UNIGUEST STANDARD TERMS AND
CONDITIONS
Pay-Per-Use Systems
Version Effective April 10,
2017
By executing the Uniguest
Customer Order (an “Order”) to which
these Uniguest Standard Terms and Conditions (the “Terms”) are attached, you (“Customer”)
agree that these Terms govern your purchase (if applicable), receipt and use of
the hardware, software, equipment, and other products and services set forth on
your Order (the “Products and Services”)
and that these Terms together with the Order constitute a binding contract
between you and U.S. Hospitality Publishers, Inc., a Tennessee corporation,
doing business as Uniguest (“Uniguest”).
1.
Definitions.
a.
“Agreement” means
the Order together with these Terms and each of the attached schedules.
b.
“Effective Date”
means the effective date set forth in the Order, or if not specified, the date
the Order was signed by Customer, or if not dated, the date Uniguest shipped
the Products and Services to Customer.
c.
“Initial Term”
means the initial term of the Agreement as set forth in the Order beginning as
of the first day of the first full month following the Effective Date (or if
the Effective Date is the 1st day of a month, such day). If no
initial term is designated on the Order, the initial term will be one year from
such date.
d.
“Malicious Code”
means viruses, worms, time bombs, Trojan horses and other harmful or malicious
code, files, scripts, agents or programs. Malicious Code does not include the
ability of Uniguest to remotely access, monitor, update, suspend operation of or
disable any System or Uniguest Software.
e.
“Recurring Service
Fees” means all annual, monthly and other recurring service and support
fees payable by Customer to Uniguest, together with any taxes accruing with
respect thereto for which Customer is responsible, pursuant to the terms of the
Agreement.
f.
“System” means,
as the context may dictate, an individual personal computer, business center
kiosk, boarding pass kiosk, digital sign, or mobile device, together, as may be
applicable, with any related peripherals (including without limitation
keyboard, monitor(s), mouse, printer(s) and/or multi-function device(s)),
included in the Products and Services.
g.
“Third Party
Materials” means any hardware, software or other materials not proprietary
to Uniguest that constitute a part of or are incorporated in any part of the
Products and Services. In avoidance of
doubt, Third Party Materials includes toner and paper.
h.
“Third
Party Services” means any services that Uniguest will not provide, that is
not listed in this document.
i.
“Uniguest Software”
means all computer software proprietary to Uniguest that is included in or
delivered or made available to Customer as part of the Products and Services.
2.
Products
and Services. Uniguest will provide the Products and Services to Customer
in accordance with the terms of this Agreement and the product and service
descriptions and additional terms attached hereto as Schedule A.
3.
Term
and Termination.
a.
Renewal.
Unless terminated in accordance with Section 3.b below, the Agreement will
continue in effect for the Term as defined in the Order.
b.
Termination.
i. Without Cause.
Customer may terminate the Agreement without cause upon not less than sixty
(60) days’ prior written notice, provided that, in addition to any other
amounts to be paid, reimbursed or otherwise retained by Uniguest pursuant to
the Order, any previously paid or future due Recurring Services Fees
attributable to the unused portion of the remaining term of the Agreement will
be retained by and or payable to Uniguest as an early termination fee. Uniguest
retains the right to charge Customer for the Uniguest portion of the average
trailing 6-months revenue share, multiplied by the number of months remaining
in the term of the Agreement. Upon early termination, Customer agrees to
properly package (to prevent damage), and pay for equipment removal and
shipping to Uniguest within 48 hours via UPS Ground. In addition, to any other
obligations under this agreement, Customer will be responsible to pay Uniguest
an uninstall fee of $350.00 per unit. Further, where Uniguest has agreed to install
Systems under this Agreement that Uniguest has leased from a third party, in
addition to the foregoing obligations, Customer will pay Uniguest upon
termination an amount equal to the product of Uniguest’s monthly lease rate for
each Uniguest-leased System (including any applicable printer or multi-function
device) and the lesser of (i) the number of months remaining on such lease and
(ii) the number of months remaining in the term of this Agreement prior to
termination (pro-rated for any partial months).
ii. With Cause.
