreement (the “Agreement”) is made between Revinate, Inc., a Delaware corporation (“Revinate”) and each party (a “Customer”) that executes a Service Order (“Service Order”) for Revinate’s hospitality management services (the “Services”). Between Revinate and each Customer the Agreement consists of these terms, each Service Order and each exhibit, addendum and amendment of any of the foregoing. The “Effective Date” of this Agreement is date of Customer’s initial Service Order. By executing the initial Service Order, Customer agrees to all the terms set forth below.
1 Account Terms
1.1 Subscribing. Customers subscribe for Services by executing a Service Order with Revinate. The Service Order lists the Services start date and the initial term of the Customer’s subscription. Except as otherwise set forth on a Service Order, this Agreement will automatically renew for a period equal to the initial term unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to expiration of the then-current term.Following full execution of the Service Order, Customer may use the Services in accordance with the terms in the Service Order and the other provisions of this Agreement.
1.2 Orders by Affiliates and Property Managers. Customer’s Affiliates may, upon executing a new Service Order and agreeing to be bound by the provisions of this Agreement use the Services identified in that Service Order. Upon execution of a Service Order by Revinate and an Affiliate, the Affiliate will be bound by the provisions of this Agreement as if it was an original party hereto. “Affiliate” means: (a) an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to Revinate or in the business of developing and offering products or technologies that are substantially similar to the Services, or (b) a property management company (“Manager”) that has negotiated an agreement with Revinate to provide Services to multiple properties that it manages, which may be owned by third parties.
2 Use Restrictions
2.1 Appropriate Use of Services. Customer may not: (a) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (b) modify or make derivative works based upon the Services; (c) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or strip, scrape, or mine data from the Services; (d) frame, mirror or reverse engineer the Services; or (v) overload the Revinate systems used to provide the Services.
2.2 Guest Communications. Certain Services permit Customers to send email, SMS and other messages to their guests. The sending of commercial messages is regulated by law, including CAN-SPAM and the Telephone Consumer Privacy Act in the United States. SMS messaging is further regulated by mobile service carriers and by the policies and best practices of the Mobile Marketing Association and the CTIA, which collectively impose requirements regarding the integrity of SMS content and compliance with acceptable use policies. Customer is responsible for complying with all applicable laws, published rules and policies regarding communication with its guests. If a guest opts out of a specific form of messaging from Customer (e.g. SMS), Customer will update the Services accordingly.
2.3 Use of Proprietary Third Party Content. Use of Proprietary Third Party Content. Customer may not modify, republish, reproduce, post, transmit, sell, offer for sale, or redistribute Third Party Content (as defined in section 3.4) without the prior written permission of Revinate and if applicable, the rights holder of Third Party Content (such as industry research data). Customer must abide by all copyright notices, information, or restrictions related to any Third Party Content.
3 Payment and Pricing Terms
Customer will pay Revinate in the currency described on a Service Order (or US Dollars if not specified) the fees in the amounts and at the times specified on the Service Order. Unless otherwise stated, all fees are due 30 days from the date of Revinate’s invoice, and all fees are non-cancelable and non-refundable. Overdue balances are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law. Customer will be responsible for any sales, use, value added, excise, property withholding or similar tax and any related tariffs, and similar charges, except taxes based on Revinate’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Revinate hereunder. If an applicable tax authority requires Revinate to pay any taxes that should have been payable by Customer, Revinate will advise Customer in writing, and Customer will promptly reimburse Revinate for the amounts paid. Revinate may suspend the Services until all undisputed payments are received.
4 Data Protection
4.1 Personal Data Protection. Revinate will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer data process by the Services (“Customer Data”). Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Revinate personnel except: (a) to provide the Services, or (b) as Customer expressly permits in writing. Safeguards also include measures to comply with applicable laws regarding the processing of personal data, including the General Data Protection Regulation and California Consumer Privacy Act. When the Services involve processing of personal data regarding residents of the European Economic Area or California, Revinate’s Data Protection Agreement located at https://www.revinate.com/wp-content/uploads/Revinate-Data-Processing-Addendum-v1.4.pdf is incorporated herein by reference.
4.2 Security. Customer is responsible for maintaining the security of Customer’s account (including password management for users), and is responsible for all activities of its users when using the Services. Revinate cannot and will not be liable for any loss or damage from Customer’s failure to comply with this security obligation.
5 Ownership Rights
5.1 No Ownership Assignment. This is an agreement for the provision of SAAS by Revinate to Customer. Neither party will gain any ownership rights in the other party’s materials or data as a result of this Agreement. Each party’s right to use the other party’s materials or data is limited to the rights provided herein.
5.2 What Revinate Owns. The Services (including all Revinate software, Third Party Content and Revinate Confidential Information used to provide the Services) belong to Revinate and its licensors (if any). Even if the terms “purchase” and “sale” are used, Customer does not receive ownership rights in the Services and has only those license and use rights in this Agreement.
