WHEREAS, NHD has developed a proprietary mobile booking application (the “App”)for the collection and dissemination of hotel property Booking Information and Reservation Information offered publicly on NHD’s Internet and Mobile websites and the Application; and
WHEREAS, the App provides a booking system making rate information and inventory control available to assist in reservation bookings from online customers providing last minute hotel rooms reservations through the App; and
WHEREAS, NHD is in the commerce of aiding the booking of hotel rooms by offering guests the ability to make reservations for last minute accommodations for hotel properties through its App based upon rate and inventories collected by the Hotel relevant to their property using NHD’s distribution channel;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations of the parties herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1. Basic Obligations of the Parties. Subject to the terms and conditions provided for herein, during the Term, Hotel hereby engages NHD, and NHD hereby accepts engagement by Hotel to provide reservation booking on a non-exclusive basis. NHD will utilize the App as a distribution channel to make last minute reservation bookings and forward Reservation Information back to Hotel.
1.1 Compensation from Hotel Company. In exchange for NHD’s provision of services described herein, Hotel shall pay a 10% commission on all rooms booked through NHD’s App based on the rate provided in the hotel inventory portal. NHD is responsible for collecting payment from the guest, including all commissions, applicable government tax rates, occupancy tax rates, and transaction user fees which are deducted from the gross sale prior to funding the Hotel’s check.
1.2 Funding Merchants Account. All revenues collected and due Hotel shall be collected through a third-party payment processing agent.
2. Room Rates, Inventory Control & Listing Content. Hotelier will provide Non-Smoking guestrooms that shall accommodate at least two (2) adult guests for one (1) night. Hotel shall make rates available to NHD that do not exceed Hotel’s current retail rates advertised online or in any other digital offers. Rates shall not exceed $99.00 per room, per night. Hotel may change rates and inventory through NHD’s hotel portal at any time. Management of rates and inventory control is the sole responsibility of Hotel. Booking times for guests are available from 11:00AM to 2:00 AM daily.
2.1 NHD will inform guests at the time of booking that the reservation is not eligible for any Hotel sponsored guest loyalty programs, special reward programs, or additional discounts offered at the hotel level.
2.2 If rate and inventory is not provided by Hotel, NHD reserves the right to remove the Hotel’s listing from the NHD App or show the Hotel’s listing as having no rooms available.
2.3 Hotel’s property content including photos, room descriptions, hotel amenities, services, dining, accessibility features, and directions shall be provided to NHD through NHD’s listing portal. Hotel will be provided with an account username and password that is unique to Hotel.
2.4 Hotel may update rates and inventory by logging into Hotel’s account on NHD’s listing portal. Hotel will be required to offer an auto-rate and inventory service with a minimum inventory of three (3) rooms and best available rate each day that will automatically reset each day at 10:00AM EST. All rate and inventory is closed off to guests each day at 2:00AM EST and re-opens to guests at 11:00AM EST. Between 10:00AM EST and 11:00AM EST Hotelier will be able to make necessary changes to block out or change rate offers and inventory. Hotel can access the Listing Portal online or through the App. Rates and inventory can be changed anytime up to 30 days out from daily inventory reset.
2.5 Reservation Notifications. NHD will notify Hotel by fax, email or SMS phone for each confirmed reservation.
2.6 NHD will inform guest at time of booking of Non-Cancelation Policy and Non-Refundable policy. Acknowledgement by Guest will be required during the booking process before final sale is completed.
2.7 Overselling. In the event a hotel oversells and has to walk a guest the hotel is responsible for relocating and transportation to a hotel with equal or considerable accommodations and within close proximity. Overselling is defined as not having the reserved accommodation purchased at the time of guest’s arrival requiring the guest to be relocated to another location. Hotelier will be required to secure transportation if needed and to pay all associated costs for transporting guest to alternative location.
2.8 Hotel shall not walk guests booked through NHD with any greater frequency than guests booked directly with Hotelier or through other reservation channels utilized by Hotel.
