Please read this document carefully as it contains the legal terms and conditions which you may accept as set forth below.
1. DURATION; TERMINATION
1.1 Client subscribes to STR Reports selected above for a period of twelve (12) months, commencing on the date this agreement is received and processed, ending on the expiration date (the “Initial Term”). Client shall receive the first Report in its subscription within 30 days of STR's receipt of this Agreement. Unless earlier terminated in accordance with sections 1.2 and 1.3 below, the Agreement shall automatically renew upon the expiration of the Initial Term for successive twelve (12) month terms ("Renewal Terms" and, collectively with the Initial Term, the "Term"), subject to the Parties' reaching a mutual written agreement to adjust the Client's fee or, if applicable, to amend any of the terms and conditions of this Agreement.
1.2 If at any time either Party determines that it does not wish to continue the agreement for any reason, the terminating Party shall provide 30 days written notice to the other Party of its decision to terminate. However, any Fee or portion of a Fee that may be due and payable to STR shall be paid.
1.3 In addition, either Party may terminate the Agreement immediately, without notice, for the following reasons: (a) Client is in default of payment, as stated in section 4.2 below; (b) either Party commits a material breach any of the terms of this Agreement; or (c) a petition is filed against a Party, or a Party files a petition, under any provision of the Bankruptcy Code or amendments thereto, or a Party files any petition or action under any reorganization, insolvency or debt moratorium law or any other law or laws for the relief of or relating to debtors, or if a receiver is appointed for a Party or any of its property and said petition or appointment shall remain unvacated for a period of thirty (30) days, or if a Party takes any corporate action to initiate any of the foregoing.
2. DELIVERY OF REPORTS; SUBMISSION OF CLIENT DATA
2.1 Client shall submit its "raw" monthly hotel performance data to STR by the 10th day of the month in order to receive a STAR Report for the previous month. Client's "raw" daily hotel performance data shall be submitted to STR by 12 noon (CST) each Tuesday to receive Weekly STAR and Segmentation Reports for the prior week. Daily data shall be submitted to STR by 10:30 a.m. (CST) to receive a Daily STAR Report for the prior day. All "raw" hotel performance data submitted by Client under this Agreement shall be referred to herein as "Hotel Data."
2.2 STR will email or mail to CLIENT 12 Monthly Reports on or about the last day of each month during the contract year.
2.3 STR is not under any obligation to produce Report if Client's Hotel Data is not received prior to the deadlines. If a Report is required even though the data was late, a processing fee of $75 will be assessed to generate a current Report.
2.4 Client shall complete the attached in order to establish Client's Competitive Set (Selected Competitors), or those properties whose performance will be compared against CLIENT'S performance each month, each week (if competitor is a Weekly STAR participant) and each day (if competitor is a Daily STAR participant.)
2.5 STR does not guarantee that the data will be received every month, week or day from every Selected Competitor even if the Selected Competitor has agreed to participate in the survey.
3. USE OF, RIGHTS IN AND CONFIDENTIALITY OF HOTEL DATA AND REPORTS
3.1 The Parties’ respective “raw” Hotel Data, aggregated Hotel Data, Reports, other aggregated and/or processed data, financial information and any other information provided by one Party to another under this Agreement constitutes the disclosing Party’s trade secrets, confidential and proprietary information that is non-public in nature and is of competitive value to each Party (“Confidential Information”) and shall not be disclosed to any third parties unless expressly permitted in this Agreement or by written consent of the non-disclosing Party. Neither party obtains title to or an ownership interest in the other Party’s Confidential Information. Confidential Information shall be confidential, irrespective of whether it is expressly designated so, including all STR data which is automatically confidential, whether before or after the effective date of this Agreement. Each Party will use the same means as it uses to protect its own confidential information, but in any event no less than reasonable means, to protect Confidential Information.
3.2 Client may copy, distribute or reproduce STR’s Confidential Information and the data contained therein only to its employees, agents, representatives, owners, management companies and/or franchisees, who have a need to know the information contained in the Reports for the purpose of Client’s internal business operations and who have a duty to keep it confidential, as well as Client’s legal, tax or other professional advisors (hereinafter all “Permitted Users”). Software providers, on-line travel agencies, revenue management consultants and other similar third parties shall not be considered “Permitted Users.”Unless Client has obtained STR’s express written consent, which shall be set forth in a separate agreement, Client shall NOT share STR Confidential Information with any such third party which is not a Permitted User, nor shall any such party be added to any STR Distribution List (defined below) or given log-in access to the STR website Client shall be liable for any breach of confidentiality by these users. Client may also disclose STR’s Confidential Information, in whole or in part, in external presentations, advertising or marketing materials, only upon obtaining STR’s prior consent, which shall not be unreasonably withheld or delayed. And and all copies of any Report that is made, copied or reproduced by you must reproduce the following notice "Source: STR, Inc. 20__") Client will notify STR, in writing, of any violations to this provision within ten (10) days after it becomes aware of such violation.
3.3 STR may disclose Client Confidential Information to its employees, agents, associated companies and sub-contractors who have a need to know such information for the purposes of STR’s business operations and who are under a duty to keep the information confidential. More particularly, with regard to Client’s “raw” Hotel Data, STR will aggregate any such Data with equivalent data provided to it by the other hotels (each of which participate in the Survey) in the applicable competitor set, or other market level aggregates, and made available to that participant in that aggregated format. STR also reserves the right to use and reproduce aggregate portions of Client’s “raw” Hotel Data in its monthly, weekly and daily publications. However, except for where STR may identify Client among all of those hotels that provided data for a report (“Participation List”), nowhere in those reports or publications shall any of Client’s data be directly or indirectly attributed to or associated with Client. STR may also make certain Client Confidential Information available to those management companies which are affiliated with Client in the form of Reports, including, but not limited to, STAR Reports.
