UNIGUEST STANDARD TERMS AND CONDITIONS

Version Effective December 18, 2020

 

By executing the Uniguest Customer Order (an “Order”) to which these Uniguest Standard Terms and Conditions (the “Terms”) are attached, or otherwise agreeing to be bound hereby (e.g., by accepting such Terms upon renewal), 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 or otherwise provided to you (the “Products and Services”) by U.S. Hospitality Publishers, Inc., a Tennessee corporation, doing business as Uniguest, Inc. (“Uniguest”), and that these Terms together with any Order constitute a binding contract between you and Uniguest.

1.      Definitions.

  1. Agreement” means these Terms together with any Order and each of the attached schedules.
  2. 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. If there is no Order (e.g., where Customer has accepted these terms in connection with a renewal), Customer’s first annual renewal date following the version effective date noted above, as reflected in Uniguest’s records, will be the Effective Date.
  3. 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. If there is no Order (e.g., where Customer has accepted these terms in connection with a renewal), Initial Term means the one-year period beginning on the Effective Date.
  4. 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.
  5. 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. 
  6. “Additional Charges or Fees” means the charges not included in the Support Services Charge for a Site undertaken on a time-and-materials basis at our standard rates from time to time, including Out of Hours Support, Site Visit Charge Rates and engineering time for upgrades.
  7. “Hardware” means hardware equipment, devices, accessories, and parts delivered by Uniguest hereunder, including firmware incorporated therein.
  8. “Uniguest Software” means software licensed by Uniguest to Customer hereunder, including updates, modifications, design data, and all copies thereof. Software includes associated APIs, as well as scripts, toolkits, libraries, reference or sample code, and similar materials.
  9. “System” means, as the context may dictate, the combined solution provided by Uniguest Software and Hardware, included in the Products and Services, and provided to Customer.
  10. “Products” means Software, Hardware, and Documentation.
  11. “Maintenance Services” means System maintenance, enhancement, and technical support services provided by Uniguest.
  12. “Professional Services” means training, consulting, engineering, or other professional services provided hereunder by or on behalf of Uniguest, typically pursuant to a statement of work (SOW).
  13. “Services” means Maintenance Services and Professional Services.
  14. “Order” means an order form (Order Form), statement of work (SOW), or similar ordering document that (i) incorporates the terms of this Agreement and sets forth the Products and Services ordered by Customer and any associated fees and (ii) has been agreed by manual or electronic signatures of both parties or agreed through an electronic system specified by Uniguest. In the electronic system, Customer will be prompted to accept by clicking a button.
  15. “Uniguest IP” means all patents, copyrights, trade secrets, and other intellectual property rights in or related to Products or Services.
  16. “Supplemental Terms” means those separate terms and conditions that apply to Products or Services as attached hereto, set forth or referenced in an Order, or otherwise agreed by the parties.
  17. “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.

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 B-XXXX as appropriate.

3.      Term and Termination.

  1. Renewal. Unless terminated in accordance with Section 3.b below, the Agreement will continue in effect for the Term of 12 Months; the Agreement will continue in effect and automatically renew annually on each anniversary of the Effective Date until either party terminates this Agreement in accordance with Section 3.b below.
  2. Termination.
    1. 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.
    2. 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.
  3. 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.b.i and 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.

  1. Fees. Customer will pay the amounts set forth in the Order for the Products and Services (or if there is no Order, the amounts payable under Customer’s prior agreement with Uniguest). 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, or if there is no Order, upon each anniversary of the Effective Date.
  2. 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 Any such increase will be reflected on Customer’s next recurring charge following the effective date of any such increase.
  3. Third Party Materials. Prices for Third Party Materials are subject to change without prior notice and are not subject to the foregoing percentage limit on increase as defined in Section 4.b.
  4. 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.
  5. 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 (i) remotely deactivate and lock any hardware or software, to which the delinquent payment relates and/or (ii) 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.
  6. 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.
  7. Title to Hardware and Equipment. 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 which is leased or 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.
    1. The provisions of clause g. above are not intended to grant Uniguest any greater rights in respect of the hardware or equipment that is the subject of clause g. 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 shall have perfected a purchase money security interest in such hardware or equipment in accordance with Article 9 of the Uniform Commercial Code).
    2. Once purchased, hardware and equipment may not be returned for a refund.
  8. 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 and Software 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.
  9. Installation Rescheduling Fee. If your account has an activation or installation that is rescheduled more than two times, Uniguest reserves a right to charge a $50 rescheduling fee.

