This Terms and Conditions document forms a part of the Advertising Agreement to which it is attached and sets
forth terms and conditions relating to the provision and use of the Hotel Coupons LLC, d/b/a “Hotel Coupons”,
products and services ordered through the Advertising Agreement (the Advertising Agreement and this Terms and
Conditions document collectively constitute the “Agreement”). Any terms that are not defined in these Terms
and Conditions shall have the meanings given those terms under the Advertising Agreement. The Client, as identified
in the Advertising Agreement, represents that it has read these Terms and Conditions and agrees to be bound by them.
ORDERED PRODUCTS AND SERVICES.
- All products and services ordered by Client in the Advertising Agreement and/or any supplemental schedule and/or
addendum thereto are referred to herein collectively as the “Ordered Product(s)/Service(s)”. The Ordered
Products/Services may include (i) print and/or digital advertising (“Advertising”), (ii) the development,
hosting, maintenance and/or support of one or more websites (each, a “Client Website”) and/or (iii) the
provision of other products or services that may include, but are not necessarily limited to, reputation
management services, video product/hosting, call tracking/reporting services (some of which may constitute Third
Party Products, as defined below). Subject to Section 9 below, the Ordered Products/Services shall be provided
to Client by, and are ordered by Client from, Hotel Coupons for the term/contract period designated in the
Advertising Agreement for that product or service (the “Contract Period”).
- For each Ordered Product/Service, Hotel Coupons hereby grants Client a non-exclusive, non-transferable,
revocable, limited license during the applicable Contract Period to have its authorized users (as specified in
the Advertising Agreement) access and use that Ordered Product/Service and the related Hotel Coupons Proprietary
Materials (defined below) in connection with the operation of the hotelier or management group identified in the
Advertising Agreement. Any rights not expressly granted herein are deemed withheld. Except as expressly
permitted in this Section 1(b), Client may not use, reproduce, transfer, share, sublicense or transmit any Hotel
Coupons Proprietary Materials in any form or by any means without the prior written consent of Hotel Coupons,
and, without limiting the foregoing, Client is expressly prohibited from reselling, loaning or otherwise sharing
any Hotel Coupons Proprietary Materials or divulging any related Confidential Information (defined below).
Client further shall not directly or indirectly, and shall not permit or authorize a third party to, modify,
translate, transform, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine
source code from any Hotel Coupons Proprietary Materials.
- With respect to any Ordered Products/Services that include Advertising, Client expressly acknowledges and agrees
- Hotel Coupons shall, at Client’s request and direction, prepare advertising content for Client to be
inserted into one or more of Hotel Coupon’s printed and/or digital “Guides”. Such Guides may be in the form
of printed publications, Websites, mobile-accessible Websites, or mobile smartphone applications (apps) or
other products developed by Hotel Coupons and/or licensed as Third Party Products, and Hotel Coupons shall
then distribute such advertising Guides in locations and allotments and in manners at its sole discretion.
- All Advertising content submitted to Hotel Coupons for publication hereunder is subject to Hotel Coupon’s
approval in its sole discretion, and Hotel Coupons reserves the right in its sole discretion to reject or
cancel any Advertising at any time, with or without notice to Client, and the positioning within the Guides
(or any other media) of all Advertising is and shall be at the sole discretion of Hotel Coupons.
- Client shall return all Advertising proofs and any requested revisions to planned Advertising within the
time period reasonably directed by Hotel Coupons from time to time; otherwise, coupon expiration dates for
any such Advertising will be changed to coincide with the next publication period of the applicable Guide or
other publication medium. In addition, coupon rates for all Advertising shall remain the same for so long as
such Advertising is published/distributed hereunder unless otherwise specified by Client within the time
period specified in the Advertising Agreement. (Hotel Coupons requires that all coupons be available for
consumer use and be honored during the full distribution period for each applicable Guide or other
distribution medium). Client may change the text of any Advertising at no cost, no more than once per
- Hotel Coupons may also offer various products, services and/or other solutions that are provided by third
parties and interoperate with one or more Ordered Products/Services hereunder (collectively, “Third-Party
Products”), and Client agrees as follows with respect to any such Third-Party Products:
- Any use by Client of any Third-Party Products and any related implementation, customization and other
consulting services, and any exchange of data between Client and any provider of such Third-Party Products,
is solely between Client and the applicable third-party provider. Hotel Coupons does not warrant or support
any Third-Party Products, and Hotel Coupons hereby expressly disclaims any representations or warranties of
any type or nature whatsoever with respect to any Third-Party Products.
