NO ACCESS TO EMERGENCY SERVICES
The Platform is not a replacement for your ordinary mobile or fixed line telephone. The Platform does not allow you to make emergency calls or send emergency messages to emergency services. You must make alternative communications arrangements to ensure that you can make emergency calls and send emergency messages if needed. You acknowledge and agree that: (i) GuestTouch is not required to offer access to emergency services under any applicable federal state or local law or regulation; (ii) it is your sole responsibility to ensure that you have access to traditional wireless (mobile) or fixed line telephone services that offer access to emergency services, and (iii) the Platform is not a replacement for your primary telephone and/ or messaging service(s).
THIRD-PARTY PLATFORM AND CONTENT
CONSENT TO ELECTRONIC COMMUNICATIONS
By using the Platform, you agree that GuestTouch may communicate with you electronically regarding your use of the Platform and that any notices, agreements, disclosures or other communications that GuestTouch sends to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify GuestTouch at firstname.lastname@example.org.
MODIFICATIONS AND INTERRUPTION TO THE PLATFORM
We reserve the right to modify or discontinue all or any portion of our Platform with or without notice to you. We will not be liable if we choose to exercise this right. You acknowledge and accept that we do not guarantee continuous, uninterrupted or secure access to our Platform, or that our Platform will be error free. You understand that usage of our Platform may be interfered with or adversely affected by numerous factors or circumstances outside of our control.
YOUR ACCESS TO THE PLATFORM
As a condition of your right to access and use our Platform, you represent that you are of legal age to enter into a binding contract and that you are not a person barred from accessing the Platform under the laws of the United States or any other country. GuestTouch reserves the right to terminate your access with or without reason at any time. YOU ARE ENTIRELY RESPONSIBLE FOR ALL ACTIVITIES CONDUCTED IN CONNECTION WITH THE USE OF THE PLATFORM ON YOUR DEVICE(S).
You agree to indemnify and hold the GuestTouch Parties harmless from any claim or demand, including reasonable attorney’s fees and costs, made by any third party due to or arising out of your posting of any content on our Platform, or other use of our Platform in a manner not permitted by these Terms, including without limitation your actual or alleged violation of these Terms, or infringement of a third party’s intellectual property or other rights by you or another user of our Platform using your computer, mobile device or account.
COPYRIGHT AND TRADEMARK INFORMATION
All content, copyrights and other intellectual property rights in the content available on our Platform, including without limitation design, text, graphics, interfaces, and the selection and arrangements thereof (collectively “Content”), are owned by GuestTouch or its Clients, with all rights reserved, or in some cases may be licensed to GuestTouch or its Clients by third parties. This Content is protected by the intellectual property rights of GuestTouch or those owners. All Content which qualifies for protection under U.S. Federal Copyright Law is subject to the exclusive jurisdiction of the Federal Court System, whether registered or unregistered. All trademarks displayed on our Platform are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of such parties. In addition, such use of trademarks or links to the websites of third parties is not intended to imply, directly or indirectly, that those third parties endorse or have any affiliation with GuestTouch.
PERMITTED USE OF THE CONTENT
Any use of Content on the Platform, including without limitation reproduction for purposes other than those noted herein, modification, distribution, replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of GuestTouch or as part of a Client agreement with GuestTouch, is strictly prohibited. With the exception of search engines, you agree that you will not use any robot, spider, or other automatic device, or manual process to monitor or copy our web pages or the Content contained therein without prior written permission of an authorized officer of GuestTouch. You may not make any use of Content owned by any third parties which is available on the Platform, without the express consent of those third parties.
PROVIDING FEEDBACK TO GuestTouch
We welcome your comments and feedback about our Platform. All information and materials submitted to GuestTouch through the Platform or otherwise, such as any comments, feedback, ideas, questions, designs, data or the like regarding or relating to the Platform or the business of GuestTouch (collectively, “Feedback”), will be considered NON-CONFIDENTIAL and NON-PROPRIETARY with regard to you, but GuestTouch reserves the right to treat any such Feedback as the confidential information of GuestTouch. By submitting Feedback to GuestTouch, you assign to the GuestTouch Parties, free of charge, all worldwide rights, title and interest in all copyrights and other intellectual property rights in such Feedback. The GuestTouch Parties will be entitled to use any Feedback you submit, and any ideas, concepts, know-how or techniques contained in any such Feedback, for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and services using such Feedback without restriction and without compensating you in any way. You are responsible for the information and other content contained in any Feedback you submit to us, including, without limitation, its truthfulness and accuracy.