3. License Grant. Subject to the terms and conditions set forth in this Agreement, including but not limited to the usage requirements, NHD hereby grants to Hotel a non-exclusive, non-transferable, revocable, and limited license to use NHD’s App (the “License”) and the Licensed Materials.
3.1 General Restrictions and Limitations. The Agreement sets forth the entirety of Hotel’s right to use NHD’s App. Without limiting the generality of the foregoing, Hotel shall not directly or indirectly: (a) replicate or attempt to replicate; (b) modify, or create any derivative work based upon the App; (c) grant any sublicense or other rights to or rent or lease: (1) any of the Licensed Materials; or, (2) this Agreement; (d) authorize any other Person to grant any sublicense with respect to any Licensed Materials; (e) reverse engineer, disassemble or decompile any of the Software or attempt to discover or recreate the source code to any Software; (f) remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the Licensed Materials; (g) modify, translate or merge the Software with any other software or engage in or permit any Unauthorized Use; or (h) upload or otherwise use software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of the Software, any hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information.
4. Use of NHD’s App.
4.1 Delivery. All Licensed Materials shall be made available by NHD, as soon as practicable after the execution of this Agreement.
4.2 Software Customization. NHD may, in NHD’s sole discretion and from time to time, provide certain Enhancements for the purpose of improving or customizing the App to Hotel’s business.
4.3 Other Services. Although NHD may, in its sole discretion, elect to provide technical support service to Hotel in facilitation of this Agreement from time to time, NHD shall not have any obligation to provide support services to Hotel, except as otherwise stated in this Agreement.
4.4 Special Liability Waiver: Safe Transmission and Storage of Data. HOTEL HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLD NHD AND ITS AFFILIATES, SUBSIDIARIES, THIRD PARTY SUPPLIERS AND DISTRIBUTORS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS, RECOVERIES, LOSSES, DAMAGES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES OF ANY KIND OR NATURE INCLUDING BUT NOT LIMITED TO REASONABLE LEGAL AND ACCOUNTING FEES, BROUGHT BY THIRD PARTIES REGARDING HOTEL’S COLLECTION, TRANSMISSION, STORAGE, SAFEGUARDING, AND RETENTION OF ALL INFORMATION RELATED TO HOTEL’S USE OF THE SOFTWARE, WHETHER SUCH INFORMATION IS FINANCIAL, PERSONAL, OR OTHERWISE.
4.5 Personally Identifiable Information; Special Liability Waiver. Hotel shall comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction, with regard to privacy policies, disclosures, warnings, and any and all necessary requests for permission to share personally identifiable information gathered by Hotel and stored or accessed via the Software with parties other than Hotel for storage, use, and resale. HOTEL HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLDS NHD AND ITS AFFILIATES, SUBSIDIARIES, THIRD PARTY SUPPLIERS AND DISTRIBUTORS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS, RECOVERIES, LOSSES, DAMAGES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES OF ANY KIND OR NATURE INCLUDING BUT NOT LIMITED TO REASONABLE LEGAL AND ACCOUNTING FEES, BROUGHT BY THIRD PARTIES RELATED TO NHD’S RETRIEVAL, USE, AND RESALE OF ANY AND ALL PERSONALLY IDENTIFIABLE INFORMATION COLLECTED BY HOTEL, WHICH IS SUBSEQUENTLY RETRIEVED BY NHD VIA THE SOFTWARE, WHETHER USED OR SOLD TO THIRD PARTIES BY NHD.
4.6 Compliance with Laws. Hotel shall comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction, including, without limitation, the U.S. Export Administration Act, regulations of the U.S. Department of Commerce and other export controls and regulations of the United States of America. Hotel shall not export or otherwise transmit any Licensed Materials, directly or indirectly.
5. Copyright & Proprietary Rights.
5.1 Ownership of Licensed Materials. Hotel acknowledges and agrees that the Licensed Materials delivered or disclosed to Hotel in connection with this Agreement constitute the valuable property of NHD, and that NHD has all right, title and interest (and all Proprietary Rights) in and to all such Licensed Materials. No title to or ownership of any Licensed Materials, or any Proprietary Rights associated therewith, is transferred to Hotel or any other Person under this Agreement. Without limiting the generality of the foregoing, NHD reserves all of its Proprietary Rights in the Licensed Materials under all applicable laws for the protection of proprietary information including, but not limited to, laws relating to copyrights, patents, trade secrets and trademarks.