Either party may terminate this Agreement in the event of a material breach of
this Agreement by the other party if such material breach remains uncured
thirty (30) days after the date of written notice thereof from the
non-breaching party.
c.
Effect
of Termination. Accrued payment obligations, in addition to any other
amounts to be paid, reimbursed or otherwise retained by Uniguest pursuant to
the Order, together with Sections 1, 3.c, 4.e, f and g, 6, 7, 8, 10 and 11 will
survive any termination or expiration of this Agreement. Termination or
expiration of this Agreement for any reason shall not release either party from
any liability which has already accrued as of the effective date of such termination
or expiration, and shall not constitute a waiver or release of, or otherwise be
deemed to prejudice or adversely affect, any remedies or claims, whether for
damages or otherwise, which a party may have hereunder, at law, equity or
otherwise or which may arise out of or in connection with such termination.
4. Fees and Payment Terms.
a.
Fees.
Customer will pay the amounts set forth in the Order for the Products and
Services. One time fees are billed immediately upon the Effective Date.
Recurring Service Fees are billed on the Effective Date and when and as they
come due in accordance with the terms of the Order (including at renewal of the
Agreement).
b.
Recurring
Services. Uniguest may on each anniversary of the Effective Date following
the Initial Term increase any Recurring Service Fees by an amount not to exceed
five percent (5%), on a percentage increase basis. Uniguest will not be
required to notify Customer of any increase described in this clause b. Any
such increase will be reflected on Customer’s next recurring charge following
the effective date of any such increase.
c.
Third
Party Materials and Third Party Services. Prices for Third Party
Materials and Third Party Services are subject to change without prior notice
and are not subject to the foregoing percentage limit on increase.
d.
Payment
Terms. If Customer has provided a designated form of payment
(e.g., a deposit account pursuant to an ACH authorization or credit or debit
card), Uniguest will automatically draft or charge such form of payment for all
amounts due under the Agreement, when and as such amounts come due (which are generally
billed in advance of the term to which they relate). If Customer has not
provided any such form of payment, Uniguest will invoice Customer for such
amounts, and such amounts will be due within thirty (30) days of the date of
each such invoice.
e.
Late
Fees and Remedies. Amounts not paid when due in accordance with this Section
4 will be charged a late fee in the amount of the lesser of 2% per month or the
maximum amount allowed by law on the unpaid balance. In the event an amount due
hereunder is not timely paid, Uniguest may at its option and without penalty
hereunder discontinue providing service and support with respect to and/or
remotely disable any applicable Products and Services and/or Customer’s access
to any websites or software to which Customer was provided access as part of
the Products and Services. In the event an amount remains unpaid thirty (30)
days from the due date, Uniguest will have the right to enter onto Customer’s
premises during normal business hours and remove any hardware and/or software
for which Customer has not paid, and Customer will in such event be obligated
to reimburse Uniguest for its reasonable costs incurred in connection with such
removal and bill Customer a reasonable fee for such removal.
f.
Taxes.
Except for taxes accruing with respect to the net income of Uniguest, Customer
will be responsible for any and all applicable sales, use, excise, or other
taxes, whether federal, state or local, however designated, which are levied or
imposed with respect to Customer’s purchase of the Products and Services, and
whether or not set forth on the applicable Order.
g.
Title
to Hardware and Equipment.
i. Subject
to clause ii. below, title to hardware and equipment purchased from Uniguest
will pass to Customer once final payment for such hardware and equipment has
been received by Uniguest. This does not apply to the extent any hardware or
equipment that per the terms of the Agreement is to remain the property of
Uniguest. In the event of any failure on the part of Customer to pay any amount
due to Uniguest with respect thereto, then Uniguest or its agent may enter onto
Customer’s property during normal business hours and take possession of such
hardware and equipment for the purposes of selling same. Any such sale will be
conducted reasonably. To the extent the proceeds of any such sale, after
deducting Uniguest’s reasonable cost of recovering, holding and selling such hardware
and equipment, exceed the amounts owed by Customer to Uniguest hereunder, such
excess will be paid to Customer promptly after conclusion of the sale.
ii. The
provisions of clause i. above are not intended to grant Uniguest any greater
rights in respect of the hardware or equipment that is the subject of clause i.
above than would be available to a secured party under Article 9 of the Uniform
Commercial Code holding a perfected purchase money security interest in such
hardware and equipment (provided, for the avoidance of doubt, it shall not be a
requirement of exercising any such rights that Uniguest have perfected a
purchase money security interest in such hardware or equipment in accordance
with Article 9 of the Uniform Commercial Code).
iii. Once
the Uniguest Customer Order has been received by Uniguest, no refunds or
exchanges will be accepted. All sales
are final.
h.