COMPLIANCE WITH LAWS
You assume all knowledge of applicable law and you are responsible for compliance with any such laws. You may not use our Platform in any way that violates applicable state, federal, or international laws, regulations, relevant guidance, or other government requirements.
CHANGES TO THESE TERMS
We reserve the right, at any time, to modify, alter, or update these Terms without prior notice. You are encouraged to check this page regularly for changes to the Terms. Modifications will become effective immediately upon being posted to our Platform, without further notice to you. Your continued use of any of our Platform after such modifications are posted constitutes your acknowledgement and acceptance of such modifications, and you may not amend these Terms.
NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California users of our Platform are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platform of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445‑1254 or (800) 952‑5210.
If any provision of these Terms is determined by a court of law to be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent, and the invalid provision will be modified as necessary to make it valid and enforceable while as closely as possible reflecting the original intentions of GuestTouch.
You agree that these Terms and any other agreements referenced herein may be assigned by us, in our sole discretion, to a third party in the event of a merger or acquisition or otherwise. These Terms shall apply in addition to, and shall not be superseded by, any other written agreement between us in relation to your participation as a contributor to our Platform.
You agree and understand that these Terms together with any other applicable click-through agreements you may have entered into regarding our Platform, constitutes the entire agreement between you and GuestTouch regarding your use of the Platform, and that any other prior agreements between you and GuestTouch are superseded by these Terms.
Any failure by GuestTouch to exercise its rights under these Terms or to enforce the terms hereof will not constitute a waiver of those rights. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our Platform or relating to these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You may not engage in any of the following with regard to the Platform (including without limitation posting or transmitting content through the Platform):
Further, without our written consent, you may not:
Disclaimer of warranties and limitation of liability
To the fullest extent permitted by law, GuestTouch, its related entities, its service providers, its licensors, and its or their respective officers, directors, employees or agents (collectively the “company parties”) expressly disclaim all warranties of any kind, whether express, implied or statutory, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, related to our sites. You understand and agree that your use of our sites is at your sole risk. our sites and all content, products and services offered through the sites are provided on an “as is” and “as available” basis. The company parties are not responsible for the timeliness of delivery of content, any failures of delivery, erroneous deletion, or any loss or damage of any kind you claim was incurred as a result of the use of any sites. Under no circumstances, will any of the company parties be liable to you or to any person or entity claiming through you for any loss, injury, liability or damages arising out of or in connection with your access to, use of, inability to use, or reliance on any of our sites or any content, product or service provided to you through or in connection with any of our sites. This is a comprehensive limitation of liability that applies to all losses and damages of any kind whatsoever, whether direct or indirect, general, special, incidental, consequential, exemplary or otherwise, including without limitation, loss of data, goodwill, revenue or profits. this limitation of liability applies whether the alleged liability is based on contract, negligence, tort, strict liability or any other basis; even if any company party has been advised of or should have known of the possibility of such damages; and without regard to the success or effectiveness of other remedies. Iif any part of this limitation of liability is found to be invalid, illegal or unenforceable for any reason, then the aggregate liability of the company parties under such circumstances to you or any person or entity claiming through you for liabilities that otherwise would have been limited will not exceed one hundred U.S. dollars.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. accordingly, some of the above disclaimers of warranties and limitations of liability may not apply to you.
You acknowledge that you may have or may in the future have claims against us which you do not know or suspect to exist in your favor when you agreed to these terms and which if known, might materially affect your consent to these terms. you expressly waive all rights you may have under section 1542 of the California civil code, which states: a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. If this clause is held to be unenforceable in whole or in part in any jurisdiction due to relevant laws, then in no event shall our or the releasees’ total liability to you exceed $100.00. Nothing in this clause shall limit or exclude any liability for death or personal injury resulting from negligence.
Notification of claimed copyright infringement
In the event that you find content posted on our Platform which you believe to be an infringement of the copyright ownership or other intellectual property rights of your company or any third party, you are requested to immediately contact GuestTouch’s Copyright Agent as described below. To report any alleged infringement, please contact us in writing by providing a signed statement containing the following information pursuant to the Digital Millennium Copyright Act (“DMCA”): Your name, address, telephone number, and email address, and if you are acting on behalf of the owner of the intellectual property, the name of the owner; a statement, made under penalty of perjury, that you are the owner of the copyright or are authorized to act on behalf of the owner; a detailed description of the copyrighted work or other intellectual property that you claim has been infringed; if your claim is based on a registered work, the registration number, and the date of issuance of the registration; a description of the infringing material and the URL where such material is located on the Platform, or a description of where on our Platform you found such material; your written statement that you believe, in good faith, that the use of the work on our Platform has not been authorized by the true owner of the work, its agent, or as a matter of law; and a statement that all of the information you have provided is true.
