The following are the terms and conditions for use of the REVIEW ANALYSIS DASHBOARD service
described herein (the "Service") between OpinionWell, LLC and you (either an individual or a legal entity
that you represent as an authorized employee or agent) ("You").
Please read them carefully. ‘You’ or ‘your’ means the individual or entity
listed on the Account you create (Client) and you represent you have the
authority to agree to this Agreement for that party. You represent and warrant
you are authorized to act on behalf of, and bind to this Agreement, any third
party for which you utilize the Service. BY CLICKING THE "I ACCEPT"
BUTTON, COMPLETING THE REGISTRATION PROCESS
"Account" refers to the billing account for the Service.
"Documentation" means any accompanying proprietary documentation made available to You by OpinionWell for use with the Service, including any documentation available online or otherwise.
"Software" means the proprietary OpinionWell indexing, semantics, and natural language processing Software and any all upgrades to such, which analyzes data and generates the Reports.
"Report" means the resulting analysis shown at www.opinionwell.com/hoteltools (or such other URL OpinionWell may provide from time to time). The number of charts, graphs, and statistics contained in a Report varies with the edition of the Service.
Provider will furnish Client with online subscription services to Provider’s product known as REVIEW ANALYSIS DASHBOARD to allow Client to monitor consumer generated hotel reviews on the Internet, all as more fully set forth in Exhibit A hereto (the “Services”), which is incorporated herein for all purposes. The Services shall include monitoring select web sites for those hotel properties of Client set forth in Exhibit A (and derivatives of the names of such properties) using established search engines and Provider’s proprietary Software. Provider shall deliver the Services to persons designated by Client who are employees of or consultants to Client (collectively, the “Subscribers”) as set forth in Exhibit A (the tangible form in which the Services will be delivered to Client are hereinafter called the “REVIEW ANALYSIS DASHBOARD Reports”). Provider shall enable Client to maintain the information provided in the Reports through an online dashboard, as more fully described in Exhibit A.
The delivery of Services to Client by Provider will commence on the Effective Date, and shall extend for a period of one (1) year until such time as terminated by either Provider or Client upon thirty (30) days prior written notice to the other. Ten (10) days after termination of this Agreement, Provider shall purge any contents of Client’s online dashboard, and shall, if requested, certify same in writing to Provider. Notwithstanding any provision in this Agreement to the contrary, Provider reserves the right to suspend or terminate the Services at any time for any reason.
This license will terminate immediately if Client fails to comply with the terms of this Agreement. Upon such termination, Client must destroy all originals and copies of the reports and documentation in Client’s possession and so certify in writing to Provider within three (3) business days of termination and cease any further use of the Service without the express written consent of Provider.
a) In consideration of Provider providing the Services and delivering to Client the Reports, Client agrees to pay Provider, by valid credit card, through electronic funds transfer (“EFT”) debit, or through monthly invoicing payable by credit card or check, the monthly subscription charges set forth in Exhibit A attached hereto and made a part hereof for all purposes.
b)
At any time and from time to time, Provider reserves
the right to modify its fees, including instituting new fees or Services. The
changes to the fees or payment policies are effective upon Your
acceptance of such changes which will be posted at www.opinionwell.com/hoteltools
(or such other URL Provider may provide from time to time) and such revised
fees shall be deemed to au
c) Unless otherwise stated, all fees are quoted in U.S. Dollars.
d) In the event Provider is unable to successfully charge Client’s credit card via EFT, or an invoice is not paid within thirty (30) days after the date of delivery of such invoice, Provider reserves the right to terminate or suspend Client’s access to the Services.
e) Payment is due for the first month of Services at the time of execution of this Agreement, and payment for Services thereafter shall be due and payable on the first day of each ensuing month and any extensions of this Agreement thereafter. Fees paid for Services are non-refundable.
f) Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by Provider will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with your account.