5.2 Copyright Notices. Hotel shall preserve intact and shall include all appropriate notices setting forth NHD’s Proprietary Rights in any copy or other reproduction of the Licensed Materials made by Hotel in accordance with the License.
5.3 Additional Protection of Proprietary Rights. Hotel shall not infringe or violate, and shall take appropriate steps and precautions for the protection of, NHD’s Proprietary Rights in the Licensed Materials. Without limiting the generality of the foregoing, Hotel shall: (a) prevent any Unauthorized Use; (b) not make any Licensed Materials available to any Third Party without the prior written consent of NHD; and (c) otherwise use its best efforts to prevent any Unauthorized Use of the Licensed Materials. Hotel, upon notice of any Unauthorized Use of the Licensed Materials, shall immediately notify NHD of such Unauthorized Use. In the event of any Unauthorized Use relating to the activities of Hotel or any of its employees, agents, or representatives of any such entity, Hotel shall take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of Licensed Materials in the possession or control of the person or entity engaging in such Unauthorized Use. Hotel shall immediately notify NHD of any legal proceeding initiated by Hotel in connection with any such Unauthorized Use. NHD may, at its option and expense, assume control of such proceeding. If NHD assumes such control, NHD will have exclusive control over the prosecution and settlement of the proceeding, and Hotel Company shall provide such assistance related to such proceeding as NHD may reasonably request. Hotel shall assist NHD in enforcing any settlement or order made in connection with such proceeding.
6. Warranty, Limitation of Liability, Indemnity, and Remedies.
6.1 Disclaimer of Warranties. NHD DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, COMPLETENESS, OR USEFULNESS WITH RESPECT TO THE SERVICES, THE APP, OR THE SOFTWARE OR ANY INFORMATION CONTAINED THEREIN.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NHD DISCLAIMS, AND HOTEL HEREBY EXPRESSLY WAIVES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NHD DOES NOT WARRANT THAT THE SERVICES, THE APP, THE SOFTWARE, ITS SERVERS, OR COMMUNICATIONS SENT FROM NHD ARE FREE OF DEFECTS, MALWARE, OR OTHER HARMFUL COMPONENTS.
THE APP IS PROVIDED “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.” NHD SHALL NOT BE RESPONSIBLE FOR ERRORS OR OMISSIONS CONTAINED IN SERVICES OR THE SOFTWARE. HOTEL EXPRESSLY AGREES THAT USE OF THE SERVICES, THE APP, THE SOFTWARE, AND HOTEL’S RELIANCE ON THE INFORMATION CONTAINED THEREIN IS AT HOTEL’S SOLE RISK. NHD DOES NOT WARRANT THAT THE SERVICES, THE APP, OR THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS AND INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON, THROUGH, OR IN SUPPORT OF THE SERVICES, THE APP, OR THE SOFTWARE. HOTEL ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING, BUT NOT LIMITED TO: LOSS OF DATA, LOSS OF BUSINESS, AND PHYSICAL DAMAGE TO HOTEL’S SYSTEMS RESULTING FROM USE OF THE SERVICES, THE APP, OR THE SOFTWARE. NHD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, THE APP, OR THE SOFTWARE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED IN THE BOOKING APPLICATION SOFTWARE AND SUPPORTING DOCUMENTATION.
6.2 Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall NHD be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business revenue or profits, business interruption, loss of business data or information, loss of use of the system(s) or any other pecuniary loss) arising out of NHD’s provision of services or Hotel’s use or inability to use the App, even if NHD has been advised of the possibility of such damages or such damages could reasonably have been foreseen by NHD. This shall constitute NHD’s sole liability and obligation in the event of any claim arising out of its performance or non-performance of any provisions of this Agreement. Furthermore, in no event shall NHD be liable for errors, delays, or non-performance due to any events beyond its reasonable control, including, but not limited to, acts of God, failure of power or communication, changes in laws or regulations or other acts of governmental authority, strike, weather conditions, or transportation. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitations may not apply to Hotel.