Please send your notice of alleged infringement to us:
540 Howard St.
San Francisco, CA, 94105
E‑mail: email@example.com, subject line “DMCA Notice”
In accordance with the DMCA, it is the policy of GuestTouch to terminate use of our Platform by repeat infringers in appropriate circumstances.
Any content uploaded, posted, submitted, or otherwise made available by individual users of the Platform, including without limitation all messages, and any other content which does not originate with GuestTouch (“User Content”), is the sole responsibility of the person who made such User Content available on the Platform. Under no circumstances will GuestTouch be liable in any way for any User Content made available through this Platform by you or any third party.
Since GuestTouch does not control the User Content posted on the Platform, it does not guarantee the truthfulness, integrity, suitability, or quality of that User Content, and it does not endorse such User Content. You also agree and understand that by accessing the Platform, you may encounter content that you may consider to be objectionable. User Content is owned by the author thereof, and GuestTouch does not claim ownership of original works created and posted by individual visitors to this Platform. GuestTouch reserves the right (but has no obligation) in its sole discretion to pre-screen, edit, refuse, move or remove any User Content that is posted on the Platform. You agree that the exercise by GuestTouch of such discretion shall not convert or transform User Content to content owned or provided by GuestTouch, and the user who made such User Content available on the Platform will retain ownership thereof as described below.
As required by California Law, we permit minors under the age of 18 to request the deletion of any content or information that the minor has publicly posted on our Platform. To request the removal of content or information you have posted on our Platform, please send a letter or email to the address below with (i) your name, (ii) a complete description of the content you would like removed, and (iii) the web address(es) of the content you would like removed. Please be aware that our fulfillment of this request does not ensure complete or comprehensive removal of the content or information you have posted on our Platform.
Governing law; arbitration
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH GuestTouch AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM GuestTouch.
These Terms shall be governed by and construed in accordance with the laws of the State of California and the United States of America, without resort to any conflict of law provisions. In the event of any controversy or claim arising out of or relating in any way to these Terms or the Platform, you and GuestTouch agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, then either of the parties may, by notice to the other demand mediation under the mediation rules of the JAMS/Endispute (“JAMS”) in San Francisco, California. Both you and GuestTouch both give up the right to litigate disputes and may not proceed to arbitration without first trying meditation, but you and GuestTouch are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Whether the dispute is heard in arbitration or in court, you and GuestTouch will not commence against the other a class action, class arbitration or other representative action or proceeding.
If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of JAMS before a single arbitrator in San Francisco, California. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
For any disputes that are not handled by arbitration, you agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in San Francisco, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms or the use of the Platform.
If you have any questions about these Terms, please feel free to please contact us at:
540 Howard St.
San Francisco 94105
This Software as a Service Agreement, effective as of signed Service Agreement (the “Effective Date“), is by and between GuestTouch, a Delaware Corporation, with offices located at 540 Howard St. San Francisco, CA 94105 (“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:
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 GuestTouch, which can be reached at firstname.lastname@example.org or such other address as set out in this Agreement.
“Customer” means hotel management/owner, which can be reached at any such or other address as set out in this Agreement.
“Customer Service” means the customer service desk of GuestTouch, which can be reached at email@example.com or such other address as set out in this Agreement.
“Effective Date” means the date this Agreement is signed by the hotel management/owner.
“Extranet” means the GuestTouch dashboard which can be accessed by the hotel management/owner upon user-authentication at GuestTouch Dashboard to upload images, update property information, and access and/or modify reservations.
“Guest” means a person who has or is looking to book accommodations at the hotel.
“Hotel” means a place to stay, including, but not limited to the following lodging accommodations and/or dining facilities: motels, hotels, lodges, Hotels, bed and breakfasts, cabins, apartments, houses, or vacation rental properties.
“Hotel Management/Owner” means the Hotel’s owner/management, whether an individual or a business entity, on-site manager, or agent responsible for the day-to-day operations of the hotel.
“Intellectual Property Right” means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, 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.
“Next Generation Website (Powered by GuestTouch)” means an Hotel’s website which is hosted and managed by GuestTouch’s online Content and GuestTouch Digital Marketing System and may be supported by the GuestTouch WebChat, GuestTouch ADA Widget and other innovative products designed to elevate the hotel’s performance .
“Third Party (Transaction) Site” refers to a third-party website (i.e. Franchise, Online Travel Agent (OTA), Central Reservation System (CRS), or other booking enabled website) where hotel management/owners can make their rooms available for reservation, and through which Guests can book reservations at Hotel for overnight accommodations.