5.      Maintenance and Support Services. 

Schedule A 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). Uniguest reserves the right to assess a legacy fee in addition to its standard managed services fees on any hardware older than 4 years old.

6.      Disclaimer of Warranties.

  1. 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.
  2. 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 services and fee received by Uniguest from customer under this agreement with the three (3) months preceding the assertion of any claim. Any recurring fees paid annually will be prorated over such three (3) month period and included for purposes of determining the aggregate limitation of liability for purposes of the foregoing sentence.

8. Indemnification.

a. Each party agrees to indemnify, defend and hold the other party and its affiliates and each of their respective officers, directors, agents, employees, successors and assigns harmless from and against any and all third-party suits, claims, liabilities, judgments, expenses (including reasonable attorneys’ fees and court costs), damages, losses or injuries arising from its (i) respective willful, reckless, or negligent act or omission; and (ii) breach of this Agreement. Uniguest agrees to indemnify, defend, and hold harmless Customer and Customer’s affiliates and their respective officers, directors, agents, employees, successors and assigns from and against any third-party claim that the Products and Services infringe a copyright, trademark, United States patent, or misappropriate a trade secret of a third party, except to the extent any such claim arises from the combination of any such Products and Services with any hardware, software or other technology or material not provided by Uniguest or approved for use with the Products and Services by Uniguest in writing.

b. The foregoing notwithstanding, (i) Uniguest will not be required to provide indemnity for any third party hardware or software provided as part of the Products and Services in excess of any indemnity actually provided to Uniguest by, in the case of third party hardware, such hardware’s original equipment manufacturer or distributor, and in the case of third party software, such software’s original licensor or distributor (provided Uniguest will take commercially reasonable efforts to pursue any such indemnity to the extent available under its agreements with such third parties) and (ii) in no event shall a party be liable to the other for consequential or exemplary damages, including lost profits.

c. A party seeking indemnification hereunder with respect to any claim will provide prompt written notice of such claim to the indemnifying party, permit the indemnifying party to assume the defense and settlement of any such claim, and cooperate in the defense of any such claim. Notwithstanding the foregoing, no settlement may be entered into without the written consent of the indemnified party, such consent not to be unreasonably conditioned, withheld or delayed.

9.         Insurance.

Throughout the term of this Agreement, Uniguest shall procure and maintain insurance against claims for injury to persons or damage to property which may arise from or in connection with the performance of the work hereunder by Uniguest, its agents, representatives, employees or subcontractors.

The insurance requirements herein are minimum requirements for this Agreement and in no way limit the indemnity provisions contained in this Agreement.  Customer in no way warrants that the minimum limits contained herein are sufficient to protect Uniguest from liabilities that might arise out of the performance of the work under the Agreement by Uniguest, its agents, representatives, employees or subcontractors and Uniguest is free to purchase additional insurance as may be determined necessary. 