5.3 What Customer Owns. Customer Data and other Customer Confidential Information belong to Customer (or its guests and other third parties, if applicable). Nothing in this Agreement assigns any rights in that information from Customer to Revinate.
5.4 Ownership of Respective Trademarks. Customer may not use the Revinate name, logo or other marks without Revinate’s prior written consent, and Revinate may not use Customer’s name, logo or other marks without Customer’s prior written consent. Ownership of all such marks and the goodwill associated therewith remains with the owner.
5.5 Ownership of Content Received from Third Parties. Revinate gathers, stores, analyzes, displays and uses a variety of information, such as: (a) publicly available reviews and hotel rankings posted on third party web sites, feedback and information provided by guests at Customer facilities, posts from social media sites and forums, news articles, blog posts, photos and videos, and (b) commercially available data regarding hospitality businesses and guest travel and hospitality trends, such as hotel occupancy rates and rate metrics, marketing engagement data and guest travel information (collectively “Third Party Content”). Some Third Party Content is public information (such as online hotel reviews) and other Third Party Content is proprietary to its creators (such as industry research data). Third Party Content may be owned by the people or entities that publish the content, or by other parties.
6.1 Confidential Information. Unless information is deemed non-confidential under the following paragraph, all information disclosed by either party to the other during the term of this Agreement, whether in oral, written, graphic or electronic form, is considered “Confidential Information”.
6.2 Exceptions. Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party. For example, Customer’s guest list is Customer’s Confidential Information and will be protected as provided below. Individual guests may post online reviews on third party sites such as Tripadvisor regarding their hotel visits. The names of such guests and their reviews are Third Party Content and not Customer Confidential Information.
6.3 Nondisclosure. Revinate and Customer each agree that it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who have been informed of the receiving party’s confidentiality obligations under this Agreement and who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
6.4 Return. On the disclosing party’s request or on termination of this Agreement, the receiving party must return or destroy on demand all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party.
6.5 Retention. Notwithstanding the foregoing nothing in this section shall require the return or destruction of any Confidential Information: (a) deemed necessary to comply with any obligations under applicable law, reasonable corporate governance requirements or other contractual requirements; or (b) that cannot reasonably be returned, destroyed or deleted, such as oral communications reflecting Confidential Information, email and standard backup systems. The receiving party shall: (x) continue to extend the protections of this section to such Confidential Information and limit further use and disclosure of such Confidential Information to those purposes that make the return or destruction of such Confidential Information infeasible, and (y) comply with the preceding paragraph as soon as permitted under applicable laws or recipient’s internal record retention policy.
7 Representations and Warranties; Warranty Disclaimer.
7.1 Authority. Each of Revinate and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
7.2 Compliance with Laws. Customer represent and warrant that it will comply with all applicable laws, ordinances, rules, regulations, directives and guidelines applicable to Customer’s use of the Services (collectively “Laws”) including, without limitation, all data privacy and processing Laws.
7.3 Guest Information. Each Customer that uses Revinate’s guest-facing Services represents and warrants to Revinate that it has authority from its guests to provide to Revinate the names, email addresses, telephone numbers and other information of such guests in order to provide those Services.
7.4 Disclaimer. Revinate and its suppliers provide the services “as-is” and “as available” and disclaim all warranties of any kind not provided herein, whether express, implied, or statutory.
8.1 Termination for Cause. Revinate or Customer may terminate this Agreement for a material breach by the other party if, within 30 days after receiving notice of the non-breaching party’s intent to terminate, the breaching party fails to cure such material breach. If Customer terminates this Agreement for any other reason, Customer will be responsible for paying any remaining contracted fees that would have been due during the term if Customer had not terminated.
8.2 Effect of Termination; Survival. Immediately on termination of this Agreement, Customer shall cease all use of the Services. Each party will return or destroy the other’s Confidential Information as provided in Section 6. The sections entitled Ownership, Confidentiality, Indemnification and Limitations of Liability will survive the termination or expiration of this Agreement for any reason.
9.1 By Customer. Customer will indemnify, defend, and hold harmless Revinate, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents (the “Indemnitees”) from and against any and all liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys’ fees) (together, “Losses”) arising from claims, demands, suits, actions or proceedings brought by third parties (including users) (“Claims”) alleging that arising from or relating to: (a) any information Customer or any user submits, posts, or transmits through the Services or any other act or omission of Customer or any user in connection with the Services, (b) Customer’s, or any user’s, grossly negligent use or intentional misuse of the Services, (c) Customer’s, or any user’s, breach of its material obligations under this Agreement, and (d) Customer’s, or any user’s, violation of any rights of any other person or entity arising out of or related to the use of the Services.
