CUSTOMER TERMS OF SERVICE
These Lodgistics Customer Terms of Service (these “Terms”) are agreed to between Lodgistics, LLC a North Carolina limited liability company, with offices located at 4242 Six Forks Rd #1600, Raleigh, NC 27609 (“Lodgistics”, “we” or “us”) and the party set forth on the applicable Order Form (“Customer,” with Lodgistics, the “Parties”).
WHEREAS, Lodgistics provides (a) a software platform and related products and services to enable cloud-based hotel operations (collectively, the “Platform Services”), as more detailed in individual Order Forms, in each case on the terms and conditions set forth herein.
NOW THEREFORE, BY EXECUTING AN ORDER FORM WITH THE LODGISTICS THAT REFERENCES THESE TERMS, FOR GOOD AND VALUABLE CONSIDERATION, CUSTOMER AND LODGISTICS AGREE TO BE BOUND BY THESE TERMS AND THE APPLICABLE ORDER FORM(S) (COLLECTIVELY, THE “AGREEMENT”), AS OF THE EFFECTIVE DATE SET FORTH ON THE APPLICABLE ORDER FORM.
1) Scope. Lodgistics grants to Customer a limited, non-exclusive, non-transferable right to permit its Authorized Users (as defined herein) to access and use Platform Services identified in each Order Form, solely for Customer’s own business purposes in accordance with this Agreement. Lodgistics will provide Platform Services during the Term via the Internet and/or mobile networks, as per the applicable Order Form.
“Authorized Users” means those employees, agents and independent contractors of Customer who are authorized by Customer to use the Platform Services. In addition, Customer’s end user guests may be able to access elements of the Platform Services, such as messaging and other communications, in which case, such end users would also be Authorized Users, with limited rights to access the Platform Services in the capacity provided. This Agreement grants Customer only the right to use the Platform Services as set forth herein, and does not convey or transfer title or ownership of the Platform Services, any underlying technology or software, or any intellectual property rights in any of the foregoing to Customer. Customer is responsible and liable for its Authorized Users’ compliance with and/or breach of the terms of the Agreement. All rights not expressly granted herein are reserved by Lodgistics, and no other licenses are granted herein by Lodgistics by implication, estoppel or otherwise.
“Fees” means the “Service Fees” and, if applicable, any “Professional Services Fees”.
2.2) Documentation. Customer may print, copy and internally distribute program documentation, user manuals, product technical manuals and other information (either provided by Lodgistics or made available by Lodgistics online) describing the operation and use of the Platform Services if and as available (the “Documentation”), for its internal business purposes only; provided, that Customer replicates all copyright and other proprietary rights notices contained in the original copy of the Documentation. Any Documentation and any copies made are the property and Confidential Information of Lodgistics.
2.3) Restrictions. The Platform Services and any other materials provided by Lodgistics to Customer constitute protected copyrighted material and valuable trade secrets of Lodgistics. Accordingly, Customer will not: (i) authorize or permit use of the Platform Services or Documentation by persons other than its Authorized Users; (ii) sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the Platform Services; (iii) use or access the Platform Services for the purpose of building a competitive product; (iv) copy, frame, modify or create any derivative works of the Platform Services (or any component, part, feature, function, user interface, or graphic thereof) or Documentation, except with the prior written consent of Lodgistics or to the extent such restriction is prohibited by applicable law; (v) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Platform Services is compiled or interpreted; (vi) use the Platform Services as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or Platform offerings; (vii) perform or disclose any benchmark or performance tests of the Platform Services without Lodgistics’ prior written consent; (viii) perform or disclose any security testing of the Platform Services or associated infrastructure without Lodgistics’ prior written consent including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; (ix) remove or modify any program markings or any notice of Lodgistics’s or its licensors’ proprietary rights; (x) use the Platform Services in violation of applicable laws; (xi) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (xii) send or store malicious code in connection with the Platform Services; (xiii) interfere with or disrupt performance of the Platform Services or the data contained therein; (xiv) attempt to gain access to the Platform Services or its related systems or networks in a manner not set forth in the applicable Documentation; or (xv) cause or permit any Authorized Users or any other party to do any of the foregoing.