Throughout the term of this Agreement, Uniguest shall provide coverage with limits of liability not less than those stated below.   An excess liability policy or umbrella policy may be used to meet the minimum liability requirements provided that coverage is written on a “following form” basis.

a. Workers’ Compensation in accordance with the workers’ compensation laws of the state(s) in which the Services are being performed.  In addition, Uniguest must carry Employers’ Liability Insurance of $500,000 for each accident, disease policy limit, and disease-each employee.

b. Commercial General Liability with a minimum limit of $1,000,000 per occurrence and $2,000,000 aggregate to include products and completed operations, personal and advertising injury, contractual liability, and broad form property damage.

c. Commercial Auto Liability, if Uniguest’s work involves use of vehicles in performance of work or services, with a minimum limit of$1,000,000 combined single limit per occurrence.  Coverage should include any auto, including non-owned and hired autos, which will be used in performance of work or services.

d. Umbrella (Excess) Liability with a minimum limit of $4,000,000 per occurrence.   (Note:  If Umbrella or Excess Liability Insurance is not carried, then the underlying General Liability and Auto Liability each must reflect per occurrence limits of $4,000,000 instead of $1,000,000.)

e. Professional Liability (Errors and Omissions Liability) including Cyber Liability (Network Security and Privacy Liability) with a minimum limit of $2,000,000 per occurrence or per claim.  The policy shall cover professional misconduct or lack of ordinary skill for those positions defined in the scope of services of this contract.  The insurance shall provide coverage for the following risks:

1. Liability arising from theft, dissemination and / or use of confidential information (a defined term including but not limited to bank account, credit card account, personal information such as name, address, social security numbers, etc. information) stored or transmitted in electronic form,

2. Network Security Liability arising from the unauthorized access to, use of or tampering with computer systems including hacker attacks, ability of an unauthorized third party to gain access to your services including denial of service, unless caused by a mechanical or electrical failure and 

3.  Liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer’s or third person’s computer, computer system, network or similar computer related property and the data, software, and programs thereon.  

The above insurance coverages shall be placed with insurers that are authorized to do business in the state(s) where the Services are being performed and with insurers that have at least an A-VII A.M. Best rating.  Except for E&O/Cyber Liability, the above insurance coverages shall also provide for a waiver of subrogation in favor of the Customer and its affiliated indemnified parties for losses arising from the work performed by Uniguest.  Each of the above coverages shall be on a primary and non-contributory basis and, except for workers’ compensation, employers’ liability insurance, and E&O/Cyber Liability, shall name Customer and is affiliated indemnified parties as additional insureds.  All of the above insurance shall be in force prior to the commencement of any services being performed and must be maintained without any lapse throughout the duration of the Agreement and during the period when any services are being performed.  Uniguest shall furnish Certificate(s) of Insurance and any renewal thereof reflecting all of the above coverages, the required additional insured language, and a provision providing for at least thirty (30) days’ prior notice of cancellation or non-renewal.  

The obligations of this Section 9 shall survive the expiration, termination, or cancellation of this Agreement to the greatest extent permitted by law.

8.      Confidentiality.

  1. 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"). 
    1. 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. 
    2. 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.
  2. 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.

  1. 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.
  2. 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. 

Software is licensed for the hardware on which it is originally installed and may not be transferred. Hardware that is replaced requires new software licenses and payment of the then applicable license fees. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. Delivery and Acceptance. Uniguest shall use commercially reasonable shipping efforts to deliver to Customer, as promptly as reasonably practicable after the Effective Date, the applicable Products and Services, in accordance with the terms of this Agreement. Such Products and Services will be deemed accepted by the Customer upon shipping.
  6. 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.
  7. Entire Agreement; Amendment; Integration; Severability. This Agreement 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.
  8. 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.
  9. Warranties.  The parties warrant that the respective individuals signing the Order on behalf of the parties hereto or executing any other document acknowledging such party’s acceptance of these Terms 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.
  10. 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, Inc.

2926 Kraft Drive

Nashville, TN 37204

Attn: Chief Executive Officer

  1. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 
  2. Counterparts.  This Agreement 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 may be executed by facsimile, .PDF or other electronic means, each of which will be deemed an original for all purposes.

Schedule A – Maintenance and Support Policies and Procedures

Product and Support Description. Uniguest will provide Uniguest Software, Systems and Services upon customer request, in addition, Uniguest provides 24x7x365 remote technical support and ongoing monitoring, maintenance and management of the provided solutions. 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. All Product support will be in accordance with and based on the Standard Service Level Agreement contained in Section D.  