- In addition to and not in limitation of the foregoing, Client understands and agrees that (A) Client shall
look solely to the third-party vendor of the applicable Third-Party Products (and not to Hotel Coupons) for
maintenance and support, including but not limited to resolution of system errors, bugs, patches and fixes,
and (B) Client’s sole and exclusive rights and remedies with respect to any Third-Party Products, including
rights and remedies in the event any Third-Party Products give rise to an infringement claim, will be
against the third-party vendor and not against Hotel Coupons.
- During the Term hereof, Client shall not contract directly with any provider of Third-Party Products for any
products or services that are the same as or similar to the Covered Products/Services provided by Hotel
Coupons to Client under this Agreement.
- For each Ordered Product/Service, Client shall pay Hotel Coupons all fees designated in the Advertising
Agreement for that product or service, as the same may be hereafter modified, which may include one-time
“upfront fees” or set-up fees and costs (including, but not limited to, applicable travel costs) and/or
recurring “monthly fees” (collectively, the “Fees”).
- All Fees are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or
imposed for the provision of Ordered Products/Services, and Client shall be solely liable for and shall pay all
such taxes (except for any such taxes based on the net income of Hotel Coupons), regardless of whether included
on any invoice.
- Except to the extent that any such fees are payable in advance, Hotel Coupons will invoice Client for all Fees
on a periodic basis (which will be monthly in most cases), and all invoices are due upon receipt. If any Ordered
Products/Services are provided on a bundled basis, Hotel Coupons will begin invoicing for those Ordered
Products/Services when the first of those bundled Ordered Products/Services is deployed/activated. With respect
to any Ordered Product/Service that requires customization or Client input (e.g., Client Websites, etc.), the
parties expect the customization and/or activation to be completed by the beginning of the corresponding
Contract Period, but if the customization and/or activation is delayed through no fault of Hotel Coupons, Hotel
Coupons may begin invoicing for those services not later than the first day of such corresponding Contract
- Any invoice that remains unpaid thirty (30) days after the original invoice date shall be subject to interest on
any outstanding balance at a rate equal to the lesser of (i) 1.5% per month or (ii) the maximum rate permitted
by applicable law. If any outstanding Fees remain unpaid for thirty (30) (or more) days from the original
invoice date, Hotel Coupons may, without limiting any of its rights and remedies, suspend the provision of the
Ordered Products/Services in respect of which payment has not been received plus any or all other Ordered
Products/Services. The foregoing rights and remedies of Hotel Coupons shall not apply to any invoice, or portion
thereof, that is then subject to a good faith dispute between the parties, provided that all other invoices (or
portions thereof) not in dispute have been paid by Client in full. All returned checks will incur a charge of
$25 per incident on the account. If Ordered Products/Services are suspended for nonpayment and all outstanding
payments are received within 120 days of suspension date customers Ordered Products/Services may be reinstated
under the terms of this agreement.
- Hotel Coupons may modify any monthly Fees payable under this Agreement by giving Client at least ninety (90)
days’ prior written notice from time to time. Any such Fee modification shall not require an affirmative
response by Client or any further action by the parties; provided, however, if any such Fee modification will
result in an increase in the Fees that are payable in respect of an Ordered Product/Service, then, for a period
of thirty (30) days following receipt of notice of the increase, Client may cancel the applicable Ordered
Product/Service by giving Hotel Coupons written notice of cancellation. If Client does not timely cancel the
applicable Ordered Product/Service, then such Fee increase shall be effective (and binding on Client) as of the
date specified in Hotel Coupon’s initial notice thereof.