6.3 Hotel Company’s Remedies. NHD shall use commercially reasonable efforts to correct any noncompliant service provided that Hotel gives NHD written notice of the noncompliance within thirty (30) days after the date of this Agreement.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD NHD AND ITS AFFILIATES, SUBSIDIARIES, THIRD PARTY SUPPLIERS AND DISTRIBUTORS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS, RECOVERIES, LOSSES, DAMAGES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES OF ANY KIND OR NATURE INCLUDING BUT NOT LIMITED TO REASONABLE LEGAL AND ACCOUNTING FEES,BROUGHT BY OR ON YOUR BEHALF IN EXCESS OF THE LIABILITY DESCRIBED HEREIN OR BY THIRD PARTY AS A RESULT OF YOUR USE OF THE APP.
7. Term and Termination.
7.1 Term. The term of this Agreement, including the Term of the License hereunder, will commence upon the date of this Agreement and shall continue until terminated according to the provisions of this Agreement (the “Term”).
7.2 Termination by Mutual Agreement. This Agreement may be terminated at any time by mutual written agreement between the parties.
7.3 Unilateral Termination. This Agreement may be terminated by either party upon sixty (60) days prior written notice to the non-terminating party.
7.4 Termination for Failure to Pay. NHD may terminate this Agreement effective immediately, in NHD’s sole discretion, upon delivery of written notice to Hotel if Hotel fails to pay any amount due and owing to NHD when due. HOTEL HEREBY INDEMNIFIES, AGREES TO DEFEND, AND HOLDS NHD HARMLESS AGAINST ALL CLAIMS RELATED TO NHD’S TERMINATION OF THIS AGREEMENT OR RESULTING FROM HOTEL BEING BLOCKED FROM USING THE BOOKING APPLICATION SOFTWARE, ACCORDING TO THE PROVISIONS OF THIS AGREEMENT.
7.4.1 Notice of Termination. If the Defaulting Party fails to cure any material breach or default specified in any notice under Section 7 within thirty (30) days after receipt of such notice (or such later date as may be specified in the notice), then the terminating party may terminate this Agreement by giving the Defaulting Party written notice of termination.
7.5 Termination by NHD for Cause. This Agreement also may be terminated immediately by NHD upon the occurrence of any of the following:
7.5.1 If Hotel fails to comply with any applicable laws or regulations.
7.5.2 If (i) a receiver, trustee or liquidator is appointed for Hotel, (ii) Hotel files a voluntary petition in bankruptcy, (iii) Hotel makes a general assignment for the benefit of creditors, (iv) Hotel files a petition seeking a reorganization or arrangement with creditors, or (v) the entry by a court of competent jurisdiction of any order, judgment or decree adjudicating Hotel as bankrupt or approving a petition seeking reorganization of Hotel or approving the appointment of a receiver, trustee or liquidator of Hotel, or of all or a substantial part of the assets of Hotel, and any such action or proceeding described in clauses (i) through (v) above is not dismissed within sixty (60) days of the date of filing.
7.6 Effect of Termination. If this Agreement is terminated pursuant to and in accordance with this Section 7, then, unless otherwise specifically provided for in writing by the Parties, the following will apply: (a) the Parties will cooperate to effect an orderly, efficient, effective and expeditious termination of each Party’s respective activities under this Agreement; (b) the License and any other right granted to Hotel with respect to any Licensed Materials will terminate effective as of the effective date of the termination; (c) Hotel will cease use of the Licensed Materials as of the effective date of termination
8. Commissions, Fees, Payment Terms and Conditions.
8.1 Commissions. NHD shall charge a 10% commission of gross rentals excluding taxes on all rooms booked through NHD’s App based on the Rate provided in the Hotel Inventory Portal. The Software will determine the sum of the hotel commissions booked on behalf of Hotel via the App daily.
8.2 Fees, no fees shall be charged to the Hotel for completing a reservation. Additional services shall be offered to Hotel for consideration of purchase to include hotel videos, GEO fencing, Top of Page listings, Banner Ads and multi-page locations listings.