  1. Customer Requirements. If 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.
  2. 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.

Uniguest will maintain uptime of each System – protect each System (where applicable), and fix and/or replace hardware in accordance with the following maintenance and support policies and procedures. Uniguest will always use reasonable endeavors to make the service available to you and the users, but we cannot guarantee an uninterrupted or fault free service. 

Uniguests’ ability to provide our systems or services may be impaired by conditions or circumstances that are beyond our control, including, without limitation third party service providers, geographic or atmospheric conditions, local physical obstructions, software and hardware features or functionality of your personal computer, operating system and the number of other users logging onto our service, server and/or Network at the same time. Uniguest will take reasonable actions to minimize the disruption caused by such circumstances, but you acknowledge, agree, and accept that some such interruptions may not be avoidable and outside of Uniguest control.

The Network is not controlled by Uniguest and may from time to time be upgraded, modified, subject to maintenance work or otherwise amended by the owner of the Network. Such circumstances may result in the Service being temporarily unavailable. We will take reasonable action to minimize the disruption caused by such circumstances, but some such interruptions may not be avoidable.

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.

A.     SUPPORT SERVICES - STANDARD OPTION

SUPPORT SERVICES DETAIL

1.       For each service call, Customer or user shall notify Uniguest via a Uniguest-provided toll-free number, support chat service 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 $75.

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.

 

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.
  1. Customer will be responsible for any loss or damage during shipping to the extent not covered by shipping insurance.
  2. If damage is caused by the shipping company mishandling the Defective Equipment, then Uniguest will work with the shipper to handle a damage claim.
  3. 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.
    1. 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 is not covered by warranty.
      1. 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.
        1. 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.
        2. 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.
  1. Non-warranty repairs will incur repair charges as follows: 
    1. Labor up to $125 per hour Parts at Uniguest’s actual cost plus 30%. Only manufacturer parts will be used.
    2. If repairs require the Defective Equipment be shipped to manufacturer for depot service, then additional costs may apply and vary (includes time and material).

    1. If not approved, the unit will not be repaired or replaced, and Uniguest and Customer may discuss any alternatives.
    2. Uniguest will return unrepaired Defective Equipment upon Customer’s request, at Customer’s expense.
    3. 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. 
      1. Customer acknowledges that repair times will be partially determined by parts availability from manufacturer.
      2. Shipping terms – ground each way (which may include up to 4 shipments in the event a temporary replacement machine is provided) within all 50 states, will be at Customer’s expense.
  1. 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.
  2. Temporary Replacement Hardware. 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. In the event the temporary computer is not returned to Uniguest within 90 days, Customer may be billed the full System replacement cost.

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.

C.      SERVICE LEVEL AGREEMENT 

Uniguest shall provide the Annual Maintenance and Support for Uniguest Systems and Software in accordance with the following service levels: 