Provider shall provide Services to Client with the following specifications:
a) Provider will deliver the Services, including the Reports, to Subscribers via a password protected dashboard for the exclusive use of Subscribers.
b)
Provider shall use good faith efforts to provide comprehensive
and accurate Services, subject to the disclaimers set forth in Section
a. Client shall register for the Service by completing the
registration process and providing Provider with current, complete and accurate
information as requested by the registration form, including: (i) applicable
hotel name(s), (ii) hotel website(s), and (iv) e-mail
addresses of all Subscribers. Client may revise its designation of Subscribers
upon prior written request to Provider. Client shall protect passwords and take
full responsibility for Client’s own, and third party, use of Client Accounts. Client
is solely responsible for any and all activities that occur under Client
Account. Client agrees to notify Provider immediately upon learning of any
unauthorized use of Client Account or any other breach of security. From time
to time, Provider's support staff may log in to the Service under Client cus
b. Client acknowledges that Provider aggregates and distributes, but does not generate, the content underlying the Services, and that the Reports furnished by Provider represent the opinions of others and may contain inaccuracies, libelous material, profanity, and pornography. Provider may block certain comments using specific keywords, and Client will have the ability to control the blocking of key words.
c. Client understands and acknowledges that the Reports are for internal review, analysis, and research only, and Client agrees, represents, and warrants (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will use the Software, the Service and Reports solely for Your own internal use, and will not make the Software or the Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in Your use of and access to the Service, Software, Reports, and Documentation..
d. Client agrees to indemnify, defend, and hold harmless Provider, its owners, employees, governing persons, affiliates, agents, successors, assigns, and attorneys from and against any and all claims, suits, demands, actions, proceedings, costs, damages, expenses (including, but not limited to, legal fees and out-of-pocket expenses) and losses incurred by any of such parties arising out of or related to or occurring in connection with Client’s breach or alleged breach of any of its obligations arising out of or in connection with this Agreement, including Client’s publication, transmission, delivery, or other use of any information or material contained in any Report furnished to Client pursuant to this Agreement. Upon written request from Provider, Client shall promptly defend or settle such claim, suit, demand, action, or proceeding at Client’s sole expense through counsel reasonably acceptable to Provider; provided, however, Client may not settle or compromise any claim without the prior written consent of Provider, which consent shall not be unreasonably withheld. In the event Client elects, for any reason or for no reason, not to defend any claim hereunder, Provider may settle, compromise, or defend such claim, and shall be entitled to recover from Client the amount of any final settlement or judgment, as well as all costs and fees incurred by Provider in connection with such settlement or defense, including reasonable attorney’s fees and expenses. The foregoing notwithstanding, nothing herein shall prevent Provider, in its sole discretion, from defending or settling any such claim, suit, demand, action, or proceeding at its own expense and through its own counsel. The indemnification obligations set forth in this Section V(d) shall survive the termination or expiration of this Agreement.
e. Client shall pay all amounts due upon receipt of any invoice from Provider for Services rendered hereunder, or, in the event Client authorizes Provider to debit via EFT Client’s credit card on the first day of each month, to provide Provider with a valid credit card with sufficient credit to effect each such EFT transfer.
f. Any Client invoices more than thirty (30) days past due are subject to a finance charge of 1.5% per month for each month or part thereof that payment hereunder is past due, or the highest rate allowed by law.
VI. Third Parties
If Client provides access to their Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party ("Third Party"), whether or not Client is authorized to do so by Provider, the terms of this Section VI shall apply.
If You use the Service on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party , (b) as between the Third Party and You, the Third Party owns any rights to Data in the applicable Account, and (c) You shall not disclose Third Party's Data to any other party without the Third Party's consent.
You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. Provider makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Provider and the Services, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend Provider, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against Provider or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Provider, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Services, the Software or Reports to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Services, the Software or Reports; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports.
a. Provider shall make no effort, and shall not be required hereunder, to substantiate the truthfulness of any Report, and Provider does not endorse, warrant, attest to, or make any judgment about the content of any Report.
b. PROVIDER MAKES NO WARRANTY HEREUNDER OF ANY KIND, EXPRESS
OR IMPLIED, TO CLIENT WITH RESPECT TO THE SERVICES
BECAUSE CLIENT IS ACQUIRING THE SERVICES FOR INTERNAL USE
ONLY,
Nothing contained in the Agreement is intended to convey, or shall be construed to convey, to Client any right, title or interest in or to the Services, Reports, documentation, or any of the Software underlying the gathering of information in connection with the Services or the generation of any Report. For all purposes of this Agreement, all right, title and interest in and to the Services, Software, and any Report is owned exclusively by Provider.
Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Provider; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Provider other than in the name of Provider; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
You are responsible for safeguarding the confidentiality of Your password(s) and user name(s) issued to You by Provider, and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify Provider of any unauthorized use of Your account or any other breach of security known to You.
The agreement of the parties contained in this Section X shall survive the termination or expiration of this Agreement.
a. This Agreement may be assigned in whole or in part by Provider at any time. Client may not assign this Agreement without the prior written consent of Provider. A sale of all or substantially all of the assets of Client or a sale of all or a controlling interest in Client shall for all purposes hereunder be deemed an assignment of this Agreement.
b. Provider is, and for all purposes hereunder shall be deemed, an independent contractor, and not an agent, partner or joint venture of Client. Neither party shall make any warranties or representations of any kind, express or implied, to third parties in the name of the other party, nor shall any party hereunder assume or create, or attempt to assume or create, any obligation of any kind on behalf of the other party.
c. Accessing or using the Services signifies the acceptance of this Agreement by Client.
d. No delay or omission by either party in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by a party on any one occasion is effective only on that occasion, and shall not be construed as a waiver of that right or consent as to any other occasion or any other breach. No course of dealing between the parties will give rise to any implied amendment or waiver.
e. If any provision of this Agreement is found to be unenforceable or invalid, such provision shall be modified to the least extent necessary to make it enforceable or valid, and the remaining provisions of this Agreement will remain in full force and effect.
f. Neither party shall be in default by reason of failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes beyond the reasonable or foreseeable control of either party, including but not limited to, default by suppliers, acts of God, acts of terrorism or the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, transportation contingencies, fire, flood, epidemic, restrictions and strikes.
g. This Agreement shall be exclusively governed by, and
construed in accordance with, the laws of the State of
h. ANY PARTY BRINGING A LEGAL ACTION OR PROCEEDING AGAINST
ANOTHER PARTY FOR THE RESOLUTION OF ANY DISPUTE ARISING IN CONNECTION WITH THE
INTERPRETATION, CONSTRUCTION, OR ENFORCEMENT OF THIS AGREEMENT SHALL BRING SUCH
LEGAL ACTION OR PROCEEDING IN ANY COURT OF THE STATE OF WASHINGTON SITTING IN KING COUNTY, WASHINGTON OR ANY
FEDERAL COURT HAVING JURISDICTION OVER KINIG COUNTY, WASHINGTON. EACH PARTY
HERETO AGREES TO SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION
i. If litigation, or any form alternative dispute resolution, is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs, court costs, and costs of any alternative dispute resolution.
j. This Agreement may be executed in counterparts, including without limitation by facsimile or electronic signature, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same agreement.
k. This Agreement may not be amended except by an instrument in writing signed by a duly authorized representative of each party hereto.
l. Any and all notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile, by nationally recognized overnight courier, or by express, registered or certified mail to the respective party at the address or facsimile number first set forth above (or at such other address as a party shall specify in a written notice given in accordance with this paragraph).
m. This Agreement, together with any attachments referred to herein, constitutes the entire agreement between the parties with respect to the delivery of Services, including the delivery hereunder of any Report, and supersedes all prior or contemporaneous agreements, proposals, negotiations, representations or communications, whether written or oral, relating to such subject matter. The parties acknowledge and agree that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
Description of
Services
The Review Analysis Dashboard by OpinionWell will serve as a centralized dashboard from which to monitor and/or manage User Generated Content (UGC) pulled from various public Internet sites.
Monthly Charge for
Services
There will be no charge for the use of the Services during
the promotional period, which shall continue until