2.4) Passwords. Lodgistics will provide Customer with credentials required to enable Customer’s Authorized Users with access to the Platform Services. Customer is solely responsible for maintaining the security and confidentiality of its Authorized User’s login information and credentials for its subscription to the Platform Services, and is responsible for any use of the Platform Services utilizing such information and credentials. To the extent that login credentials and passwords are assigned on a named user basis, they may not be shared by multiple individuals, provided that, upon written notification to Lodgistics, Customer may reassign credentials to new named Authorized Users. In all other cases, Customer will otherwise limit access to the Platform Service to its Authorized Users. Customer may not (i) permit login password codes to be cached in proxy servers and accessed by individuals who are not Authorized Users, or (ii) permit access to the Platform Services through a single identification or password code being made available to multiple users on a network.
2.5) Customer Responsible for Providing Connectivity and Equipment. Customer is responsible for providing its Authorized Users with an internet connection as well as currently-supported browsers, mobile devices, routers, and any other necessary equipment or hardware needed to access the Platform Services.
2.6) Maintenance and Support. Lodgistics will provide Customer support as further detailed on the Lodgistics’ site and support materials. Lodgistics will use commercially reasonable efforts to correct reported errors or failures that impair Authorized Users’ access to the Platform Services on a reasonably prompt basis that corresponds to the severity of the issue.
3) Professional Services and other Add-Ons.
3.1. Professional Services. If applicable, Lodgistics will provide any professional services (“Professional Services”) as set forth in the Order Form. For clarity, Lodgistics is not obligated to provide any Professional Services or to render any maintenance or support services that are not expressly provided for in an Order Form, including but not limited to, training, data conversion, program modification or enhancements. To the extent that Professional Services are included on any Order Form, they will become governed by these Terms and all references to Platform Services shall include Professional Services; provided that additional terms may be applicable to such Professional Services, if set forth on the applicable Order Form.
3.2. Additional Features. An “Add-On” is an optional Platform Service feature that we may make available for an additional fee or otherwise subject to additional terms, in each case, that will be communicated by Lodgistics and agreed to by Customer. Future Add-Ons may include integrations to Third Party Services (as defined herein), or premium features or services. Where Add-Ons are subject to additional terms, Customer’s use of such Add-Ons will indicate its agreement to become bound by such additional terms, which will otherwise generally fall under the terms of this Agreement.
4) Data; Results; Use of Marks and Name.
4.1) Customer Data. As between Customer and Lodgistics, Customer owns all right, title, and interest to the specific data and information about the Customer, it’s hotel(s), and its employees submitted, processed, or stored by Customer and Authorized Users using the Platform Services (the “Customer Data”). Customer is solely responsible for the accuracy and quality of the Customer Data. The Parties agree that under no circumstances will Lodgistics be responsible or have any liability for Customer’s or an Authorized User’s use of the Customer Data. Customer and each Authorized User are responsible for updating its own Customer Data. Customer hereby grants to Lodgistics a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable license to use, copy, reproduce, adapt, combine with other data, edit and re-format, generate, store, disclose, distribute, maintain a database of, and make derivative works based upon, any and all Customer Data exchanged under this Agreement to improve the Platform Services.
4.2) Results. Lodgistics owns all the information, data, documents and any other output results generated by queries, data feeds, and any use of and access to the Platform Services by Customer (collectively “Results”) to provide and improve the Platform Services, and owns all de-identified, aggregated forms of Customer Data and/or Results as part of Lodgistics’ services offerings to Customer and other Customers. Lodgistics will have no responsibility for any decisions made on the basis of Results or for completeness or accuracy of the Results or for their usefulness for Customer’s purposes.
