THIS MASTER SUBSCRIPTION SERVICES AGREEMENT ("AGREEMENT") GOVERNS YOUR FREE TRIAL OF THE OPEN HOTEL SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE OPEN HOTEL SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE OPEN HOTEL SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING THE SIGN UP BUTTON OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
ANY DATA CUSTOMER ENTERS INTO THE OPEN HOTEL SUBSCRIPTION SERVICES DURING THE THIRTY DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME OPEN HOTEL SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL.
THE TERMS OF SERVICE is made and entered into the date of the sign up through openhotel.com (the"Effective Date") by and between Open Hotel by Alternate Image, Inc. a Florida Corporation, 132 West International Speedway Boulevard, Daytona Beach, Florida 32114 ("Open Hotel") and ("Client.")
WHEREAS, Client desires to engage and Open Hotel desires to be engaged to perform Services as outlined in this Agreement.
NOW THEREFORE, in light of the foregoing, the mutual covenants and terms of service contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Open Hotel agrees to provide the Client an online Booking Engine for the purpose of allowing Client to have a website with reservation functionality as referenced on openhotel.com. Open Hotel agrees to provide, at no additional cost, online support and training videos as long as the Client's account is active and payments are being received.
1. Client agrees to pay a fee of $59, $79 or $99 per month dependant up on the number of rooms on the property. The monthly fee for a property with 25 or less rooms on the property is $59. The monthly fee for a property with 26-60 rooms on the property is $79. The monthly fee for a property with 61 or more rooms on the property is $99. The first fee will be charged on the first day following expiration of the free trial. Subsequent fees will be charged on the monthly anniversary of the effective date.
2. All payments due to Open Hotel thereunder shall be in U.S. dollars unless prior arrangements have been made. Open Hotel reserves the right to discontinue service for delinquent accounts.
1. No refunds will be made.
2. This Agreement shall commence on the Effective Date and continue until further notice by letter or by online cancelation as provided by openhotel.com.
3. The Terms of Services Agreement automatically renews on a month to month basis. The date of renewal is determined by the anniversary of the effective date.
4. Cancellation Term
(a) It is the responsibility of the Client to retrieve any data, assets, or information regarding this Service prior to cancellation.
(b) Open Hotel reserves the right to suspend or terminate the services and/or this Agreement at any time without notice to Client. No refunds will be made for services suspended or terminated due to violation of this Agreement. If Client goes into insolvent liquidation or suffer the appointment of an administrator or administrative receiver or enter into a voluntary arrangement with Client's creditors, we reserve the right to suspend services and/or termination this agreement forthwith. Upon termination of this Agreement or suspension of the services Open Hotel will be entitled to immediately block access and to remove all data.
IV. Representations and Warranties
1. Copyright. Open Hotel retains exclusive and sole ownership of any and all applications and application programming offered through these Services. The use of any Open Hotel Services by Client in no way implies a transfer of copyright or ownership.
2. Client Content. Client represents and warrants that it has the power and authority to enter into and perform its obligations under this Agreement. Client is responsible for maintaining all data including rates and availability. Client assures that any content added or provided by Client does not infringe or violate any rights of any third party. This includes all materials provided by Client in association with the Services, including but not limited to text, graphics, or materials generated in any form or media. Client further represents and warrants that it shall comply with any and all applicable laws and regulations which are now in effect or which may become applicable.
3. Intellectual Property. Client acknowledges that Open Hotel is the sole and exclusive owner of Open Hotel protectable intellectual property, including without limitation, trademarks, service marks, trade names and logos. Open Hotel hereby reserves all such rights not specifically granted hereunder.
4. Suggestions. Customer agrees that Open Hotel shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any Alternate Image products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Users relating to the Services.
5. Confidentiality. The term"Confidential Information" shall include all materials provided by each party to the other, in whatever form or medium, except such material as the parties agree in writing is not proprietary or confidential. Information made available to the general public, other than information impermissibly disclosed by a party, shall not be Confidential Information. The parties agree that the Confidential Information constitutes a valuable and unique asset. With regard to the other party's Confidential Information, each party agrees: (1) to use the Confidential Information only to effect the purposes of this Agreement; (2) not to disclose the Confidential Information except to those persons whose access is necessary to effect the purposes of this Agreement and to notify such persons that the Confidential Information is to be kept in confidence; (3) to use reasonable means to safeguard the Confidential Information; and (4) that any disclosure or unauthorized use of the Confidential Information will cause irreparable harm and loss to the other and that the injured party shall be entitled, in addition to any other remedies and damages available at law or in equity, to specific performance of this Agreement and to injunctive relief to restrain violation of this Agreement. The pursuit of one remedy by a party shall not preclude pursuit of any and all other remedies to which that party is entitled. Upon termination of this not preclude pursuit for any and all other remedies to which that party is entitled. Upon termination of this Agreement Open Hotel agrees to immediately return all Confidential Information and copies thereof to Client.