“Websites” means the website(s) of GuestTouch and its affiliated companies and business partners on which the product and service of GuestTouch are available including any Next Generation Website that is Powered by GuestTouch.
“Software Product” means any Software or Software that is provided by GuestTouch to the hotel management/owner or utilized in connection with its Software-as-a-Service offerings to its customers.
1.GuestTouch offers program called the Next Generation Reputation Management System also known as Reviews Solution and ReputationPRO as more fully described on GuestTouch’s website
(i) As part of the Reputation Management System, hotel management/owner agrees to provide access to GuestTouch to review site login credentials and permits GuestTouch to manage account on their behalf.
(ii) hotel management/owner acknowledges that the Reputation Management System/ReputationPRO may include responding to brand reviews and managing third party surveys such as Medalia
(iii) hotel management/owner acknowledges having reviewed this webpage and fully understands the services offered.
(iv) hotel management/owner acknowledges and agrees that GuestTouch is not responsible for negative reputation or any financial or material losses from reputation scores or management of reputation online.
(v) GuestTouch agrees to respond to reviews on agreed upon sites which may include TripAdvisor, Booking, Expedia, Google, brand surveys and more!
(vi) GuestTouch can respond to any review at any time on behalf of hotel management/owner with or without permission or review of response.
(vii) GuestTouch reserves the right to skip drafting responses to reviews if it is not in the best interest of hotel management/owner.
(viii) GuestTouch will attempt to contact hotel management/owner for context to any reviews it does not feel comfortable drafting a response, at its own discretion.
(ix) GuestTouch may reuse certain review responses or elements of such responses across any current or future hotel management/owners and thereby each response may not be entirely authentic.
(x) hotel management/owner acknowledges that specific services may change from time to time and that if the services change, GuestTouch will provide notification to hotel management/owner of such changes to services provided under the various packages.
(xi) GuestTouch reserves the right to use hotel management/owner name or certain personally identifiable data in responses.
(xii) GuestTouch will attempt to edit responses at the direction of client if permissible by EULA of review site.
(xiii) GuestTouch will abide by any provisions of EULA from Reviews Sites i.e. TripAdvisor, Google Reviews, OTAs as GuestTouch will be bound by their specific T&Cs.
(xiv) GuestTouch will use best practices to manage reputation and will do its best to honestly represent the client, but cannot guarantee accuracy and performance.
(xv) GuestTouch draft content is the Intellectual Property Right of GuestTouch
(xvi) While GuestTouch will make its best efforts to maintain accuracy and professional content writing, GuestTouch will not indemnify any parties or others from inaccuracy, omission, spelling/grammar mistakes etc. from content that is drafted.
(xvii) hotel management/owner can cancel the Reputation Management System at any time after the agreement period ends by giving 30 days advance written notice. It will be hotel management’s responsibility to track the responses and give notice to GuestTouch to pause responses- even beyond the product cancellation.
2.5 Subscription Payment & Remittance for Subscriptions Service
2.5.1 GuestTouch shall invoice the Hotel for the applicable subscription fee at the beginning of the defined subscription cycle
2.5.2 Invoices shall be processed as follows:
(i) GuestTouch shall process invoices yearly or as per the terms agreed upon and may send a Subscription Fee statement to the hotel management/owner via e-mail, if requested
(ii) The hotel management/owner shall pay the invoiced fees to GuestTouchwithin fifteen (15) calendar days from the invoice date/initiation or renewal date, if the payment details are on file, the payment shall be processed automatically. Customer can send the written request for cancellation 30 days prior to the next renewal
(iii) Payments shall be made by the hotel management/owner directly to GuestTouch by credit card, check, or ACH (Automated Clearing House) to GuestTouch, Inc.
(iv) The hotel management/owner shall bear all costs charged by its banking institution for the transfer of funds to GuestTouch.
2.5.3 In the event hotel management/owner is late with a Subscription payment, GuestTouch 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 hotel management/owner to restore its Website and/or other subscribed services.
2.5.4 In the event hotel management/owner delivers a check that bounces or conducts a chargeback on a valid credit card payment, GuestTouch reserves the right to retrieve any bank processing fees, including chargeback fees, in addition to the nominal Subscription payment due.
3.1 Hotel Information License
3.1.1 The hotel management/owner hereby grants GuestTouch 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 Hotel as provided to GuestTouch by the hotel management/owner pursuant to this Agreement and which are necessary for GuestTouch 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 Hotel Information.
