ENTERPRISE SERVICE AGREEMENT
This Enterprise Service Agreement (this "Agreement") is made and entered into as of the date Customer agrees to set up a Business account to use the service (the "Effective Date"), by and between Etravel Applications, LLC, a California limited liability company, doing business as HotelTap, ("Service Provider"), and Business Name provided by customer on the service provider's customer sign up page ("Customer"). Use of the HotelTap software solution by Customer or it's employees, agents & representatives constitutes acceptance of this Enterprise Service Agreement and all the Terms of this Enterprise Service Agreement.
A.Service Provider makes available an enterprise-level SaaS solution (the "Enterprise Service").
B.Customer desires to have Service Provider provide Customer with the right to access and use the Enterprise Service (the "Web Application"), and Service Provider desires to provide Customer with the right to access and use the Enterprise Service, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
a."Authorized User" means any individual who has been authorized in accordance with the terms of this Agreement to access and use the Enterprise Service by Customer. Authorized Users may include, without limitation, account administrators, employees and contractors authorized by Customer, and users of the Web Application.
b."Service Provider Software" means certain proprietary Service Provider software, as described in Exhibit A, that is necessary for, and supports, the operation of the Enterprise Service.
c."Intellectual Property Rights" means patent rights, copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
d."Enterprise Service" means Service Provider's enterprise-level SaaS solution known as HotelTap, as described in Exhibit A.
a.Enterprise Service. Subject to Customer's compliance with the terms and conditions of this Agreement, Service Provider will provide Customer with the Enterprise Service. Customer may access and use the Enterprise Service in connection with the operation of the Web Application.
3. CUSTOMER OBLIGATIONS
a.Cooperation and Assistance. Customer will at all times provide Service Provider with good faith cooperation and assistance and make available such information, facilities, equipment and personnel as may be reasonably required by Service Provider in order to provide Customer with the Enterprise Service.
a.Payment Terms. Unless Customer prepays for the Enterprise Service as specified in Exhibit B, Service Provider will invoice Customer annually for the Fees due and payable for that year. Customer will pay each such invoice within thirty (30) days following the date thereof.
b.Recurring Fees. Customer will be charged annually for automatic renewals at the prevailing fees, which might change at any time, as described in Exhibit B or on the Service Provider's Pricing page on the website, unless Service Provider is notified at least 30 days in advance of the expiration of current term, of Customer's intent to discontinue the use of service. Customer shall provide notice of intent to cancel or discontinue use of service by emailing at email@example.com or by calling Service Provider's business phone number or by writing to Service Provider's business address.
c.Taxes. Service Provider will pay all taxes and duties assessed, in connection with services provided under this Agreement, by any authority within or outside of the U.S.
d.Interest. All amounts not paid when due under this Agreement will accrue interest monthly (without the requirement of a notice) at a rate of 1.5% per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full.
a.License to Enterprise Service. Subject to Customer's compliance with the terms and conditions of this Agreement, Service Provider hereby grants to Customer a non-exclusive license to access and use the Enterprise Services for the purposes of managing operational communication and data between Customer's employees, authorized users & contractors and between employees and outside customers within the Customer's organization.
b.Authorized Users. Customer's access to and use of the Enterprise Services pursuant to Section 5(a) will be expressly limited to the number of Authorized Users subscribed to in accordance with Exhibit B. Customer shall not allow access to or use of the Enterprise Services by anyone other than Authorized Users. Customer shall ensure that all Authorized Users comply with the terms and conditions of this Agreement and the Terms of Service for the Enterprise Services (available at http://hoteltap.com/terms.html). Customer shall promptly notify Service Provider of any breach of the terms and conditions of this Agreement or the Terms of Service by any Authorized User. Service Provider may suspend or terminate any Authorized User's access to the Enterprise Services upon notice to Customer in the event that Service Provider determines that such Authorized User has breached the terms and conditions of this Agreement or the Terms of Service of the Enterprise Services.
6. DATA SECURITY
a.User Information. Service Provider agrees to maintain confidentiality, integrity, and privacy of information stored via the Enterprise Service, including data stored by users of the Web Application, and data stored by Customer or its agents.
7. WARRANTY AND SUPPORT
a.Limited Warranty. Service Provider warrants to Customer that the Enterprise Service will provide the functionality specified in Exhibit A. In the event that the Enterprise Service fails to conform to the foregoing warranty, the remedies are specified in Exhibit C.
b.Support. Service Provider will provide Customer and Authorized Users with support for the Enterprise Service in accordance with the terms set forth in Exhibit D.
a.Indemnification by Service Provider. Service Provider will defend any action brought against Customer to the extent that it is based upon a third party claim that the Enterprise Service, as provided by Service Provider to Customer pursuant to this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, and will pay costs, damages and reasonable attorneys' fees attributable to such claim that are awarded against Customer, and will indemnify and hold Customer harmless for any costs and expenses incurred by Customer and any damages awarded in final judgment or paid in settlement by Customer with respect to any such claims; provided that Customer: (i) promptly gives Service Provider written notice of the claim; (ii) gives Service Provider sole control of the defense and settlement of the claim (provided that Service Provider may not settle any claim unless the settlement unconditionally releases Customer from all liability); and (iii) provides Service Provider with all information and assistance that is reasonably necessary for the defense and settlement of the claim, at Service Provider's expense. Customer reserves the right to retain counsel, at Customer's sole expense, to participate in the defense of any such claim.
b.Injunctions. In the event that Customer's rights to use the Enterprise Service hereunder are enjoined, or in Service Provider' s reasonable opinion are likely to be enjoined, due to the type of claim specified in Section 8.1 above, Service Provider may at its sole option and expense: (i) procure for Customer the right to continue using the Enterprise Service; (ii) replace or modify the Enterprise Service so that it is non-infringing and substantially equivalent in function to the enjoined Enterprise Service; or (iii) if options (i) and (ii) above cannot be accomplished despite Service Provider' reasonable efforts, then Service Provider may terminate Customer's rights and Service Provider's obligations hereunder.