6. Reference. Client agrees to allow Open Hotel to supply potential clients with Client's name and contact information for the purpose of reference and Client input.
7. Indemnity. Each party shall defend, indemnify, and hold harmless the other, its officers, agents, and employees from and against all third-party claims, actions, causes of action, liabilities, damages, costs, and expenses, including reasonable attorneys' fees, arising out of or related to any facts or alleged facts which, if true, would constitute a breach by a party of this Agreement.
8. Limitations on Services: Liability. Open Hotel will not be responsible or liable for any inaccuracies in the data nor will it have any liability under any circumstances for any consequential or punitive damages. Open Hotel agrees to correct information not accessible to Client, such as formatting or system programming, within seven (7) days of written notice from Client. Client is solely and exclusively responsible for the protection of any and all of its intellectual property, including but not limited to, the inclusion of its pages of any and all statutory or other notices customarily used or required for purposes of providing notice of ownership or protection of Client's trademarks, trade names, service marks, or copyrights. Open Hotel will not be responsible or liable for any disruption in Internet service or system downtime. Open Hotel reserves the right to temporarily suspend access to the Services for means of upgrade or maintenance to enhance the system.
9. General Provisions.
(a) Order of Precedence. In the event that there is a conflict between this Agreement and any exhibit, this Agreement shall govern.
(b) Notices. All notices, requests, consents and other communication hereunder shall be in writing, shall be addressed to the receiving party's address as listed above or as a party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex, telecopy, e-mail, or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered mail, return receipt requested, postage prepaid. All notices, requests, consents and other communications hereunder shall be deemed to have been given (i) if by hand, at the time of delivery thereof to the receiving party at the address of such party set forth above, (ii) if made by telex, telecopy, e-mail or facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight courier, on the next business day following the day such mailing is made, or (iv) if sent by registered mail, on the fifth business day following the day such mailing is made.
(c) Entire Agreement. This agreement contains the entire understanding between the parties and supersedes all prior agreements with respect to the Services. This Agreement may not be modified, changed or altered by any statement not contained herein, and may only be modified by further written consent signed by both parties.
(d) Severability. Each of the provisions of this Agreement shall be enforceable independently of any other provisions of this Agreement and independent of any other claim or cause of action.
(e) Further Assurances. The parties hereto shall at any and all times, upon request by the other party, or its legal representative, make, execute, and deliver any and all such other and further instruments as may be necessary or desirable for the purpose of giving full force and effect to the provisions of this Agreement, without charge therefore.
(f) Waiver. The failure of either party at any time to require the performance of the other, of any of the provisions herein, shall in no way affect the respective rights of either party to enforce the same, nor shall the waiver by either party of any breach of any provisions hereunder, be construed to be a waiver of any succeeding breach of as a waiver or modification of the provisions of the contract itself.
(g) Governing Law: Jurisdiction; Venue. This Agreement is made and entered into in Volusia County, Florida. Florida laws apply. Open Hotel and the Client agree that any dispute under this Agreement will be subject to binding arbitration under the commercial rules of the American Arbitration Association. The arbitration shall be conducted in Volusia County, Florida before neutral arbitrators. This is the entire agreement between the parties and may only be amended in writing signed by both parties. All correspondence should be addressed to Alternate Image, Inc. d/b/a Open Hotel, 132 W. International Speedway Blvd, Daytona Beach, Florida 32114.
(h) Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the heirs, personal representatives, successors and assigns of the parties hereto.
(i) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
(j) Headings. The headings herein are inserted as a matter of convenience only, and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
(k) Force Majeure. Any delay in or failure of performance by a party under this Agreement shall not be considered a breach of this Agreement if and to the extent caused by events beyond the reasonable control of such party, including but not limited to Acts of God, embargoes, governmental restrictions, strikes, riots, terrorists attacks, wars, or other military action, civil disorders, rebellion, fires, floods, vandalism, power outages, or sabotage. The party whose performance is affected by such events shall promptly give notice to the other, specifying the force majeure circumstances, and shall do everything reasonably possible to resume performance. If the period of nonperformance exceeds sixty (60) days from the receipt of notice of the force majeure event, either party may, by giving written notice, terminate the Agreement in whole. However, unless this Agreement is terminated as provided in the preceding sentence, the obligations of such party giving notice shall be suspended to the extent caused by the force majeure and so long as the force majeure continues, and the time for performance of the affected obligation shall be extended by the time of the delay caused by such force majeure.
(l) Survival. This Agreement shall survive any change of ownership, brand affiliation, management, or name of Client.
10. Survival. Upon termination of this Agreement, the provisions of paragraphs all of Section III and IV shall survive.
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