5) Security. Each Party will maintain commercially reasonable administrative, physical and technical safeguards designed to help protect the security of its internal networks from malicious activity and to provide for the privacy, confidentiality and integrity thereof. Neither Party is liable for breaches of security caused by the other Party’s (or in the case of Customer, an Authorized User’s) failure to secure its networks or any access information, including login credentials and passwords. Customer will ensure that Customer will not introduce any malicious software into the Platform Services or which, upon the occurrence of a certain event, the passage of time, or the taking of or failure to take any action, would cause Platform Services to be destroyed, damaged, or rendered inoperable.
6) Data Protection; Compliance with Privacy Policy; Required Consents.
6.1) Compliance with Laws and Lodgistics’ Privacy Policy. Customer will ensure that its use of the Platform Services will be consistent with the Lodgistics privacy policy, which is available at https://www.lodgistics.com/privacy-policy and is incorporated herein by reference, as well as with Customer’s own stated privacy policies and all applicable law.
6.2) Required Consents. In order to carry out its responsibilities under this Agreement, Lodgistics may need access to, or Customer may provide access to, software, databases, materials, products, hardware, Customer Data and Customer trademarks, trade names, service marks, logos and other similar indicia of origin (collectively “Customer-Provided Materials”). Customer represents and warrants to Lodgistics that is has obtained all consents, authorizations or permissions necessary for Lodgistics to access each item of Customer-Provided Materials (including without limitation any consumer consent required to provide the Platform Services specified herein) as well as any consent required for communications with individuals (collectively “Required Consents”). Customer is responsible for determining the appropriate disclosures and level of consent required under the law as it is related to its business. Any costs to Customer that are associated with its carrying out these responsibilities are not included in the fees and will be the responsibility of Customer. Customer hereby grants Lodgistics a non-exclusive, worldwide, royalty-free, paid-up, transferable and sub-licensable license in and to the Customer-Provided Materials for purposes of providing the Platform Services hereunder.
6.3) CCPA. To the extent applicable to a Party, each Party represents and warrants that it complies and will continue to comply in all respects with the California Consumer Privacy Act of 2018, as amended (codified at Cal. Civ. Code § 1798.100, et seq.) (the “CCPA”) and all regulations and judicial opinions issued related thereto. With regard to Personal Information (as defined under the CCPA) Lodgistics possesses or controls in connection with the Platform Services provided by it to Customer, Lodgistics understands and agrees that it will not (i) sell (as defined under the CCPA) such Personal Information or (ii) retain, use, or disclose such Personal Information except as permitted under the terms and conditions of this Agreement by and between Customer and Lodgistics.
7) Term and Termination.
7.1) Term of Agreement; Order Form Renewals. This Agreement will begin on the Effective Date and then continue for the period set forth in the last active Order Form (the “Term”). Unless expressly stated otherwise on any Order Form, each Order Form (and correspondingly, the Term of this Agreement), will automatically renew for additional Terms of equal length (to the previously expiring Term), unless one Party provides written notice to the other at least 30 days prior to its expiration (on an individual basis, for each active Order Form) of its intention not to renew such Order Form(s).
7.2) Termination.
7.2.1) Termination for Breach. This Agreement may be terminated by either Party, subject to the Dispute Resolution procedures in Section 15.10: (i) for the other Party’s material breach of its obligations under this Agreement, but only if such breach is not cured within 30 days of the breaching Party’s receipt of written notice of the breach that described the breach in reasonably sufficient detail; (ii) delay in payment or nonpayment of fees that lasts more than 30 days from the date such payment was due; or (iii) actions or omissions of a Party that subject the other Party to actual or potential civil or criminal liability. Additionally, Lodgistics may terminate this Agreement for any misuse of the Platform Services by Customer, including unlawful use, or any violations of Lodgistics’ privacy policy or of the restrictions set forth in Section 2.3.