Insurance.
Customer will at all times, and at its own expense, maintain insurance covering
all Systems that are owned by Uniguest for any loss or damage, designating
Uniguest as an additional insured and as a loss payee, and shall notify
Uniguest in the event any such coverage is cancelled or expires without
replacement. Such coverage will be in an amount not less than the total purchase
price or Total Equipment Cost set forth on the Order, as applicable, or if no
such amount is specified, a reasonable estimate of the retail value of such
Systems. All insurance of Customer shall be primary to any insurance carried by
Uniguest.
i.
Activation Rescheduling Fee.
If your account has an activation that is rescheduled more than two times, Uniguest reserves a right to charge a $25 rescheduling fee.
5. Maintenance and Support
Services. Exhibit B describes Uniguest’s policies and procedures with
respect to maintenance and support services. Such policies and procedures are
subject to change by Uniguest upon notice to Customer (which notice may be
electronic, including by posting updated policies and procedures on its
website).
6. DISCLAIMER OF WARRANTIES.
a.
Customer understands and acknowledges that Uniguest is not
the manufacturer, supplier or publisher of any Third Party Materials offered
under this Agreement, and to the extent it is providing any such Third Party
Materials as part of the Products and Services, it is doing so in a reseller
capacity. As such, Uniguest will pass through to Customer, to the extent
available, any such manufacturer’s, supplier’s or publisher’s warranties
associated with the Third Party Materials purchased from or through Uniguest,
but Uniguest does not provide any additional warranties with respect to such
Third Party Materials. Except for any such warranties that may be passed
through by Uniguest from such manufacturers, suppliers or publishers, ALL SUCH
THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS WITHOUT
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND BY UNIGUEST, EXPRESS OR IMPLIED.
b.
EXCEPT FOR THE MAINTENANCE AND SUPPORT SERVICES THAT
UNIGUEST WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE, THE SERVICES AND
PRODUCTS ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS
OR WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED.
UNIGUEST EXPRESSLY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS AND
WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, WHETHER WRITTEN OR ORAL,
INCLUDING WITH RESPECT TO THE PRODUCTS AND SERVICES, AND HEREBY DISCLAIMS AND
EXCLUDES ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING (BUT NOT
LIMITED TO) ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS
OR SUITABILITY FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR
SATISFACTORY QUALITY, WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR
USAGE IN TRADE, OR THAT THE PRODUCTS AND SERVICES WILL BE ERROR-FREE OR SECURE.
7. LIMITATION OF LIABILITY.
IN NO EVENT WILL UNIGUEST BE LIABLE FOR LOST PROFITS OR REVENUE, COST OF
SUBSTITUTE GOODS OR SERVICES, OR ANY SPECIAL, CONSEQUENTIAL, RELIANCE,
INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY
OF LIABILITY WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER UNIGUEST
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. UNIGUEST’S
LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE
TOTAL AMOUNT OF RECURRING SERVICE FEES RECEIVED BY UNIGUEST FROM CUSTOMER UNDER
THIS AGREEMENT WITHIN THE THREE (3) MONTHS PRECEDING THE ASSERTION OF ANY
CLAIM. ANY RECURRING FEES PAID ANNUALLY WILL BE PRO RATED OVER SUCH THREE (3)
MONTH PERIOD AND INCLUDED FOR PURPOSES OF DETERMINING THE AGGREGATE LIMITATION
OF LIABILITY FOR PURPOSES OF THE FOREGOING SENTENCE.
8. Confidentiality.
a.