8.3 Commission Payments are earned by NHD upon the booking of any reservation. NHD will collect commissions and user fees prior to funding Hotel’s check payment. All checks will be mailed directly to the hotel property at the end of each month. A $5.00 fee will be charged if a hotel makes additional requests for payment.
8.4 Fees for Additional Services. Any additional services requested by Hotel or Enhancements to the booking application Software other than those described above, including but not limited to technical support and customization, shall be subject to payment upon receipt of service.
8.5 Late Charges; Interest. Any fees, charges or other amounts due to NHD under this Agreement that are not paid when due will be subject to finance charges of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such finance charges will not excuse or cure Hotel’s breach or default for late payment. Further, Hotel will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by NHD in its attempt to collect any amount that is not paid when due, whether in litigation or otherwise. NHD may accept any check or other payment in any amount without prejudice to NHD’s right to recover the balance of the amount due or to pursue any other right or remedy.
8.6 Taxes. The fees and other amounts payable to NHD under this Agreement do not include any duties, taxes, fees or other amounts assessed or imposed by any governmental authority. Hotel is solely responsible for and shall directly pay or, upon demand by NHD, shall reimburse NHD for any and all such amounts paid by NHD, or shall provide to NHD certificates or other evidence of tax exemption. Upon request by NHD, Hotel shall pay to NHD an amount equal to all such taxes imposed by any governmental authority, in which case, NHD will remit all such taxes to the appropriate governmental authority.
9. Miscellaneous Provisions.
9.1 Entire Agreement. This Agreement represents the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements, understandings and communications, whether oral or written.
9.2 Governing Law; Venue. This Agreement shall be governed by and construed and enforced in accordance with the internal substantive laws of the State of Tennessee, without regard to its principles of conflict of laws. The parties expressly agree that jurisdiction and venue for any actions concerning the enforcement, construction or interpretation of this Agreement shall be exclusively in the Chancery Court or Circuit Court for Knox County, Tennessee or the United States District Court for the Eastern District of Tennessee. Each party expressly submits and consents to the jurisdiction of such courts and waives any objection that it may have to any action or proceedings brought in such court and any claim that such action or proceeding brought in such court has been brought in an inconvenient forum. Process in any such action or proceeding may be served anywhere in the world.
9.3 Assignment. Hotel shall not assign or otherwise transfer or purport to assign or otherwise transfer (voluntarily, involuntarily, by operation of law or otherwise) this Agreement or any of its rights or obligations hereunder or any part thereof without the prior written consent of NHD, which consent may be unreasonably withheld.
9.4 Notices. Any notice required or permitted to be given pursuant to the provisions of this Agreement shall be in writing and shall be deemed to have been given when (a) personally delivered, (b) delivered to an E-mail account, as listed herein, or (c) deposited with the United States Postal Service, registered or certified, postage prepaid. In each case such notice shall be delivered or addressed according to the following:
If to NHD:
Internet Marketing Expert Group
305 Elm Street
Sevierville, TN 37862
Attention: Justin Jones
With a copy to
IMEG Attorney of record.
If to Hotel Company:
9.5 Remedies; Equitable & Injunctive Relief. In the event of any breach of or default under this Agreement by one party, the other party may suffer irreparable harm and have no adequate remedy at law. In the event of any such breach or default, or any threat of such breach or default, the non-breaching party will be entitled to injunctive relief, specific performance and other equitable relief, without the necessity of showing actual damages or posting a bond or other security. Further, in any legal action or other proceeding in connection with this Agreement (e.g., to recover damages or other relief), the prevailing Party will be entitled to recover, in addition to any other relief to which it may be entitled, its reasonable attorneys’ fees and other costs incurred in that action or proceeding. The rights and remedies of the parties under this Section are in addition to, and not in lieu of, any other right or remedy afforded to the parties under any other provision of this Agreement, by law or otherwise.
9.6 Severability. Each provision of this Agreement is intended to be severable, and the invalidity, illegality or unenforceability of any provision hereof for any reason shall not affect or impair the operation or effect of those portions hereof not invalid, illegal or unenforceable.