- Client acknowledges and agrees that (i) in order to transact business using various applicable Ordered
Products/Services, certain capabilities are required of Client’s computing and telecommunications equipment
(both hardware and software), (ii) Client is obligated to procure and install for its use, at its own expense,
all equipment and infrastructure (including wiring) that is necessary to access and otherwise receive the
benefit of the applicable Ordered Products/Services, and (iii) Hotel Coupons shall not be responsible or liable
if for any reason Client’s telecommunications and computing equipment is incompatible with or otherwise
insufficient for Client to utilize any applicable Ordered Products/Services.
- Client further acknowledges and agrees that (i) Hotel Coupons, in its discretion, may track, analyze and/or
create reports related to activity and/or results obtained in connection with Client’s use of the Ordered
Products/Services (including, without limitation, information from consumer actions or responses).
- Client represents, warrants and covenants that it is complying, and shall comply with all federal, state and
local laws, rules, regulations and ordinances applicable to this Agreement and its use of the Ordered
Products/Services, including all accompanying federal regulations. Client further warrants and covenants that it
shall comply with all policies and procedures in respect of the use of the Ordered Products/Services that Hotel
Coupons may provide to Client and similarly situated customers from time to time on an across-the-board basis,
including, without limitation, policies and procedures regarding (i) end user use of an Ordered Product/Service,
(ii) the requirements of third-party vendors utilized by Hotel Coupons in connection with the provision of
Third-Party Products included within the Ordered Products/Services to Client hereunder.
- Client acknowledges and agrees that, as between Client and Hotel Coupons, Client is solely responsible for all
products advertised via any Advertising hereunder (including but not limited to the pricing thereof) as well as
all messages, editorial content, advertising content (other than advertising content produced by Hotel Coupons
at Client’s request), music recordings, photographs, videos, artwork or other similar content that is displayed
on or distributed through any Advertising or any other product maintained or made available, in any media
(electronic or otherwise), through any Ordered Product/Service (such content, except to the extent it
incorporates any Hotel Coupons Proprietary Material, is collectively the “Client Content”). Without limiting the
foregoing, Client represents and warrants to Hotel Coupons that (i) Client owns the Client Content and/or (ii)
all licenses, rights and other permissions from third parties (including but not limited to ASCAP, BMI and the
Copyright Clearance Center) that are necessary to display or distribute the Client Content through the
applicable Ordered Products/Services shall be obtained (for the benefit of Client and Hotel Coupons) and fully
paid before such display and/or distribution commences and, further, shall thereafter be maintained in full
force and effect by Client for so long as such distribution continues hereunder. Client acknowledges and agrees
that Hotel Coupons has not undertaken, and will not undertake, any obligation to investigate or evaluate the
extent to which the display or distribution of any Client Content infringes upon or misappropriates any right of
any third party or is otherwise permissible.
- If any third party (including any governmental agency or authority) notifies Hotel Coupons that Client’s use of
any Ordered Product/Service violates or may violate any federal, state or local law or regulation, Hotel Coupons
may at any time thereafter on notice to Client suspend Client’s use of each applicable Ordered Product/Service
until Hotel Coupons receives reasonable assurance that Client’s use does not violate such law or regulation.
PROPRIETARY RIGHTS; LICENSE; RESTRICTIONS.
- As between the parties, Hotel Coupons shall own all right, title and interest in and to the Ordered
Products/Services and all Intellectual Property Rights (defined below) relating to the Ordered Products/Services
(and any derivative works or enhancements thereof), including, but not limited to, all associated software,
technology, materials, documentation, Brand Features (defined below), and any other text, audio, photo, video or
other creative work, whether in print or electronic form, developed by Hotel Coupons. Client shall not acquire
any right, title or interest in the Ordered Products/Services or the Hotel Coupons Proprietary Materials, except
for the limited use rights expressly set forth in this Agreement, and Client shall not take any action to
impair, limit or interfere in any manner with Hotel Coupon’s ownership or rights with respect to any Hotel
Coupons Proprietary Materials. Client further acknowledges and agrees that nothing herein shall be deemed or
construed to limit in any manner Hotel Coupon’s use of the Hotel Coupons Proprietary Materials. As used herein,
(i) “Intellectual Property Rights” shall mean any and all rights existing from time to time under patent law,
copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair
competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as
any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in
force and effect worldwide, (ii) “Brand Features” shall mean the trade names, trademarks, service marks, logos,
and other distinctive brand features of a party, as secured by such party from time to time.