The parties expressly acknowledge that in the course of
their performance, they may learn, view or have access to certain confidential
and proprietary information of the other party ("Confidential
Information"). Each party shall (i) not disclose, directly or indirectly
to any third party any portion of the Confidential Information without the
prior written consent of the disclosing party, (ii) not use or exploit the
Confidential Information for any purpose other than as required in the
performance of this Agreement, and (iii) take appropriate action to protect the
confidentiality of the Confidential Information received hereunder, utilizing at least the same standard of care
it uses to protect its own Confidential Information, but in no event less than
a reasonable standard of care. A party's Confidential Information shall not
include information that (i) is or becomes a part of the public domain through
no act or omission of the receiving party, (ii) was in the receiving party's
lawful possession prior to the disclosure, or (iii) is lawfully disclosed to
the receiving party by a third party without restriction on disclosure. If the
receiving party is required to disclose Confidential Information of the other
party to satisfy any legal requirement, the receiving party may disclose the
Confidential Information provided that the receiving party gives the disclosing
party reasonable prior notice to contest such order (to the extent legally
permitted to do so) and that the receiving party discloses only such portions
of the Confidential Information as required by such legal requirement.
b.
This Section 8 will not be deemed to prohibit Uniguest from
collecting non-personalized, aggregate usage data relating to the Systems and
using and further distributing such usage data.
9. System Security.
a.
Malicious
Code. Where applicable and to the extent available, Uniguest uses
commercially available anti-malicious code software intended to keep each
System free of Malicious Code. Customer acknowledges that no such software is
perfect, and in particular, it is difficult to protect against Malicious Code
that has not yet been detected and countered by commercial anti-malicious code
software providers. Other than using commercially reasonable efforts to keep
such anti-malicious code software up to date on each System for so long as
Customer continues to receive support for such System under the terms of this
Agreement, Uniguest assumes no obligation or liability whatsoever with respect
to any Malicious Code that may infect a System.
b.
System
Logout and Refresh. Where applicable, each System is refreshed after each
successful logout. A logout will occur after three (3) minutes of System
non-use or immediately upon a manual logout by a System user. As a part of such
refresh, temporary internet files, cookies, passwords, and any files saved by
the prior user will be deleted.
c.
Internet
Content Filter. Some Systems may include a content filter to block harmful
or objectionable content. Customer acknowledges that individuals may differ as
to what constitutes "harmful or objectionable" content. Uniguest
assumes no liability with respect to any content accessed by a System user,
including in the event a System is used to access or display content which a
user or other person finds harmful or objectionable, or that is unlawful,
obscene, scandalous or otherwise objectionable. Further, Uniguest assumes no
liability in the event such content filter blocks content and a user or other
person considers the fact that such blocking has occurred is objectionable. If
Customer would like any particular content blocked or unblocked, it may contact
Uniguest to request that the content filter be updated on Customer's Systems.
d.
Remote
System Updates. Where applicable, Systems may be updated remotely by
Uniguest to deploy new software and update existing software. In the event that such remote deployment is
ineffective or abnormally slowed, and Uniguest reasonably determines that the
cause is an issue with Customer’s software or hardware, the age of Customers
Systems including hardware and operating system components, the failure of
Customer to update the operating systems and software with releases and other
updates provided by the third party owner thereof, or other circumstances
outside Uniguest’s control, then Uniguest shall so notify Customer, and
Uniguest may discontinue the provision of support and maintenance services
until the parties agree on new support and maintenance fees to be paid as a result
of the increased effort required to maintain such Systems.
10. Intellectual Property.
Each System consists of both hardware and software, and Customer acknowledges
that, notwithstanding any other provisions of this Agreement and/or references
to any “transfer” or “assignment” of Systems in this Agreement, the title to,
and ownership of, the Uniguest Software will at all times remain with
Uniguest. Customer is hereby granted for
the duration of the term of the Agreement a non-exclusive, non-transferrable, and
non-sublicensable license to use the Uniguest Software only as delivered by
Uniguest, and where such Uniguest Software is installed on a System, solely on
the System as delivered by Uniguest. For Systems made available to the
customers or guests of Customer, such license includes the right to allow such
customers and guests to use the Uniguest Software as delivered by Uniguest, and
where such Uniguest Software is installed on a System, solely on the System as
delivered by Uniguest. Uniguest retains all copyright, patent, trademark, trade
secret and other intellectual property rights in and to the Uniguest
Software. Customer acknowledges that the
Uniguest Software, all copies of the Uniguest Software, any derivative works,
compilations, and collective works of the Uniguest Software, and any know-how
and trade secrets related to the Uniguest Software, are the sole and exclusive
property of Uniguest and contain Uniguest’s confidential and proprietary
materials. Customer will not attempt to
reverse engineer, disassemble, or decompile any portion of the Uniguest
Software. Portions of the Systems and/or the Uniguest Software may utilize or
include Third Party Materials.