9.7 Enforceability. The intent of the parties is that this Agreement be enforceable and enforced to the maximum extent possible after excising (or deeming excised) all invalid or unenforceable provisions, whether or not the remaining provisions are grammatically correct.
9.8 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all Parties had signed the same instrument. All executed counterparts shall constitute a single agreement.
9.9 Amendments; No Waiver. No provision of this Agreement may be amended, modified, revoked or waived except by a writing signed by a duly-authorized representative of each of the parties hereto. Failure by either party to require performance by the other, or to claim a breach of this Agreement, will not waive any right accruing under this Agreement, nor will it affect any subsequent breach hereof, limit the effectiveness of any provision of this Agreement, or prejudice either party in any subsequent action to enforce strict compliance with this Agreement as to such breach or any subsequent breach.
10. Definitions. Whenever used in this Agreement, the following terms have the following specified meanings:
10.1 “Booking Information” means information necessary to advertise hotel properties for booking, including without limitation, dates for which the hotel property is available, location of hotel property, available check in times, available check out times, rates, and fees.
10.2 “Computer” means a single central processing unit (CPU) and its associated devices and components.
10.3 “Defaulting Party” means a Party that has committed a material breach or default in the performance of any of its obligations under this Agreement or any Supplement.
10.4 “Documentation” means the user manuals, technical manuals, operating and service manuals, specifications, hardware configurations, operating environment, receipt of payment of any fees, and any other documentation relating to any Software furnished by NHD to Hotel under this Agreement or any Supplement.
10.5 “Enhancement” means any correction, modification, enhancement, improvement, update, upgrade or new release of any Software.
10.6 “Hosting Site,” plural “Hosting Sites,” means an entity that hosts one or more websites related to the advertisement of hotel property and is under an online information services agreement with NHD.
10.7 “License” means the license granted to Hotel under Section 3.
10.8 “Licensed Materials” means the Software and any Documentation or other information provided by NHD to Hotel pursuant to this Agreement.
10.9 “Person” means a corporation, limited liability company, partnership, trust, governmental agency or organization, natural person or other legal entity.
10.10 “Property Manager,” plural “Hotelier,” means an entity that owns or manages hotel property and is under an online information services agreement with NHD.
10.11 “Proprietary Rights” means any patent, copyright, trademark, trade secret or other intellectual property right protected under the laws of the United States of America or any state of the United States of America.
10.12 “Hotel Furnished Items” means the software, hardware, networks, peripheral devices and other items required for the successful use of the Software, but not furnished to Hotel by NHD.
10.13 “Software” means those components of the NHD software system licensed for use by Hotel under this Agreement. The Software includes, but is not limited to, the following: (a) the modules, programs and other parts of the Software, and (b) any Enhancement to the Software. The Software does not include source code in any form, and Hotel Company acknowledges that Hotel has no right to receive any source code.
10.14 “Supplement” means a written supplement entered into by the parties at or after the date of this Agreement that identifies: (a) any additional Licensed Materials or Documentation to be subject to this Agreement, and (b) the license fees, charges or other compensation to be paid by Hotel for such additional Licensed Materials or Documentation.
10.15 “Systems” means the computer system(s), server(s) and associated peripherals and software in the possession and control of Hotel, all of which are Hotel Furnished Items.
10.16 “Term” means the period described in Section 7 hereof.
10.17 “Reservation Information” means information required by a Hosting Site or Hotel for the reservation of a hotel property, including without limitation, guest(s)’ first name, guest(s)’ last name, check in time, check out time, phone number, and property name.
10.18 “Third Party” means any Person other than NHD or Hotel.
10.19 “Unauthorized Use” means any use, reproduction, distribution, disposition, corruption, possession, disclosure or other activity involving any Licensed Materials, Documentation that is not expressly authorized under the License, this Agreement, or otherwise in writing by NHD.
IN WITNESS WHEREOF, the parties have executed this Agreement, to be effective as of the date first written above.
INTERNET MARKETING EXPERT GROUP, INC.____________________________________