- As between the parties, Client shall own all right, title and interest in and to the Client Content; provided,
Client hereby grants to Hotel Coupons a non-exclusive, worldwide, irrevocable, perpetual, royalty-free right and
license (with rights to sublicense) to, reproduce, use, prepare derivative works from, display and distribute
the Client Content as may be necessary or appropriate for Hotel Coupons to provide the Ordered Products/Services
(without limiting the foregoing, Hotel Coupons may share the Client Content with its affiliates and applicable
third-party vendors to the extent Hotel Coupons deems necessary or appropriate to provide the Ordered
- During the Term of this Agreement and for a period of three (3) years thereafter, each party (the “Receiving
Party”) shall retain in confidence the terms of this Agreement and all confidential or proprietary information,
technology, materials and know-how of the other party disclosed to or acquired by the Receiving Party pursuant
to or in connection with this Agreement that either is designated as confidential and/or proprietary or that
reasonably should be understood to be confidential and/or proprietary given the nature of the information and/or
the circumstances surrounding its disclosure (“Confidential Information”). (Without limiting the generality of
the foregoing, Client expressly acknowledges and agrees that the Hotel Coupons Proprietary Materials constitute
Hotel Coupon’s Confidential Information includes.) In connection with the foregoing, neither party shall use any
Confidential Information with respect to which it is the Receiving Party for any purpose other than to carry out
the activities permitted or contemplated hereunder (including, provision or use of the Ordered
Products/Services, as applicable), or to exercise or enforce its rights under this Agreement; each Receiving
Party shall use commercially reasonable efforts to protect the Confidential Information of the other party
against any unauthorized use or disclosure, and in any event shall take precautions at least commensurate with
those taken to protect its own Confidential Information of a similar nature; and each Receiving Party shall
notify the other party promptly in writing in the event such party learns of any unauthorized use or disclosure
of any Confidential Information that it has received from such other party, and will cooperate in good faith to
remedy such occurrence to the extent reasonably possible. The restrictions set forth in this Section 6 shall not
apply to any information that: (A) was known by the Receiving Party without obligation of confidentiality prior
to disclosure thereof by the other party; (B) was in or entered the public domain through no fault of the
Receiving Party; (C) is disclosed to the Receiving Party by a third party legally entitled to make such
disclosure without violation of any obligation of confidentiality; or (D) is independently developed by the
Receiving Party without use of or reference to any Confidential Information of the other party.
- If a Receiving Party is required to disclose Confidential Information of the other party pursuant to an order
from a court of competent jurisdiction or governmental agency with appropriate legal authority, the Receiving
Party shall (i) provide the disclosing party with prior notice of such compelled disclosure, (ii) provide
reasonable assistance, at the disclosing party’s cost and expense, if the disclosing party wishes to contest the
disclosure, and (iii) disclose only those portions of the Confidential Information as are necessary to comply
with the order.
- Upon request of the other party, each Receiving Party shall return to the other or destroy all materials, in any
medium, which contain or reveal all or any part of any Confidential Information of the other party.
DISCLAIMER; LIMITATIONS OF LIABILITY.
- EACH ORDERED PRODUCT/SERVICE AND ALL HOTEL COUPONS PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS.
EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, IF ANY, HOTEL COUPONS DOES NOT MAKE ANY
REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR
ANY HOTEL COUPONS PROPRIETARY MATERIAL, OR ANY THIRD-PARTY PRODUCTS, AND HOTEL COUPONS HEREBY SPECIFICALLY
DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES, THE OTHER HOTEL
COUPONS PROPRIETARY MATERIALS AND ANY THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF
QUALITY, ACCURACY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING ANYTHING IN THE FOREGOING,
(i) HOTEL COUPONS DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE ORDERED PRODUCTS/SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) HOTEL COUPONS DOES NOT
PROVIDE ANY WARRANTY AGAINST INFRINGEMENT OR INTERFERENCE WITH ENJOYMENT; (iii) CLIENT ACKNOWLEDGES THAT THE
OPERATION, USE OR PERFORMANCE OF THE ORDERED PRODUCTS/SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE
ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING INADVERTENT LOSS OR DISCLOSURE OF DATA OR DAMAGE TO MEDIA, WHICH
MAY GIVE RISE TO LOSS OR DAMAGE, AND CLIENT AGREES THAT HOTEL COUPONS SHALL NOT BE LIABLE IN ANY EVENT ON
ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES; AND (iv) CLIENT ACKNOWLEDGES AND AGREES THAT NO
STATEMENTS MADE IN ANY ADVERTISING MATERIALS OR ANY OTHER DOCUMENTATION (OTHER THAN STATEMENTS THAT ARE
EXPRESSLY SET FORTH IN THIS AGREEMENT) HAVE FORMED A PART OF THE PARTIES’ AGREEMENT OR UNDERSTANDING, AND CLIENT
IS NOT ENTITLED TO RELY ON SUCH STATEMENTS IN ADVERTISING OR OTHER DOCUMENTATION.
- IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CLIENT ACKNOWLEDGES AND
AGREES THAT (i) HOTEL COUPONS SHALL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INCIDENTAL,
CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING
OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDERED PRODUCT/SERVICE OR ANY HOTEL COUPONS PROPRIETARY MATERIAL,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HOTEL
COUPONS SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR REVENUE, INCLUDING, BUT NOT LIMITED TO, ANY SUCH LOSSES
INCURRED AS A RESULT OF LOSS OF USE OF ANY ORDERED PRODUCT/SERVICE OR ANY HOTEL COUPONS PROPRIETARY MATERIAL,
LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER
SIMILAR COSTS); AND (ii) HOTEL COUPON'S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED
PRODUCT/SERVICE OR HOTEL COUPON’S OBLIGATIONS UNDER THIS AGREEMENT RELATING THERETO, REGARDLESS OF THE FORM IN
WHICH ANY CLAIM MAY BE BROUGHT, SHALL NOT EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY CLIENT TO HOTEL
COUPONS UNDER THIS AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY
PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS.
- Client assumes sole responsibility for all use of the Ordered Products/Services, the Hotel Coupons Proprietary
Materials and all Third-Party Products. Furthermore, Client shall indemnify, defend and hold harmless Hotel
Coupons and its affiliates, and its and their respective officers, directors, employees, agents and
representatives (collectively, the “Indemnified Hotel Coupons Parties”), from and against any and all claims,
proceedings and demands asserted or alleged by third parties against an Indemnified Hotel Coupons Party
(“Claims”), and from and against any damages, costs, expenses and liabilities of any kind whatsoever (including,
without limitation, reasonable attorneys’ fees and costs) incurred in connection with any such Claims, arising
out of or in any way related to (i) Client's use of any of the Ordered Products/Services, (ii) any breach by
Client of any representations, warranties, covenants or other terms and conditions set forth in this Agreement,
(iii) Client’s violation of or failure to comply with any applicable law, rule or regulation, or (iv) any
allegation that any Client Content, whether as displayed on any product or otherwise, (A) infringes (directly or
in a contributory manner), violates or misappropriates any copyright, patent, trademark or service mark or any
other Intellectual Property Right of a third party, (B) violates any right of publicity or privacy of any third
party or (C) constitutes unlawful use, disclosure or misappropriation of a third party’s trade secret or
otherwise constitutes unfair competition under applicable law.
- In the event that use of the Ordered Products/Services (excluding any Client Content displayed thereon) or other
Hotel Coupons Proprietary Materials becomes, or in Hotel Coupon’s sole discretion is likely to become, the
subject of any Claim of infringement by any third party, then Hotel Coupons may at its option and expense either
(i) use commercially reasonable efforts to procure for Client the right to continue to use the applicable
Ordered Product(s)/Service(s) or Hotel Coupons Proprietary Materials as provided in this Agreement, or (ii) use
commercially reasonable efforts to replace or modify the applicable Ordered Product(s)/Service(s) or Hotel
Coupons Proprietary Materials with a version that is non-infringing but that performs substantially similar
functions. In the event that neither of the foregoing options is commercially viable in the sole judgment of
Hotel Coupons, then Hotel Coupons may cancel its provision to Client of the applicable Ordered
Product(s)/Service(s) or Hotel Coupons Proprietary Materials and refund to Client any Fees pre-paid by Client
with respect thereto.