Acknowledgements, licensing terms and disclaimers for such Third Party
Materials will be contained in the documentation for the Systems or the
Uniguest Software, as applicable, or may otherwise accompany such material, and
use of such material will be governed by their respective terms.
11. Miscellaneous.
a.
Replacement
Costs. Customer agrees to be liable and responsible for any loss,
damage or destruction of a System from the time it arrives at Customer’s
location and until such time as it is received by Uniguest at its facility. It
is agreed by Customer that should any such loss, damage or destruction occur at
any time during the term of this Agreement, Customer shall bear all costs of
replacement of the affected System(s). Cost of replacement shall be deemed to
be the then current price for such hardware (or repair if repairable and less
than the replacement cost) together with applicable shipping costs and taxes.
b.
Provision
of Utilities. Where applicable, Customer shall provide necessary
furniture, high-speed Internet access, electricity, and other necessary and/or
appropriate utilities and fixtures for each System and agrees to be liable for
any fault, malfunction, or loss of service due to any such utility or fixture.
c.
Assignment.
This Agreement is
assignable by Customer or Uniguest, and each agrees that the other would not
enter into this Agreement without the absolute right to assign, provided,
however, that any such assignee agrees to be bound by the terms of this
Agreement.
d.
Independent
Contractor. Uniguest is an independent contractor and nothing contained
in this Agreement will be construed to create the relationship of
employer/employee, principal and agent, partnership or joint venture, or any
other fiduciary relationship.
e.
Delivery
and Acceptance. Uniguest shall use commercially reasonable efforts to
deliver to Customer, as promptly as reasonably practicable after the Effective
Date, the applicable Products and Services set forth in the Order, in
accordance with the terms of this Agreement. Such Products and Services will be
deemed accepted by the Customer upon receipt.
f.
Choice
of Law & Venue. This Agreement shall be governed by the laws of the state
of Tennessee, without reference to its conflicts of law provisions. Any dispute
arising out of or relating to this Agreement will be resolved exclusively by
binding arbitration to be conducted in Nashville, Tennessee in accordance with
the then effective Commercial Arbitration Rules of the American Arbitration
Association (the “Rules”). Such
matter will be heard by a single arbitrator. Notwithstanding the foregoing, in
the event the matter in dispute involves claims in excess of $250,000, then
either party will be entitled to insist that a panel of three arbitrators
rather than one decide the matter. The arbitrator(s) will be selected by mutual
agreement of the parties, or if they cannot agree, in accordance with the
Rules. The decision of the arbitration will be final and binding on the parties
and may not be appealed except as the Rules may permit. Such decision may be
enforced by any court of competent jurisdiction. The prevailing party in any
such dispute will be entitled to recover its reasonable costs of arbitration,
including reasonable attorneys’ fees and expenses. The foregoing will not
prevent either party from seeking purely injunctive relief in any court of
competent jurisdiction. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. FURTHER, ANY
LITIGATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER CUSTOMER NOR
UNIGUEST MAY JOIN OR CONSOLIDATE CLAIMS IN ANY ACTION BY OR AGAINST UNIGUEST OR
OTHER UNIGUEST CUSTOMERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A
REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
g.
Entire
Agreement; Amendment; Integration; Severability.
This Agreement (which includes the Order, these Terms and Conditions, and the
attached schedules) expresses the entire understanding between the parties with
respect to the subject matter hereof, and except as otherwise set forth herein
will only be amended by written agreement of the parties. If any term or
provision of this Agreement, or the application thereof to any person or
circumstance shall, to any extent, be found invalid or unenforceable, this
Agreement shall be deemed to be amended only to the extent necessary to render
it valid and enforceable. To the extent of any conflict between the terms set
forth herein and in an Order, the terms set forth in the Order will control,
but solely with respect to such Order.
h.
