Please read this document carefully as it contains the legal terms and conditions which you may accept as set forth below.
In consideration of the following mutual covenants, STR and Client agree as follows:
THIS AGREEMENT is made by and between STR, Inc., 735 East Main Street, Hendersonville, TN, 37075, (hereinafter referred to as "STR”, “the Company”, “us”, “we”, or “our”), and the Client identified elsewhere in this Agreement (hereinafter referred to as “Client”, "you" or "your") (collectively the Parties).
Client subscribes for a period of twelve (12) months, commencing on the date this agreement is received and processed, ending on the expiration date shown above (the “Initial Term”), with the first Report issued within 30 days of receipt of agreement.
2. SUBMISSION OF CLIENT DATA
STR will generate for CLIENT (12) Hotel Survey reports ("Reports") on or about the last day of each month during the contract year.
Monthly data shall be submitted to STR by the 10th day of the month to receive a Hotel Survey report for the prior month.
STR is under no obligation to produce a Hotel Survey report if CLIENT'S 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.
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. 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 and/or franchisees who have a need to know the information contained in the Reports for the purpose of Client’s internal business operations, 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 outside data vendor, outside consultant or other 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 first obtain each Permitted Users written agreement: a.) that STR does not owe them a duty of care; b) that Permitted User they will only use the Reports only for the internal business operations or for advising Client on those operations Purpose; and c.) that Permitted User will keep the Reports confidential. Client shall be liable for any breach of confidentiality by the Permitted 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. Any and all copies of any Report or aggregated data that are made, distributed or reproduced by you must reproduce the following:
copyright notice “Source: STR, © 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.
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 Disclaimer and Indemnity
4.1.1 Client acknowledges its Reports and the data contained therein are generated from information received through independent surveys and research from sources considered reliable in the hotel and motel industry. STR will use reasonable efforts to ensure the information contained in the Reports is accurate and complete. STR takes no responsibility for the accuracy and validity of the raw data provided by hotel chains and properties for the Reports. Client agrees that STR shall not be liable for damages, including consequential damages, resulting from the use of its Reports. STR makes and client receives no warranties, either express or implied, regarding the performance of the Report, the data or the results that may be obtained by using the Reports or the data. Accordingly, each Report is licensed "as is" without warranty as to its performance, merchantability or fitness for any particular purpose. The entire risk as to the results and performance of the data is assumed by 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 Subject to the paragraph above, the aggregate liability, whether to you or any third party, of whatever nature, whether in contract, tort or otherwise, of STR for any losses (including interest) whatsoever and howsoever caused arising from or in any way connected with the provision of our Reports and the Website in any year covered by this Agreement shall not exceed two (2) times the fees invoiced to you under this agreement during that year.
4.1.4 Client will indemnify on demand and hold harmless 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 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 against all 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.
4.2 Rights Upon Breach
In the event of breach of this Agreement by Client or a Permitted User, then STR shall be have the right immediately to terminate all services under this Agreement, without refund to Client of any fee paid.
4.3 STR Digital Platforms; Website
4.3.1 Client may select certain ""Permitted Users"" to receive Reports. Permitted Users includes those employees, agents, owners, franchisee, management companies, and legal and/or tax representatives of the Client who have a need to know the information for the purpose of Client’s internal business operations and who have an obligation to keep such information confidential. Software providers, on-line travel agencies, revenue management consultants and other similar third parties shall not be considered “Permitted Users.” 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 Digital Platforms through an STR-assigned log-in and password. “STR’s Digital Platforms” means all of STR’s hardware, software, and code, including but not limited to: STR.com, any STR.com subdomains, dSTAR tools, STR’s online customer portal, Licensee’s credentials to access the portal, and all STR digital materials and information located on or accessed through these sites.
4.3.2 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.
4.5 Entire Agreement; modification; no third party beneficiaries
4.6 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 parti
4.8.1 Client shall use the Software in accordance with all applicable laws, rules, and regulations.
4.8.2 Client shall not introduce or permit to be introduced any file, device, software or routine that interferes or attempts to interfere with STR’s Digital Platforms or any part hereof, including, but not limited to, any virus, worm, malicious code, Trojan horse or any other contaminating or destructive feature.
4.8.3 Client agrees not to resell, lease or sublicense to third parties the Software, or use of or access to the Software. Client also agrees not to reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Software.
4.8.4 Client shall be solely responsible for obtaining and using its own anti-virus, anti-Trojan, anti-malware and internet security software and appliances. STR does not warrant that STR’s Digital Platforms, the Licensed Materials or the applicable host server(s), or any data viewed from or downloaded from STR's Digital Platforms, will be safe or free of viruses, worms, Trojan programs or other malware or destructive mechanisms. Client is solely responsible for using appropriate internet and network security devices and/or software to ensure that no third parties take advantage of the fact that Client's computers are connected to the internet or are accessing STR’s Digital Platforms through the internet.
4.8.5 Violation or default by the Licensee of any requirements or restrictions set forth herein shall constitute breach of a material provision of the Agreement."
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 General Counsel."