9.2 By Revinate. Revinate will defend or settle any Claims against Customer and its Indemnitees where the third party expressly asserts that: ( the Services infringe such third party’s trademark or copyright arising under the laws of the United States, or Revinate misappropriated such third party’s trade secrets in the development of Revinate’s software. Revinate will conduct the defense of any such Claim, any related proceedings and actions, and all negotiations for settlement or compromise of the same. Customer may participate in the defense of any such Claim and any related proceedings and actions at Customer’s expense.
9.3 Indemnification Process. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Claim, the party to be indemnified will notify the other party of the Claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by the indemnified party’s failure to give notice. If the Services become, or in Revinate’s opinion are likely to become, the subject of an infringement or misappropriation Claim, Revinate may, at its option and expense, either: (a) procure for Customer the right to continue exercising the rights licensed hereunder; (b) replace or modify the Services so that they become non-infringing and remain substantially functionally equivalent; or (c) refund to Customer any advance fees paid by Customer to Revinate for periods during which Customer is unable to use the affected Services due to such Claim and terminate this Agreement. Notwithstanding the foregoing, Revinate will have no obligation under this Section or otherwise with respect to any infringement or misappropriation Claim based upon: (w) any unauthorized use or distribution of the Services by Customer or any of its users; (x) any use of the Services in combination with other products, software, or data not supplied by Revinate; (y) any modification of the Services by any person other than Revinate or its authorized contractors; or (z) any Third Party Content, or the collection, storage or provision of Third Party Content. This Section states Revinate’s entire liability, and Customer’s sole and exclusive remedy, for infringement and misappropriation claims and actions.
9.4 Settlement of Claims. Neither Customer nor Revinate may settle or compromise any Claim that requires the other party to pay any amount, or take any action, without the other party’s prior written consent.
10 Limitations of Liability
10.1 No Indirect Damages. Without limiting claims arising from Customer’s breach of Revinate’s intellectual property rights in the Services, in no event will Revinate or Customer be liable for any indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data, or other intangible losses that result from the use of, inability to use, or unavailability of the Services.
10.2 Direct Damages. Without limiting Customer’s obligation to pay fees for Services performed or claims arising from Customer’s breach of Revinate’s intellectual property rights in the Services, to the maximum extent permitted by applicable law, the aggregate liability of Revinate and Customer pursuant to this Agreement is limited to the fees paid or payable by Customer to Revinate within the preceding six months.
10.3 Multi Property Arrangements. If this Agreement is part of a multi-property arrangement. The foregoing terms form a single limit of liability among Revinate the Manager (if any) and all Customers that have entered Subscription Agreements pursuant to such arrangement, regardless of whether properties are identified on a single Service Order or multiple orders, and regardless of whether Service Orders are signed by a single Customer or multiple entities as described in Section 1.2. The existence of more than claim, or the same claim by Manager and multiple Customers will not increase the foregoing limits.
10.3 Multi Property Arrangements. These limitations of liability apply whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Revinate or Customer has been advised of the possibility of such damage. The foregoing limitations of liability will apply to the fullest extent permitted by law in the applicable jurisdiction.
11.1 Amendment. Revinate may amend this Agreement from time to time by posting an amended version at its website and providing Customer notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”). However, if Customer gives Revinate written notice of rejection of the amendment prior to the Proposed Amendment Date, this Agreement will continue under its original provisions, and the amendment will become effective at the start of the next term. Revinate reserves the right to modify, suspend, or discontinue the Services upon notice to Customer. Revinate shall not be liable should Revinate exercise its right to modify, suspend, or discontinue the Services. If, however, Revinate discontinues the Services, Revinate will refund to Customer any subscription fees Customer has prepaid for the period after which Revinate has discontinued the Services.
11.2 Notices. All notices must be in writing and sent to the other party’s address on the Service Order. Notices will be deemed delivered when: (a) verified by written receipt if sent by personal courier, overnight courier, or postal mail; or (b) confirmed or replied to by the recipient if sent by email.
11.3 Construction; Interpretation. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. Headings contained in this Agreement are for convenience of reference only and do not form part of this Agreement. A word importing the singular includes the plural and vice versa. Gendered pronouns are used for convenience and are intended to refer the masculine or feminine, as applicable. The word “including” shall be interpreted to mean “including without limitation”.
11.4 Severability. If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.
11.5 Integration; Amendment; Enforcement of Rights. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties hereto. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.
11.6 Assignment. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties hereto. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.
11.7 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California, United States of America, notwithstanding any choice of law rules of any jurisdiction that would cause the application of another jurisdiction’s laws or rules. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement must be brought in the federal or state courts in San Francisco County, California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts.
11.8 Attorney Fees. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorneys’ fees and expenses and court costs.
Attorney Fees. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorneys’ fees and expenses and court costs.