c.Exclusions. Notwithstanding the terms of Section 8.1, Service Provider will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Enterprise Service with equipment, devices, software or data not supplied by Service Provider, if a claim would not have occurred but for such combination, operation or use; or (ii) Customer's use of the Enterprise Service other than in accordance with this Agreement.
d.Indemnification by Customer. Customer will defend Service Provider against any action or suit brought against Service Provider by a third party in connection with Customer's use of the Enterprise Service (other than a claim for which Service Provider is responsible under Section 8.1), and will indemnify and hold Service Provider harmless for any costs and expenses incurred by Service Provider and any damages awarded in final judgment or paid in settlement by Service Provider with respect to any such claim; provided that Service Provider: (i) promptly gives Customer written notice of the claim; (ii) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless the settlement unconditionally releases Service Provider from all liability); and (iii) provides Customer with all information and assistance that is reasonably necessary for the defense and settlement of the claim, at Customer's expense. Service Provider reserves the right to retain counsel, at Service Provider's sole expense, to participate in the defense of any such claim.
9. LIMITATION OF LIABILITY
a.Total Liability. In no event will Service Provider's total liability to Customer in connection with this Agreement or customer's access to and use of the Enterprise Service exceed the total fees paid by Customer in connection with this agreement.
10. TERM AND TERMINATION
a.Term. This Agreement will commence on the Effective Date and will continue for the initial term specified in Exhibit A or, if no such term is specified, one (1) year, unless terminated earlier as provided in this Agreement. This Agreement shall automatically renew for subsequent one (1) year terms, unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The initial term and any renewal terms are collectively the "Term".
b.Termination for Cause. Either party may terminate this Agreement upon written notice if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party.
c.Customer shall provide notice of intent to cancel or discontinue use of service, at least 30 days before the end of the current term, by emailing at firstname.lastname@example.org or by calling Service Provider's business phone number or by writing to Service Provider's business address.
d.Effect of Termination. Upon any expiration or termination of this Agreement: (i) Service Provider will transfer Customer data stored in the Enterprise Service, including data of users of the Web Application, to a data storage facility designated by the Customer; (ii) Customer will reimburse Service Provider for any reasonable expenses and fees related to the data transfer described in (i); (iii) once the data transfer described in (i) is complete, Service Provider may terminate the Enterprise Service; and (iv) Service Provider will delete all copies of Customer data remaining in its control, including data of users of the Web Application.
e.Survival. The rights and obligations of the parties under Sections 4, 5, 6, 8, 10.3, 10.4 and 11 will survive any expiration or termination of this Agreement.
a.Assignment. Neither party may assign or transfer this Agreement, in whole or in part, without the other party's written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be void. "Change of Control" means, with respect to a party: (i) the direct or indirect acquisition of either: (a) the majority of voting stock of such party or (b) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (ii) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
b.Governing Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions.
c.Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
d.Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
e.Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
f. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
g.Relationship between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.
h.Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the non-performing party will promptly notify the other party and will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
i. Entire Agreement. This Agreement together with the exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
j. Non-Exclusive Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
k.Construction of Agreement. The parties acknowledge and agree that each has been represented by legal counsel of its choice throughout the negotiation and drafting of this Agreement, that each has participated in the drafting thereof, and that this Agreement will not be construed in favor of or against either party solely on the basis of a party's drafting or participation in the drafting of any portion of this Agreement.
l. Counterparts. This Agreement may be executed in counterparts, each of will constitute an original, and all of which will constitute one and the same instrument.
The parties have caused this Agreement to be signed as of the Effective Date by their duly authorized representatives. (Customer will have caused to sign this agreement by setting up a Business account on the provider's website).
Name: Sandip B. Jariwala
Name: (Authorized Administrator of account)
SERVICE PROVIDER SOFTWARE
The Enterprise Service and Service Provider Software is the software accessible at www.HotelTap.com. Such software facilitates management of operational communication, task completion and business management and data between employees, customers, authorized users and contractors and between employees and outside customers within the Customer's organization.
Monthly Fees invoiced and charged Annually, starting and prevailing on the day after expiry of any offered initial free trial period, and subject to change at any time, as described on the Pricing page of the website: http://hoteltap.com/pricing.html.
Recurring Fees: Customer will be charged annually for automatic renewals at the prevailing fees, subject to change at any time, as described on the Service Provider's Pricing page on the website, unless Service Provider is notified at least 30 days in advance of the expiration of current term, of Customer's intent to discontinue the use of service. Customer shall provide notice of intent to cancel or discontinue use of service by emailing at email@example.com or by calling Service Provider's business phone number or by writing to Service Provider's business address.
Service provider agrees to provide 99% uptime of service, except in cases where regular maintenance and upgrade or troubleshooting of service is required. In such cases when service will not be provided, service provider will communicate to Customer as and when possible.
Service provider does not warrant availability of service when it is not possible to do so due to unforeseen circumstances or due to reasons beyond the control of service provider.
Compensation for breach of warranty by Service Provider
shall be prorated in the annual fees charged to Customer, and will be based on
the time that service is not available to Customer due to Service Provider's
Any such compensation shall not exceed one year's fees charged to Customer for using the service.
Customer will communicate support issues to Service Provider by emailing at firstname.lastname@example.org or other email address provided for enabling support on www.HotelTap.com.
Service provider will respond to support issues, by emailing or calling Customer, in a reasonable manner depending on the nature, severity and complexity of the issue and the ability of Service Provider to resolve such issues.