(iii) GuestTouch may sublicense, make available, disclose and offer the Hotel Information, including the relevant Intellectual Property Rights of the Hotel, special offers made available by the Hotel 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 Guest Reviews, Guest Feedback and other Customer Data
3.2.1 GuestTouch may transmit or make available the communication, through webforms, contact us, and WebChat made by a Guest to the Hotel. This may 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 other details (collectively “Customer Data“) and such other specific request(s) made by the Guest.
3.2.2 Guests who have stayed at the Hotel may be asked by GuestTouch to comment on their stay at the Hotel and to provide a score for certain categories as determined by GuestTouch, in order to help hotel elevate its online reviews and collect internal feedback for hotel to act upon.
3.2.3 GuestTouch is the rightful owner of any and all Customer Data, Messaging communications and makes such data available at will to the hotel management/owner.
4.1 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.
4.2 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.
4.3 Term. This Agreement shall remain in effect until hotel management/owner provides a termination notice, as provided below.
4.4 Termination. The hotel management/owner can terminate this Agreement at any time. In the event hotel management/owner would like to terminate the subscription package selected below, the hotel management/owner shall provide GuestTouch with written notice of termination (“Termination Notice”), addressed to GuestTouch at its corporate office via mail,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 other Party’s rights and remedies with respect to an indemnification or a breach by the other, terminating, Party of this Agreement. Sections 5, 6, 7 and8 shall survive termination.
5.1 The Hotel represents and warrants to GuestTouch that for the term of this Agreement:
(i) The hotel management/owner has all necessary rights, power and authority to use, (sub)license and have GuestTouch make available on the Website the Intellectual Property Rights as set out or referred to in the Hotel Information made available on the Website;
(ii) The hotel management/owner holds and has all permits, licenses and other governmental authorizations necessary for conducting, carrying out and continuing its operations and business;
(iii) The hotel management/owner acknowledges they are solely responsible to complying with The Americans with Disabilities Act (ADA).
(iv) While GuestTouch endeavors to follow Web Content Accessibility Guidelines (WCAG) 2.1, GuestTouch specifically disclaims any guarantee that the products and/or services provided to Hotel are in compliance with The Americans with Disabilities Act (ADA) or any other accessibility laws that the Hotel is subject to.
(v) The parties hereto further acknowledge that services and products are provided ‘as-is’ and ‘as available’ and GuestTouch disclaims all warranties, express or implied, including but not limited to the implied warranty of merchantability and fitness for a particular purpose and non-infringement. In the event of a failure of the product or GuestTouchservices to hotel management/owner, GuestTouchwill attempt to resume services as quickly as possible with no additional charges to hotel management/owner.
(vi) GuestTouch 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) GuestTouch makes no warranties or guarantees regarding the accuracy on the Website or for performance of any services provided by or for social media channels of email marketing which is provided by hotel management/owner or for information generated by GuestTouch, which has been approved by the hotel management/owner.
6.1 IN NO EVENT SHALL GuestTouch 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 GuestTouchBE 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 GuestTouchHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. IN ADDITION, IN NO EVENT SHALL GuestTouchBE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. TO THE FULLEST EXTENT ALLOWABLE BY LAW, GuestTouch’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.
7.2 Customer, Licensee, and Sub-licensee Representations, Warranties, Disclaimers and Indemnification
(i) Customer, licensee, and sub-licensee hereby represents 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 agrees 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.
7.3 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, 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 misappropriates any copyright, United States patent, trade secret or any other proprietary right of any third party, provided Provider, 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-licensee’s 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 Provider, licensor and the exclusive remedy of the Customer, licensee, 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 affect.
8.1 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.
8.2 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.
8.3 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.
8.4 Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Data and to protect it from unauthorized use or release.
8.5 No Modifications, Reverse Engineering. You may not (a) modify, port, adapt or translate any portion of GuestTouch’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.
9.1 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 GuestTouch 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 Hotel.
9.2 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.
9.3 This Agreement including the appendixes which form an integral part of this Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, offers, undertakings or statements regarding such subject matter vis-à-vis the Hotel).
9.4 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 by 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.
9.5 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 in the discretion of the Arbitrator.
9.6 Parties agree and acknowledge that notwithstanding this Section, nothing in this Agreement shall prevent or limit GuestTouch, 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 Hotel is established or registered under the laws of the relevant jurisdiction where the Hotel is established or registered and for this purpose, the hotel management/owner waives its right to claim any other jurisdiction or applicable law to which they might have a right.
Notices pursuant to this Agreement shall be provided in writing via Certified Mail or e-mail as follows:
540 Howard St. San Francisco, CA 94105
For any inquiries, please contact us at firstname.lastname@example.org
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