7.2.2) Termination for Insolvency. A Party may terminate the Agreement without prior notice to the other if: (i) the other Party commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws; (ii) anyone commences an involuntary case against the other Party under title 11 of the United States Code or the corresponding provisions of any successor laws and either (A) the case is not dismissed by midnight at the end of the 60th day after commencement or (B) the court before which the case is pending issues an order for relief or similar order approving the case; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy law; (iv) the other Party discontinues its business; (v) a receiver is appointed for the other Party or its business; or (vi) the other Party fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.
7.2.3) Effect of Termination. Upon the termination or expiration of this Agreement (the “Termination Date”), the rights and licenses, except where otherwise provided (e.g., Section 15.2 below), that were granted to each Party under this Agreement will cease. Except for a termination of this Agreement for Lodgistics’ uncured breach, Customer will make payment to Lodgistics for all unpaid Platform Services up to the Termination Date, within 30 days of Customer’s receipt of Lodgistics’ invoice. Upon written request following a termination, each Party will return to the other all originals and copies of all Confidential Information that has been exchanged hereunder, except as specifically provided herein, provided that Lodgistics may retain copies of Confidential Information as required by its document retention policy and applicable law, provided that the terms of this Agreement will continue to apply to such Confidential Information until it is returned or destroyed. Following termination of this Agreement, and except as provided herein, Lodgistics will remove, delete and/or destroy any Customer Data remaining on the Platform Services or on Lodgistics’ servers. If Customer wishes to receive any other termination or transition services from Lodgistics after the Termination Date, the parties may enter into an additional Order Form specifically for such services at Lodgistics’ then-current rates.
7.3) Suspension of Service. Lodgistics reserves the right, in its reasonable discretion, to suspend or terminate access to the Platform Services by Customer if Lodgistics reasonably believes that Customer’s use of the Platform Services may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Lodgistics to civil or criminal liability, or otherwise threatens the Platform Services, or data therein provided that such right will not obligate Lodgistics to monitor or exert editorial control over Customer’s use of the Platform Service. Lodgistics and Customer will cooperate to expeditiously determine the solution to the issue causing Lodgistics’ suspension of Platform Service. In order for Lodgistics to exercise its rights pursuant to this Section 7.3, Lodgistics must deliver to Customer written notice promptly after the allegedly violating representation or use is brought first to its attention and Customer must be given a reasonable period in which to remedy the alleged violation. Once the violation is remedied, Lodgistics will restore access to the Platform Service.
8) Fees.
8.1) Fee Terms. Customer will pay to Lodgistics the applicable fees set forth in the Order Form (“Fees”) within 30 days from its date of receipt of the applicable invoice.
8.2) Payment Options and Credit Card Surcharge. Payment for Fees may be remitted by the methods set forth on the applicable Order Form, which may include but not be limited to credit card, ACH or any other automated means that we may offer (“Automatic Payment”). If you select to pay Fees via credit card, we automatically will add an additional 3% surcharge to your Fees. Payment via ACH, will not be subject to any additional charge. If Automatic Payment is selected, your Fees will automatically be deducted via the method that you select. From time to time, we may notify you of additional Automatic Payment options. In all cases, for credit cards or any other payment provider that we may later accept (a “Payment Provider”), your Payment Provider agreement, and not these Terms, will govern your use of the Payment Provider’s designated account. We also use a Third Party Service to process such Fees. By providing your payment information for any Automatic Payment, you agree that we may invoice you for all fees and charges when they become due to us without additional notice or consent and agree to keep such payment information up to date.
8.3 Late Payment. Past due balances are subject to interest equal to the lower of 1 ½% per month or the maximum rate allowed by law. Lodgistics may, at its discretion, engage third parties to assist in the collection of past due accounts. Customer will be liable to Lodgistics for all reasonable costs of third party collection activity, including attorneys’ fees, resulting from Customer’s past due account. In addition, we may restrict or remove access to the Solutions until such invoices are paid in full if Customer has not paid invoices within 60 days.