TERM AND TERMINATION.
- This Agreement shall commence on the date that the initial Advertising Agreement is signed by an authorized
Manager of Hotel Coupons and shall remain in effect until terminated in accordance with this Agreement (the
period that this Agreement is so in effect, the “Term”).
- Each Advertising Agreement specifies an initial term/contract period (defined above as the Contract Period) for
each Ordered Product/Service. After the initial Contract Period for any Ordered Product/Service expires, the
Contract Period for such Ordered Product/Service shall, except as provided below, automatically renew for
successive terms that are equal in length to the initial Contract Period, unless a party gives the other party
written notice of its intent not to renew this Agreement for the applicable Ordered Products/Services not less
than (i) ninety (90) days prior to the applicable renewal date, with respect to Ordered Products/Services that
consist of print Advertising services, or (ii) sixty (60) days prior to the applicable renewal date, with
respect to all other Ordered Products/Services, in which case this Agreement shall terminate effective as of the
last day of the calendar month following the expiration of the applicable notice period (for instance, if notice
of non-renewal for Ordered Products/Services consisting of print Advertising services is delivered on March 24,
the effective date of termination would be June 30).
- The cancellation of one Contract Period shall not, in and of itself, cause the cancellation of any other
Contract Period unless the cancellation is effected as a result of a breach and the non-breaching party
expressly elects, in its sole discretion, to exercise its termination right under Section 9(d). This Agreement
shall automatically terminate if for a period of ninety (90) consecutive days there is no Contract Period in
effect for the provision of any Ordered Product/Service (e.g., all renewals have been cancelled).
- Client, on the one hand, or Hotel Coupons, on the other hand, may terminate this Agreement at any time by
written notice to the other party if (i) the other party materially breaches this Agreement and the breach
remains uncured for a period of thirty (30) days after notice of breach from the non-breaching party, or (ii)
the other party ceases to do business in the normal course, a petition for relief under any bankruptcy
legislation is filed by or against the other party, the other party makes an assignment for the benefit of
creditors, or a receiver is appointed for all or substantially all of the other party’s assets. In addition to
and not in limitation of the foregoing, Hotel Coupons may terminate this Agreement (including any and all active
Advertising Agreements) immediately upon written notice to Client in the event that Client, or any of its
employees, agents or other representatives, engages in any conduct that Hotel Coupons in its reasonable
discretion deems offensive, inappropriate or otherwise inconsistent with Hotel Coupon’s standards of conduct,
including, but not limited to, use of abusive, insulting or derogatory language with any Hotel Coupons
- Following termination of this Agreement for any reason, all rights and licenses granted herein shall terminate
and Client shall immediately cease use of all Ordered Products/Services (including by discontinuing use of all
Hotel Coupons Proprietary Materials) and certify to Hotel Coupons that it has destroyed all copies of all
applicable Hotel Coupons Proprietary Materials. Notwithstanding the foregoing, termination of this Agreement
shall not limit either party from pursuing any remedies available to it at the time of or in connection with
such termination, nor shall such termination release Client from its obligation to satisfy all payment
obligations under this Agreement. Sections 2, 5, 6, 7, 8, 9(e), 10 and 11 shall survive any termination or
expiration of this Agreement.
GOVERNING LAW; DISPUTE RESOLUTION.
The parties hereby expressly (i) agree that their respective rights and obligations shall be determined by the terms
of this Agreement and (ii) waive and opt out of any application of the Uniform Computer Information Transactions
Act, or any version thereof, adopted in any State in any form to the maximum extent permitted by applicable law.