  1. Uniguest will supply Tier 1 through 3 services for Uniguest Software in accordance with standard support Tiering.  
  2. Uniguest will provide service and support of the Uniguest core security software, interfaces and proprietary Uniguest systems or solutions. Uniguest will provide basic support or may operate as an intermediary on behalf of customer for issues not related to Uniguest solutions, such as Internet Services.
  3. For each service call, the End User shall notify Uniguest via a Uniguest-provided toll-free number, chat, or email in English only of any malfunction or loss of service for the Uniguest Software. 
  4. Uniguest shall have technicians available 24/7/365.  In the event of high call volume, Uniguest guarantees a 24-hour maximum response time. 
  5. At time of each service call, End User shall have a designated staff member who will be onsite at the location of the Uniguest Software to remotely troubleshoot the Uniguest Software with a Uniguest technician over the phone. 
  6. Should remote troubleshooting not be sufficient to fix problem, Uniguest may determine that a “PC Swap” might need to be exercised.   Uniguest will inform End User they will need to initiate a warranty execution or hardware swap dependent upon the assets deployed. 
  7. In the event that ISP service is the cause of any service issue, Uniguest will assist, via telephone or other means, at Uniguest’s discretion, End User in working with the ISP to resolve the problem. 
  8. Uniguest will use commercially reasonable efforts to investigate problems reported by End User.  Subject to the exceptions set forth in section 8 below, if Uniguest determines that the problem is the result of a reproducible error, defect, or malfunction in the Uniguest Software, Uniguest will make reasonable efforts to correct the problem.  A Uniguest representative will provide End User with a correction, a report/determination that further research is required, or confirmation that the system works per design specifications. 
  9. If a reproducible error is not correctable, then a correction for the error will be incorporated in the next release or update of the Uniguest Software, if practical. 
  10. The following services are not covered by this SLA: 
  1. Maintenance of facilities external to the Uniguest Software, Systems or Services; hardware support; questions regarding hardware installation, support or maintenance, telecommunications systems. 
  2. Repair or damage resulting from malfunction of electrical power or heating, ventilation and air conditioning; water damage; fire damage; theft; integration of the Uniguest Software with non-compatible systems or software; misuse or improper use of the Uniguest Software (including without limitation any use not specifically authorized in the agreement or any related documentation); vandalism; civil commotion or war; or any combination thereof. 
  3. Support for altered or modified Uniguest Software, other than that altered or modified by Uniguest and/or authorized agents of Uniguest; support for versions of the Uniguest Software that have been superseded by a new release (provided that Uniguest will continue to support superseded versions for a reasonable period, not to exceed 45 days). 
  4. Supervision of repairs on associated equipment. 
  5. Services including programming, graphic design, media encoding, training, etc. 
  1. Uniguest reserves the right to charge for unusual or excessive telephone, shipping, handling, media or user manual expenses in connection with the support to be provided hereunder.  In all cases, Uniguest will notify End User of these costs in advance.
  2. Availability of the Uniguest Software.  The Products and Services will have a Monthly Availability Percentage of at least 99.80%. Uniguest Products and Services rely on customers network and ISP to be configured correctly and functioning.

  

Schedule B – Public Use Computing Product and Service Descriptions and Additional Terms

Product and Support Description. Uniguest will provide a hardware solution based on a free-to-guest offering that Customer may make available to its guests (which allows guests to access the Internet, use standard applications, and print documents). Should an equipment substitution be required, Uniguest will provide a hardware solution that is comparable in performance and appearance. In addition, Uniguest provides proprietary software, 24x7 remote technical support, and ongoing monitoring, maintenance, and management of the product. 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. As applicable, 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 1.5M up/down Internet access, cat5 or cat6 cables for each product or solution delivered, appropriate and adequate electrical outlets, HVAC, and IP addresses for each computer & printer. IP addresses must be private and not available from the public Internet.

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.

In the event that Uniguest attempts to remotely activate or install Customer’s system at a pre-scheduled remote installation time, 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 may be charged and will be required to pay a $50 rescheduling fee. No such fee shall apply if Customer provides not less than three (3) business days’ notice of cancellation of such scheduled installation date or time.

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.

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.

System Logout and Refresh. Where applicable, each System is refreshed after each successful logout. A logout will occur after three (3) minutes (or a different length of time set forth by the Customer) 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.

Internet Content Filter. Where applicable, 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. 

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 $50 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 C – Digital Signage Product and Service Descriptions and Additional Terms

Product and Service Description. Uniguest will provide a hardware and software System including the associated displays. Digital signage consists of the display of different digital media such as cable/satellite feeds, webpages, images, live streams, DVD material, or PowerPoint slides. Should an equipment substitution be required, Uniguest will provide a hardware solution that is comparable in performance and appearance. In addition, Uniguest provides proprietary software and hardware, 24x7 remote technical support, and ongoing monitoring, maintenance, and management of the product. 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. As applicable, site requirements are: (1) location staging and preparation as defined in Scope of Work (SOW); (2) No services that are competitive with the Systems at Customer’s property; (3) reliable and at least 1.5M up/down Internet access, cat5 or cat6 cables for each product or solution delivered, appropriate and adequate electrical outlets, HVAC, and IP addresses for each hardware component. IP addresses must be private and not available from the public Internet.