8.4) Expenses and Other Charges. Customer will reimburse Lodgistics for all pre-approved expenses incurred in the performance of the Platform Services (“Expenses”). Upon request, Lodgistics will provide reasonable back-up documenting the Expenses. Expenses will be invoiced by Lodgistics and such invoices will be payable in accordance with Section 8.1.
8.5) Taxes. Customer will be responsible for any taxes, including but not limited to federal, state and local sales, use, excise, ad valorem, value-added, taxes on royalties, withholding taxes, and/or any other taxes and duties (“Taxes”) imposed on the purchases, use, license, and/or provision of Platform Services, exclusive of any taxes on Lodgistics’ income. Lodgistics will use commercially reasonable efforts to include any applicable Taxes on invoices. If Taxes are not included on invoices, Customer has a duty to self-report and will indemnify Lodgistics should any Taxes go unreported or unpaid to a taxing jurisdiction. If Customer produces supporting documentation certified by state authority authorizing Customer to pay such Taxes directly, then Lodgistics will gross up and add such amounts to the fees and withhold from including such Taxes on invoices. It is agreed that each Party will be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its income and receipts.
9) Lodgistics Property.
9.1) Generally. Lodgistics owns all right, title and interest in and to (i) the Platform Services (and any and all developments, modifications, and derivative works of the Platform Services), (ii) any improvements, modifications, suggestions, work product, concepts, inventions, information, drawings, designs, programs, or software (whether developed by Lodgistics, Customer, either alone or with others, and whether completed or in-progress) created as part of the Professional Services and/or to any extent related to the Platform Services, (iii) any materials provided by Lodgistics to Customer or a User with respect to the Platform Services, including but not limited to any Documentation, software (whether in object code or source code form), proprietary data, or other proprietary information developed or provided by Lodgistics or its suppliers, such as text, graphics (including the underlying web-presentation code of the Platform Services), logos, button icons, images and any non-public know-how, methodologies, equipment, or processes used by Lodgistics to provide the Platform Services to Customer, and (iv) all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively “Lodgistics Property”). This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Lodgistics Property are transferred to Customer under this Agreement. Lodgistics reserves all rights not expressly granted by this Agreement and no licenses are granted by Lodgistics to any party, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
9.2) Grant of License. Lodgistics hereby grants to Customer a limited, non-exclusive, non-transferable license to use Lodgistics Property developed as part of the Professional Services for that entity’s use of the Platform Services and solely for purposes of the using of the Platform Services in accordance with the terms of this Agreement during the Term. Any Lodgistics Property related to Platform Services will be deemed to constitute part of the Platform Services and will be subject to all terms and provisions set forth in this Agreement or otherwise applicable to the Platform Services, including terms and provisions related to use rights and restrictions, ownership and distribution of the Platform Services.
9.3) Assignment. To the extent that Customer or any User owns any copyright, patent, trade secret, or any proprietary rights in and to the Lodgistics Property, Customer hereby assigns to Lodgistics, its successors and assigns, and Customer will cause all Authorized Users to assign to Lodgistics, its successors and assigns, all right, title and interest in and to the Lodgistics Property, including, but not limited to, all rights in and to any inventions, designs and intellectual property rights embodied in the Lodgistics Property. Customer will execute, and cause any User to execute, any documents in connection with such assignment that Lodgistics may reasonably request. Customer appoints Lodgistics as its attorney-in-fact to execute assignments of, and register all rights to, the Lodgistics Property and the intellectual property rights in the Lodgistics Property. This appointment is coupled with an interest. Customer will enter into agreements with its Authorized Users or any other party as necessary to establish Lodgistics’ sole ownership in Lodgistics Property, and upon Lodgistics’ request, Customer will provide Lodgistics with copies of such agreements.
Customer grants Lodgistics a worldwide, perpetual, irrevocable, royalty-free right and license to use any ideas, recommendations or other input provided by Customer or its Users about the Platform Services to Lodgistics without restriction subject to maintaining the confidentiality of the Customer.