3.4 Nothing stated in this Agreement will prevent either party from disclosing the other party’s Confidential Information which is (i) already known by the recipient party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the recipient party; (iii) rightfully received from a third party; (iv) independently developed; (v) disclosed without similar restrictions to a third party by the party owning the confidential information; (vi) approved by the other party for disclosure; or (vii) required to be disclosed pursuant to a requirement of a governmental agency or law so long as the Party being compelled to disclose notifies the other Party within a time period reasonable enough to allow the other Party an opportunity to object to the disclosure.
3.5 The confidentiality provisions set out in this section shall survive the termination of this Agreement for any reason whatsoever.
4. GENERAL PROVISIONS.
4.1 Warranties, Exclusions; Disclaimers; Indemnity
4.1.1 Client acknowledges that Reports are generated from information received through independent surveys and research from sources considered reliable in the hotel and motel industry. STR uses its best efforts to insure the information contained in its Reports, including the aggregated data therein, is accurate and complete. However, STR has no control over and takes no responsibility for the accuracy and validity of the “raw” hotel data provided by Hotel Chains and Properties for its Reports. EACH REPORT IS PROVIDED TO CLIENT “AS IS” WITHOUT WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO ITS PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR RESULT. NO THIRD PARTY RIGHTS WERE VIOLATED BY STR IN THE PREPARATION OF OR DELIVERY OF THE REPORTS TO CLIENT.
4.1.2 Nothing in this Agreement shall limit the liability of the Parties for death or personal injury caused by negligence, or for fraudulent misrepresentation.
4.1.3 On demand from STR, Client will indemnify STR against all actions, claims or proceedings brought or threatened by your professional advisers, the owners or franchisees of your Hotel(s), if applicable, or any other party, and any liabilities, losses, damages, costs and expenses relating thereto arising from the provision to them by you of STR’s Reports, save where caused by our fraud. Client also agrees to indemnify STR, on demand, against all liabilities, costs, claims, losses or expenses incurred by or made against us as a result of any breach by you or any Permitted User of the terms of this Agreement.
In the event that Client does not make any payment owed under this Agreement when due, STR shall be under no obligation to Reports to Client until such time as the overdue payment is paid, and STR’s continuing to provide such reports shall not constitute a waiver of Client’s obligation to make timely payments. If Client fails to make payment for 45 days, STR may notify Client of its delinquency by written notice. If, thirty (30) days after receiving written notice from STR, Client continues to fail to make payment, STR’s obligations under this Agreement shall cease and the Agreement is subject to termination in accordance with Paragraph 1.3, above.
4.4 Distribution List; Website
4.4.1Client may select certain of its employees, agents, owners, franchisees, management companies, subcontractors and legal and/or tax representatives with a need to know the information and maintain its confidentiality (“Permitted Users”) to receive Reports via electronic mail distribution. Client shall provide STR with the names and electronic mail addresses of those Permitted Users. STR shall keep a list of the Permitted User’s name and electronic mail address (“Distribution List”). In addition, Client may select certain of its Permitted Users to view and access Client’s reports, data and competitive sets on STR’s Website, www.str.com, through an STR-assigned log-in and password.
4.4.2 Client shall notify STR when the electronic mail address belonging to a Permitted Users is modified so that STR can make the change on the Distribution List. Client shall also notify STR when any individual Permitted User leaves its employ or is otherwise no longer affiliated with Client so that STR can remove the name from the Distribution List, and deactivate the Permitted User’s email address and/or log-in and password. If Client fails to so notify STR, STR will not be responsible for any subsequent unauthorized receipt of STR Reports, subsequent unauthorized access to Client’s site, or any breach of the Confidentiality provisions herein that may occur should a Permitted User continue to receive Reports or to use the assigned log-in and password to access the website after he or she is no longer employed by or otherwise affiliated with Client.
Client is prohibited from assigning its rights under this Agreement or delegating any of its duties under this Agreement without prior written consent of STR.
4.6 Entire Agreement; Modification; No Third Party Beneficiaries
4.7 Limitation of Liability
Client agrees that STR shall not be liable for damages, including consequential damages, resulting from the use of its Data and the Reports to the extent such damages arise from or are due to incorrect, inaccurate or invalid raw data. STR's total liability under this Agreement for any reason and for any cause of action arising out of or relating to this Agreement shall be limited to 2 times the total of all payments made by Client to STR during the twelve (12) months immediately preceding the date the cause of action first arose.
4.8 Choice of Law and Jurisdiction
This Agreement shall be construed in accordance with the Laws of the State of Tennessee. You and we irrevocably agree that the Courts of Tennessee shall have non-exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims) which may arise in connection with the validity, effect, interpretation or performance of, or the legal relationship established by this agreement or otherwise arising in connection with this agreement. Nothing in this Agreement shall prevent either Party seeking an interim injunction in any court of competent jurisdiction.
The provisions of this Agreement shall be deemed severable and if any portion shall be held invalid, illegal or unenforceable for any reason, the remainder of this Agreement shall be effective and binding upon the parties.
Any notices, statements and other communications to be given under the terms of this Agreement, or otherwise related to this Agreement, shall be provided in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the second business day after sending by confirmed email. Notices to Client shall be addressed to the attention of its Principal Contact as identified on the contact information sheet. Notices to STR shall be addressed to the attention of its Chief Operating Officer.