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, 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.

In the event that Uniguest attempts to remotely activate or install Customer’s system at a pre-scheduled remote installation time, 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 may be charged and will be required to pay a $50 rescheduling fee. No such fee shall apply if Customer provides not less than three (3) business days’ notice of cancellation of such scheduled installation date or time.

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.

Ownership of Content. We do not claim ownership or intellectual property rights of any content that you upload or may host through the Service but you grant us a license to distribute it to devices registered to the associated signage account(s) or displays. When you upload content (including all media types such as images, movies, audio, fonts, html, swf etc) that is covered by intellectual property rights on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, license to host, distribute, modify or display that content to devices registered to the associated signage account(s). 

By uploading content to the Uniguest Content Services you agree that you have all legally required and appropriate licenses, rights and permissions to use, share and distribute the content. We accept no responsibility or liability for the misrepresentation, misuse, theft, unlawful use or exploitation of content, intellectual property, trademarks or personal data you use through the Service.

We accept no liability or responsibility for any damage caused, be it indirect, special, incidental or consequential damages (including but not limited to damages for loss of business, loss of profits, interruption or the like) by your uploading, hosting or distribution of content through the Uniguest Content Services.

Uniguest does not own any data, information or material (including, without limitation, third-party audio, video or Internet sources or material) that you submit to or access through the Service in the course of using the Service (“Customer Data”). You, not Uniguest, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Uniguest shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, unless such deletion, correction, destruction, damage, loss or failure is due to Uniguest’s actions or inactions, including but not limited to server failure, in which case Uniguest’s liability, if any, shall be governed by the terms hereof.

Customer Content. The Software enables Customers to store and manage content for display on multiple video displays or monitors, including text, graphics, photographs, video, data feeds, and other digital media (the “Customer Content”). Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to the use of Customer Content. Customer grants Uniguest a royalty-free, worldwide, non-exclusive right and license under these Terms to use, copy, and process the Customer Content as necessary to provide the Software functionality and perform its other obligations under these Terms.

Uniguest shall make reasonable commercial efforts to secure, protect, and maintain the integrity of the Customer Content. Customer and Users are responsible for maintaining the confidentiality of all usernames and passwords required to access and use the Software. If the confidentiality of such information is compromised, Customer shall promptly notify Uniguest.

Customer Content Standards. All Customer Content shall comply with the following standards, and with all applicable federal, state, local, and international laws and regulations. Each Customer represents, warrants, and agrees as follows:

(a) Customer owns or has secured all intellectual property rights necessary for Customer’s use of the Customer Content with the Software as intended. 

(b) Customer’s use of Customer Content with the Software, and the Customer Content itself, does not and will not infringe any patent, trademark, trade secret, copyright, other intellectual property rights, or other legal rights of any other person.

(c) The Customer Content does not and will not contain any content or material that is unlawful, threatening, harassing, profane, obscene, indecent, abusive, tortuous, defamatory, libelous, deceptive, fraudulent, or that violates a person’s privacy, or publicity rights. 

(d) The Customer Content does not and will not promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.

(e) The Customer Content will not promote or assist in any illegal or unlawful acts; and

(f) The Customer Content does not and will not contain a software virus or other harmful component.

Statistical Data.  Uniguest may monitor Customer’s use of the Software to collect and process anonymous, statistical, and performance information related to the Software in aggregate form (“Statistical Data”). Uniguest will have an unrestricted right to store, analyze, evaluate, and use the Statistical Data for its own internal business purposes, including improving the features, performance, and functionality of the Software. Uniguest warrants and agrees that the Statistical Data shall not include any information which identifies or can be attributed to a Customer, or any personally identifiable information. Uniguest’s collection and processing of personal data will be in compliance with the Uniguest Privacy Policy.