10) Confidentiality. A party receiving Confidential Information (“Recipient”) may not disclose Confidential Information except to its employees and agents with a need to know and who are bound by confidentiality agreements as restrictive as this Section 10. “Confidential Information” (a) means all information disclosed during the Term to Recipient by the party disclosing Confidential Information (“Discloser”) in any manner, whether orally or in tangible form or whether created by Discloser or Recipient, but if in tangible form it is marked as “confidential information” or would be considered to be confidential by a reasonable person, (b) but does not mean information that (i) was in Recipient’s possession prior to disclosure by Discloser prior to the Effective Date, (ii) is in the public domain and is generally known, (iii) has come into possession of Recipient by a third party that is not under any confidentiality obligation with Discloser, or (iv) was developed by Recipient independently and without reference to the Confidential Information. This Agreement and Lodgistics Property are Confidential Information.
11) Additional Representations and Warranties. Customer represents and warrants that: (i) it has the power and authority to enter into and perform its obligations under this Agreement; (ii) the Customer Data and Customer-Provided Materials (a) do not and will not infringe or misappropriate the intellectual property rights of any third party, (b) do not and will not violate any applicable law, statute, ordinance, regulation or treaty, (c) will not be defamatory, libelous, unlawfully threatening or harassing, (d) will not be obscene or indecent, and (e) will not contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information of any person or entity, and (iii) that it will comply with all applicable laws, regulations, policies, and rules including those relating to data privacy, consumer protection, marketing, promotion, text messaging, chat bot, email, direct mail, and other communications or otherwise applicable to its use of the Platform Services.
12) Disclaimer of Warranties EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, THE PLATFORM SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND LODGISTICS SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT LODGISTICS, ITS LICENSORS AND THEIR SUPPLIERS MAKE NO WARRANTY THAT THE PLATFORM SERVICES WILL MEET CUSTOMER REQUIREMENTS OR BE ERROR-FREE OR WITHOUT INTERRUPTION; THAT ALL ERRORS WILL BE CORRECTED; THAT THE PLATFORM SERVICES WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK; OR THAT CUSTOMER SPECIFIC REQUIREMENTS WILL BE SATISFIED. CUSTOMER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE PLATFORM SERVICES.
13) Indemnification. Customer will indemnify, defend and hold Lodgistics, its owners, officers, employees, agents, successors and assigns harmless from and against any and all third-party claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including attorneys’ fees) arising from claims by a Authorized User, Customer guest or any third party that (i) relate to a use of the Results; (ii) are based on or caused by unauthorized access to the Platform Services using a Customer password or account obtained from Customer or a User; (iii) result from any failure to obtain any Required Consent; (iv) the Customer Data, Customer-Provided Materials or other materials provided Customer or a User, or Lodgistics’ use thereof in connection with this Agreement, infringes or misappropriates the intellectual property rights of such third party; (v) are caused by Customer’s or an Authorized User’s gross negligence or willful misconduct or otherwise arise out of the Customer’s business and are not the fault of Lodgistics or the Platform Service.
Customer (the “Indemnifying Party”) will be notified in writing by Lodgistics (the “Indemnified Party”) of any such claim or demand (provided that the Indemnifying Party will only be relieved of its obligations if and to the extent that it has been actually prejudiced by the Indemnified Party’s failure to give notice as required); (ii) the Indemnifying Party will have sole control of the defense of any action or such claim or demand and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires any admission of liability, affirmative obligation or any contribution from the Indemnified Party must be expressly approved in advance in writing by the Indemnified Party; and (iii) the Indemnified Party will use all commercially reasonable efforts to cooperate with the Indemnifying Party in a reasonable way and at the Indemnifying Party’s expense to facilitate the settlement or defense of such claim or demand. The Indemnified Party may, at its expense and option, use counsel of its choosing in connection with the defense of any such claim.
14) Limitations on Damages.