This Agreement will be construed in accordance with and governed by the laws of the state of Florida (subject to
clause (ii) in the preceding sentence), without regard to principles of conflicts of law. Each party irrevocably
consents to the exclusive jurisdiction and venue of any local, state or federal court that is located in Broward
county, FL in connection with any dispute, claim or controversy arising out of or relating to this Agreement, and
waives any objections in the nature of jurisdiction or venue. In any action or other proceeding by which Client’s
account is referred to an attorney or collection agency for collection, Client will pay for all collection fees,
costs and expenses incurred by Hotel Coupons in connection therewith. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING
OUT OF OR RELATING TO THIS AGREEMENT.
- Independent Contractors. The relationship of the parties hereunder is that of independent
contractors. Neither Hotel Coupons, on the one hand, nor Client, on the other hand, has or will have any power
to bind the other or to create any obligation on behalf of the other, nor shall it represent that it has any
- Promotional Matters. Hotel Coupons may issue press releases and other marketing and promotional
material describing the relationship created by this Agreement and, among other things, displaying websites or
products, developed for or provided to Client as examples of the service offerings available from Hotel Coupons.
Client hereby grants Hotel Coupons the right to use Client's name, trademarks, service marks and logos (i) in
advertising targeted to all or any portion of Client’s customer base in connection with the performance of the
Ordered Products/Services hereunder, and (ii) in any advertising and publicity identifying Client as a customer
of Hotel Coupons.
- Notices. All notices and other communications to each party must be in writing and sent to the
applicable address specified in the Advertising Agreement, with any such notices to Hotel Coupons to be sent
care of General Manager, Hotel Coupons. Unless otherwise agreed, notice shall be deemed given upon (i) receipt
when delivered personally, (ii) written verification of receipt from overnight courier, (iii) verification of
receipt of registered or certified mail, or (iv) verification of receipt via facsimile.
- Force Majeure. No party shall be deemed to be in default or otherwise liable for any delays or
failure in performance of its obligations under this Agreement (other than its obligation to pay any monies owed
hereunder, which shall not be excused) resulting directly or indirectly from any cause or circumstances beyond
its reasonable control, including but not limited to acts of God or nature, war or warlike conditions,
terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor
shortages, sabotage, shortages in fuel, transportation facilities or materials, or failures of equipment,
Internet, telecommunications facilities or third party software programs.
- Severability; Waiver. If any term or condition hereof is found or ruled to be invalid or
unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be
enforceable to the maximum extent permitted by law. The failure of either party to enforce any provision of this
Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a
- Remedies. Except as otherwise expressly set forth in this Agreement, a party’s remedies set
forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity,
none of which shall be deemed as waived by virtue of a party’s exercise of any other remedy. Each party
acknowledges that any unauthorized use or disclosure of the other party’s Confidential Information would cause
the other party irreparable harm that may not be adequately compensated by monetary damages; accordingly, in
addition to any other remedies available to it at law or in equity, each party will be entitled to injunctive or
other equitable relief to prevent any actual or threatened unauthorized use or disclosure of its Confidential
- Amendment; Assignment; Continuing Obligation. Except to the extent otherwise expressly provided
herein (such as, by way of example, in the case of Fee increases by Hotel Coupons), this Agreement may not be
amended or otherwise modified except by a writing signed by both parties. Client may not assign or otherwise
transfer this Agreement or any of its rights or obligations hereunder to any other person or entity without the
express prior written consent of Hotel Coupons. In addition, and notwithstanding anything to the contrary set
forth in this Agreement, if another person, business or entity becomes the “Client” under this Agreement,
whether by way of a permitted assignment hereof, change of ownership of the original/current Client hereunder,
or any other means or mechanism whatsoever, then following such assignment, ownership change or other
means/mechanism the original/current Client shall nonetheless be and remain responsible for both (i) all
obligations incurred by the original/current Client hereunder prior to such change and (ii) any and all
obligations (including but not limited to payment of all Fees) incurred by any such new “Client” subsequent to
- Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the
parties do not intend to create, and do not and shall not be deemed to create, any third party beneficiary
- Entire Agreement. This Agreement constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all prior agreements and
understandings, written or oral, with respect thereto.
[END OF TERMS & CONDITIONS – UPDATED APRIL 2022]