Third
Party Beneficiary. This Agreement is solely between and for the benefit of
Customer and Uniguest, and no person or entity other than the parties
themselves has any rights or remedies under this Agreement.
i. Warranties. The parties warrant that the respective
individuals signing the Order on behalf of the parties hereto have the power
and are duly authorized, pursuant to the parties’ respective formative
organizational documents, to bind the respective parties to this Agreement. Customer warrants that it is duly formed and
existing as a legal entity and otherwise fully authorized to conduct business
as a legal entity in the state in which it exists, if such party is a legal
entity.
j.
Notice. For purposes of this Agreement, any notice
that may or must be delivered by one party to another shall be deemed
sufficient if made in writing and sent by certified mail or overnight courier
to, in the case of Customer, Customer’s address as set forth on the Order, and
in the case of Uniguest, as follows (or to such other address as a party may
specify in the same manner):
Uniguest
2926
Kraft Drive
Nashville,
TN 37204
Attn:
Chief Executive Officer
k.
Headings.
The section headings contained in this Agreement are for reference purposes only
and shall not affect the meaning or interpretation of this Agreement.
l.
Counterparts. This Agreement including the Order may be
executed in one or more counterparts, each of which shall be deemed to be a
duplicate original, but all of which taken together shall constitute one and
the same agreement. This Agreement
including the Order may be executed by facsimile, .PDF or other electronic
means, each of which will be deemed an original for all purposes.
Schedule A – Product and
Service Descriptions and Additional Terms
Product and Support Description. Uniguest
will provide a business center computer solution based on a pay-per-use or
hybrid offering that Customer may make available to its guests (which allows
guests to access the Internet, use standard applications, and print documents).
In addition, Uniguest provides proprietary software, 24x7 remote technical
support, and ongoing monitoring, maintenance and management of the computer
solution. Uniguest’s obligation to provide such products and services is
subject to the terms of the Agreement, including without limitation Customer’s
satisfaction of its obligations below.
Customer Requirements. Customer
will assure that its venue is fully ready for installation of the Systems prior
to scheduled installation, and failure to do so will result in the Site Not
Ready fee set forth below. Site requirements are: (1) desk, chairs and adequate
space (available 24/7); (2) No services that are competitive with the Systems
at Customer’s property; (3) reliable and at least 768K up/down Internet access,
cat5 or cat6 cables for each computer and printer, 15A 110V electrical outlets,
HVAC, public IPs for each computer & printer.
Customer will appoint
appropriate employees as key contacts (“Customer Staff”) to perform limited and
reasonable non-technical assistance, such as checking to see if cables have
been disconnected, installing toner cartridges and paper, implementing basic
workarounds, reading indicator lights, rebooting the hardware and opening
tickets with any of Customer’s 3rd party vendors as required. If Customer fails
to provide prompt assistance, then Uniguest may dispatch a technician and the
cost of such technician will be billed directly to Customer.
In the event that Uniguest
arrives onsite for a scheduled installation but the Customer’s venue is not
ready for installation, due to space, network connectivity or any other reason
outside of Uniguest’s control, Customer will pay a $500 site-not-ready fee plus
additional travel expenses incurred; provided, however, that no such fee shall
apply if Customer provides not less than three (3) business days notice of
cancellation of such scheduled installation date.
On-site Installation and Support. The
terms in this Section apply only to the extent Customer has purchased on-site
installation or support services. In such event, Customer agrees to provide
Uniguest personnel complimentary accommodations during the installation of the
applicable Products and during any time periods Uniguest has personnel on-site
to perform any upgrades, modifications, or other services related to the
Products.
PPU Systems. The terms in this Section
apply only to pay-per-use Systems, i.e. any System where a user is required to
pay a fee to use such System (“PPU Systems”). All fees paid by an end user of a
PPU System are nonrefundable unless otherwise agreed by Uniguest on a
case-by-case basis.