14.1) DISCLAIMER OF CERTAIN DAMAGES. EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER, THE INDEMNIFICATION OBLIGATIONS IN SECTION 13 OR CUSTOMER’S BREACH OF SECTION OR 2.3 OR MISAPPROPRIATION OF LODGISTICS’ INTELLECTUAL PROPERTY RIGHTS, NEITHER LODGISTICS NOR CUSTOMER WILL HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES. FOR THE AVOIDANCE OF DOUBT, LODGISTICS HAS NO LIABILITY UNDER THIS AGREEMENT (A) RELATED TO ANY THIRD-PARTY SERVICES, OR (B) FOR ANY CLAIM BY ANY THIRD PARTY CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES). THESE LIMITATIONS IN THIS SECTION 14.1 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
14.2) LIMITATION OF LIABILITY. EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER, THE INDEMNIFICATION OBLIGATIONS IN SECTION 13, OR CUSTOMER’S BREACH OF SECTION 2.3 OR MISAPPROPRIATION OF LODGISTICS’ INTELLECTUAL PROPERTY RIGHTS, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION BROUGHT UNDER OR ASSOCIATED WITH THIS AGREEMENT (INCLUDING THE COVID RESPONSE PRODUCT) WILL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO LODGISTICS FOR THE MOST RECENT ONE YEAR PERIOD OF THE AGREEMENT UP TO THE DATE SUCH LIABILITY AROSE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), AND STRICT LIABILITY. THESE LIMITATIONS IN THIS SECTION 14.2 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
14.3) Third-Party Services. There may be certain services provided as part of the Platform Services or facilitated via the Platform Services that are provided by third parties and/or we may link to or offer third-party Services on our site or via the Platform Services (“Third-Party Services”). For example, SMS and other communications capabilities are provided by telecommunications providers and communications platforms. Lodgistics does not warrant, endorse or support Third-Party Services and is not responsible or liable for such Services or any losses or issues that result as your use of such services. If You purchase, enable or engage any Third-Party Service for use in connection with the Platform Services, you acknowledge that we may allow providers of those Third-Party Services to access your data as required for the interoperation of such Third-Party Services with the Platform Services. You represent and warrant that your use of any Third-Party Service signifies your independent consent to the access and use of your data by the Third-Party Service provider, and that such consent, use, and access is outside of Lodgistics’ control. Lodgistics will not be responsible or liable for any disclosure, modification or deletion of data resulting from any such access by Third-Party Service provider.
14.4) Applicability of Disclaimers and Limitations. The Parties agree that Lodgistics has set the fees and entered into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
15) General.
15.1) Non-Exclusive. Unless stated in any Order Form, the relationship created by this Agreement is non-exclusive in all respects.
15.2) Rights and Survival. Except where specifically provided, termination of this Agreement will be without prejudice to any other rights that either Party may have at law or in equity. The following Sections of this Agreement will survive its expiration or termination: 2.3, 4, 6, 7.2.3, 7.3, 8, 9.1, 9.3, 10, 12 through 15.
15.3) Open Source Software. Certain items of code provided with the Platform are subject to “open source” or “free software” licenses (“OSS”), a list of which is available upon request. OSS is not subject to the terms and conditions of this Agreement, except for this section and the disclaimers and limitations of liability. Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms of any applicable end-user license for the OSS.
15.4) Notices. Notices will be given in writing and may be delivered by U.S. mail, overnight delivery service, or personal delivery to the intended recipient of the notice at the address noted in the recitals. Notice will be deemed delivered when received or one business day after deposit with an overnight delivery service for next day delivery, whichever is earlier. A Party may change a contact upon 10 days’ written notice to the other Party, which notice will contain the new contact information as set forth above.