For so long as Customer has
any PPU System installed at its property, Customer shall not install or
otherwise make available to any customer or guest of Customer any system that
is the same or similar to that of the PPU System or that provides comparable
functionality.
All Third Party Materials and
Third Party Services are to be paid by the Customer, either directly by
customer, or by way of reduction of the Customers’ Revenue Share payment. Additionally, any PMS integration fees,
including set up and monthly recurring charges, will be paid by the Customer,
either directly by customer, or by way of reduction of the Customers’ Revenue
Share payment.
MDM Management & Enrollment Programs:
For any Uniguest tablet or mobile device solution, the use of a Mobile Device
Management (MDM) program may be required by Uniguest or the applicable hardware
manufacturer. In this case, Uniguest
would enroll and manage customer owned devices under the Uniguest name in such
MDM program, and support same through the term of service. Upon termination of this agreement, third
party vendors and/or hardware manufacturers may require the de-enrollment of
customer’s device, and may not be eligible for re-enrollment in the applicable
MDM program.
Microsoft Rental Rights Licenses. The
terms in this Section apply only to Systems operating Microsoft Windows desktop
operating systems or Microsoft Office software. The Rental Rights license is
required by Microsoft when organizations, as part of their businesses, rent,
lease, or loan PCs with licensed, qualifying versions of Windows desktop
operating systems or Microsoft Office software to third parties. Examples of
these organizations include Internet cafés, hotels and airport kiosks, business
service centers, and office equipment leasing companies (even when Systems are
offered to guests free of charge). Rental Rights modify the use rights of the
underlying Microsoft licenses to allow renting or leasing of the software,
which is generally prohibited under the standard license terms for those
products. Rental Rights are user rights only and do not replace the underlying Microsoft
product licenses. Rental rights licenses are good for the life of the System,
are non-transferrable, and may be purchased through Uniguest for the prices set
forth in the Uniguest Customer Order. Uniguest will handle the procurement and
activation of the licenses for a nominal fee of $25 plus the cost of the license
for each System requiring a Rental Rights license. A separate Rental Rights
license is required for the Microsoft Windows operating system and Microsoft
Office software for Systems with both installed.
Schedule B – Maintenance
and Support Policies and Procedures
Uniguest will maintain uptime of each System,
software-protect each System (where applicable), and fix and/or replace
hardware in accordance with the following maintenance and support policies and
procedures. Customer and Uniguest will work together to resolve problems and
utilize the most cost-effective solution to resolving issues that arise out of
the scope of these policies and procedures. Both parties understand that
electronic hardware can be delicate pieces of equipment, especially in a public
environment, and newly discovered issues can happen at any time. If something
is not covered in this section, both parties will work together to determine
the most timely and cost-effective method to resolve it.
SERVICE SUPPORT
DETAIL
1. For each service call, Customer or user
shall notify Uniguest via a Uniguest-provided toll-free number or email of any
malfunction or loss of System service.
2. Uniguest shall have technicians
available 24/7/365 by phone, email and/or online chat application.
3. At the time of service call, Customer
agrees that it shall have a designated staff member who will be onsite at the
location of System to remotely troubleshoot System with Uniguest technician
over the phone.
4. In the event that Customer’s ISP
service is determined by Uniguest to have been the cause of any service issue,
Uniguest will assist Customer, via telephone or other means, at Uniguest’s
discretion, in working with such ISP to resolve the problem, and Uniguest may
charge Customer a fee in the amount of $69.
5. Should remote troubleshooting not be
sufficient to fix the problem, Uniguest may deem it necessary to have the
equipment returned to Uniguest for further diagnosis and repair as defined in
the “Hardware Repair Program” below. Customer is responsible for paying a
diagnostics fee to Uniguest to investigate the issue.
HARDWARE REPAIR PROGRAM
In those instances where Uniguest determines the System’s
equipment (or a component thereof) cannot be repaired remotely, the Parties
agree to the following:
1.
Customer will ship the defective System
or component thereof (the “Defective Equipment”), at Customer’s expense, to
Uniguest for further evaluation and/or diagnostics.
(a)
Customer will be responsible for any
loss or damage during shipping to the extent not covered by shipping insurance.
(b)
If damage is caused by the shipping
company mishandling the Defective Equipment, then Uniguest will work with the
shipper to handle a damage claim.
(c)
If the returned equipment is damaged
due to improper packing, then the Customer will be notified and it will be
Customer’s responsibility to pay for repairs due to such damage.
2.
Uniguest does not provide any warranty
on Third Party Materials, but will facilitate warranty claims on behalf of
Customer under warranties provided by manufacturers, suppliers or publishers of
Third Party Materials. Uniguest will
also assist Customer in the determination as to whether the Defective Equipment
is or isn’t covered by warranty.
(a)
If the assessment determines the issue
was due to destruction or vandalism, then the repair cannot take place under
warranty and any repairs or replacement will be at the Customer’s expense. In such case, payment for repairs or
replacement, as applicable, will be billed prior to the repair or replacement
of the Defective Equipment.
3.
Uniguest will provide Customer with a
quote to repair, if practical, or a recommendation to replace the Defective
Equipment. It will be the Customer’s responsibility to select and approve the
desired path as between repair or replacement.
4.
If the Defective Equipment to be
repaired or replaced is not under warranty, Customer will be responsible for
expenses associated with the repair or replacement.
(a)
Uniguest will review the diagnosis and
quote for repair or replacement with Customer for pre-approval;
(b)
If approved, Uniguest will invoice
Customer for the cost of repair, and upon payment, Uniguest will carry out the
repair or replacement, as applicable;
(c)
Non-warranty repairs will incur repair
charges as follows:
i. Labor up to $125 per hour
ii. Parts at Uniguest’s actual cost plus 30%. Only manufacturer
parts will be used.
iii. If repairs require the Defective Equipment be shipped to
manufacturer for depot service, then additional costs may apply and vary
(includes time and material).
(d)
If not approved, the unit will not be
repaired or replaced, and Uniguest and Customer may discuss any alternatives.
i. Uniguest will return unrepaired Defective Equipment upon
Customer’s request, at Customer’s expense.
ii. Otherwise, the Defective Equipment will be recycled after 30
days, and Customer will not receive a credit for the value of any such
Defective Equipment.
(e)
Customer acknowledges that repair times
will be partially determined by parts availability from manufacturer.
(f)
Shipping terms – ground each way (which
may include up to 4 shipments in the event a temporary replacement machine is
provided) all 50 states, at Customer’s expense.
5.
Should the equipment to be repaired or
replaced be under warranty, warranty work will be based on the defined
manufacturer’s or provider’s warranty associated with the Third Party Material.
6.
Temporary Replacement Machines.
Customer may at its option, and subject to Uniguest having available inventory,
request that a temporary replacement machine be provided while Customer’s
Defective Equipment is being repaired. The cost of such a temporary replacement
machine is $50 plus shipping (both ways) for up to two weeks, and $10 for each
additional week (inclusive of shipping time). Customer will be responsible for
any damage to such machine while in transit to and from Customer and while in
its possession. Customer will return such temporary replacement machine in the
same condition as provided, normal wear and tear excepted. Uniguest reserves
the right to determine the specifications of any temporary replacement machine,
including whether such machine is new or used.
B.
INTERNATIONAL WARRANTY EXECUTIONS (APPLICABLE TO ALL PRODUCTS)
Due to variations in equipment manufacturer
support and product availability and warranty terms, Customer is advised of the
possibility of varying levels of warranty services in certain remote regions of
the world where access to property and hardware may fall outside of the
prescribed break fix service levels provided by the hardware manufacturers. As
a result of these factors, which are outside the control of Uniguest, the
policies and procedures above shall not be binding on Uniguest for any Customer
not located in the United States of America or Canada or where Uniguest is
unable to fulfill such policies or procedures due to limitations imposed by
such hardware manufacturers. Uniguest will make commercially reasonable efforts
to inform the Customer of any warranty variations from the foregoing terms that
may be applicable to it and facilitate manufacturer break fix efforts on behalf
of the Customer. Customer understands that Uniguest is acting in good faith but
support response is a function of the applicable manufacturer and its local
subsidiaries and affiliates.