15.5) Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of such events as, but not limited to, flood, pandemic, or other natural disaster, riot, fire, judicial or governmental action, labor disputes, actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from Lodgistics’ server, sabotage or criminal interference with the server or Platform Services or any other causes beyond the control of either Party (a “Force Majeure Event”), the Party experiencing the Force Majeure Event will be excused from performance to the extent that it is prevented, hindered or delayed by such causes, except with respect to Customer’s obligations to pay the fees. Each Party agrees to give the other notice as soon as possible of the existence of a Force Majeure Event affecting the Party’s performance and to give notice of the termination of the Force Majeure Event and the ability to continue performance under the Agreement.
15.6) Separate Parties; No Third-Party Beneficiaries. The Parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among Lodgistics, Customer or any User. Lodgistics will perform the Platform Services as an independent contractor. Neither Lodgistics nor Customer is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no User or any other person not a party to this Agreement will have any right to enforce any term of this Agreement.
15.7) Right to Update. Lodgistics reserves the right to make visual or functional modifications to the Platform Services from time to time for the purpose of maintaining or improving security, ensuring optimal performance, meeting standard industry business requirements, and adding or improving functionality. Lodgistics reserves the right to make such changes without prior notification to Customer. It is Lodgistics’ intent that no such change will materially reduce the functionality of the Platform Service.
15.8) Publicity. Lodgistics may disclose Customer as a customer and use Customer’s name and logo on Lodgistics’ website and promotional channels and materials to do the same; provided that Lodgistics will not create any materials that would imply Customer’s active endorsement of Lodgistics, or otherwise utilize Customer’s name or logo, without Customer’s prior written approval.
15.9) Entire Agreement. This Agreement, including the Exhibits and any document incorporated herein by reference, states the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous proposals, negotiations and other written or oral communications between the Parties with respect thereto. Terms in Customer’s pre-printed purchase orders or order forms will have no force or effect.
15.10) Dispute Resolution; Jury Waiver; No Class Actions. The Parties agree that if one of them believes that the other has breached or is about to breach this Agreement or Customer disputes an Lodgistics charge appearing on a bill, the complaining Party will give immediate written notice to the other of the complaint. The Parties will enter into good faith negotiations for a reasonable resolution of the complaint within 10 business days of the Party’s receipt of the complaining Party’s notice. If the alleged breaching Party is unable to cure the alleged breach or billing dispute to the complaining Party’s reasonable satisfaction, the complaining Party will give the alleged breaching Party a clear and complete written statement of the reasons for such lack of satisfaction, and will provide such Party with 15 days to cure such issue. After such cure period, either Party may then resort to whatever remedy is available at law or equity, subject to the limitations on remedy provided for in this Agreement. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
15.11) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to any applicable law or regulation, the Parties agree that such provision will be construed so that it can be found lawful to the fullest extent possible and the remaining provisions of this Agreement will remain in full force and effect. If such provision cannot be construed in a fashion that is lawful or is otherwise found void, then the Parties agree that the remaining provisions of this Agreement will continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the intent of the Parties, including the economics of the Agreement.
15.12) Assignment. Neither Party may assign its rights and obligations under this Agreement without the prior written permission of the other Party. This Agreement will be binding on each Party’s permitted successors and permitted assigns.
15.13) Governing Law and Venue. This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of North Carolina without regard to any principle that would require the application of the laws of another jurisdiction. Each Party hereto hereby irrevocably submits to the exclusive jurisdiction of and venue in any federal or state court located within Wake County, North Carolina over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action or proceeding related thereto may be heard and determined only and exclusively in such courts. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such dispute brought in such court, and any defense or right to move to dismiss or transfer any action brought in such courts on the basis of any objection to personal jurisdiction, venue or inconvenient forum for the maintenance of such dispute. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
15.14) Electronic Agreement; Clickthrough; Online Upgrades. This Agreement, together with any Order Forms and/or upgrades or Add-ons may be agreed to electronically, including via digital signatures, clickthrough path and/or the completion of any upgrade or similar path within the Platform Service. Customer’s use of any element of the Platform Service will indicate its agreement to be bound by this Agreement.
15.13) Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of this Agreement.
