Please carefully read the following legal agreement, which governs your use of the Resort Data Processing, Inc. (“RDP”, “we”, “our”, “us”) product(s) specified on your signed Proposal and Order Form (each product a “Product”, and the Proposal and Order Form the “Proposal”). “Customer” or “you” means the entity you represent in accepting these Terms. By installing, downloading, accessing or otherwise using an RDP Product you agree to these RDP Standard Terms & Conditions (the “Terms”). Each of RDP and you are a “Party” and together the “Parties”. If these Terms conflict with the Proposal in any way, these Terms control. We do not offer refunds on any RDP product. These Terms are effective as of the date of the last signature on the Proposal (the “Effective Date”).
These Terms govern your initial purchase of RDP’s product(s), the Initial Implementation services, and Support Services as well as any future Products or services you receive from us. These Terms include each Proposal and any other referenced policies and terms.
2. SECTIONS THAT APPLY TO YOU
2.1. Hosted Customers.
All sections of these Terms apply to you except for Section 7 and any provisions that specifically refer to Premise-Based Customers.
2.2. Premise-Based Customers.
All sections of these Terms apply to you except for Section 8 and any provisions that specifically refer to Hosted Customers.
3.1. Customers, Users, Guests.
“Customer” includes both Premise-Based Customers and Hosted Customers unless otherwise specified.
“Hosted Customers” means Customers whose Products are hosted by RDP.
“Premise-Based Customers” or “Support Services Customer” means Customers who host their Products.
“Support Services Customer” means a Customer paying for Support Services (as defined in the Proposal).
“End Users” means all of a Customer’s employees or agents who are authorized users of an RDP Product.
“Guests” means all of a Customer’s individuals who make reservations for and/or stay at one or more of the Customer’s properties.
“Guest Data” means information about your guests, including personal information, input into the Products.
“Your Data” means Information about your property, your logos and trademarks, configuration information, details about rates, etc.
“Initial Implementation Services” mean the standard RDP implementation services defined in your Proposal. Initial Implementation Services begin when we receive your first required payment and Initial Implementation Services are only performed to implement your first RDP Product.
“Services” includes Initial Implementation Services, Support Services and any additional professional services performed by RDP for you, including optional or custom services and future implementation services for additional Products. Any services not included in Initial Implementation Services or Support Services are available at an extra cost.
“Support Services” means the standard RDP support services defined in your Proposal. Support Services begin on your “Go-Live Date” and are billed on an annual basis. Additional services, custom services and future implementation services for additional Products may be available at an additional cost.
3.4. Product Releases & Versions.
“Release” or “Major Release” of a Product means a new release of a Product with major new features or architectural changes (“Upgrades”). Releases are numbered with new whole numbers, e.g., version 5.0, 6.0, 7.0).
“Updates” to a Product means enhancements to existing features, minimal new features, minor bug fixes and ongoing security patches within a specific Product Release that RDP makes generally available to its Customers. Updates are numbered within a Product Release, e.g., for Release version 5.0, Updates may be numbered 5.1, 5.2, 5.2.1, 5.2.2, 5.3.
4. RDP PRODUCTS
4.1. Limited Rights to Products.
See Section 7 for Hosted Customers Product access rights. See Section 8 for Premise-Based Customers’ limited license grant. No ownership right is conveyed to you, whether or not you or we use terms such as “purchase” or “sale”.
4.2. Limited Warranties.
Products licensed pursuant to these Terms are subject to the limited warranties in Section 11.
4.3. Third-party components.
You understand and acknowledge that we may deliver certain third-party software together with the Product. Such third-party software is not licensed pursuant to the provisions set forth above. You shall have only such rights and/or licenses, if any, to use such third-party software as are set forth in the relevant terms and subject to your use in accordance with these Terms.
4.4. Open-Source components.
The Product includes open-source components licensed under the MIT license, a copy of which can be found at https://getbootstrap.com/docs/4.0/about/license/ (Bootstrap) and http://angular.io/license (Angular). Your use of the open-source components is subject to the respective terms and conditions.
4.5. Product Updates.
Support Services Customers receive Updates at no additional cost. You are responsible for checking the RDP updates webpage found on to identify the most current version of your Product and to install all Updates as soon as practicable.
4.6. Product Upgrades.
You do not have any right hereunder to receive any Upgrades. You may purchase any Upgrades subject to required fees.
4.7. Critical Updates.
If we notify you, including via email or by verbally informing one of your points of contact that an available Update is critical (“Critical Update”), you will install the Critical Update as soon as practical.
4.8. RDP Product.
The following are all deemed RDP Product for purposes of these Terms: Documentation, Updates, Upgrades, any additional modules activated or purchased under a Proposal, and any custom programming or enhancements provided by RDP.
5. OUR OBLIGATIONS
5.1. Product Delivery.
Provided we have received all payments owed from you and you are not in breach of these Terms, we shall use commercially-reasonable efforts to deliver the Products. Notwithstanding any provision under any Proposal regarding installation or configuration services of your computers, networks or other systems, Initial Implementation Services or Support Services, delivery will be deemed complete upon delivery to you of a username and password for RDP’s secure ftp site, allowing you to download the RDP Product.
Any services performed by us are subject to these Terms and your payment of applicable fees. Except as agreed in a Proposal we have no obligations to perform any services.
5.3. Initial Implementation Services for New Customers.
We shall use commercially-reasonable efforts to perform the Initial Implementation Services specified in your Proposal. Initial Implementation Services are provided for first-time Customers. After the Initial Implementation Services are complete, all other services (including ongoing implementation-related services) are only available to Support Services Customers. Initial Implementation Services are subject to these Terms and your payment of applicable fees.
5.4. Support Services.
We shall use commercially-reasonable efforts to perform standard Support Services specified in your Proposal. Support Services are subject to these Terms and your payment of applicable fees on an annual basis.
5.5. Additional Support Services, Custom Support Services.
Separately from Initial Implementation Services and the Support Services provided to all Support Services Customers, you may request that we provide certain other services related to your use of the RDP Product, including enhanced Support Services or customization of the RDP Product, which we may agree to provide at an additional cost as mutually agreed upon by the Parties. All services will be subject to these Terms.
You will receive standard Product documentation (“Documentation”), which includes user manuals, RDP Hardware Requirements (also available at https://www.resortdata.com/hardware-requirements/) (“Hardware Requirements”); documentation provided during Initial Implementation Services; documentation available via links in the System Implementation documentation, the RDP Implementation & Training checklist or in the Proposal. Documentation is deemed an RDP Product.
6. OBLIGATIONS & RESTRICTIONS FOR ALL CUSTOMERS.
6.1. Sufficient Staff Resources.
You agree to dedicate sufficient staff resources to ensure success during the Initial Implementation Services performance with the RDP team.
6.2. Responsibility for Maintenance and Security for Equipment used to Access and Use Products.
Except as set forth in any Proposal, you will be solely responsible for obtaining, maintaining and securing all equipment and ancillary services needed to connect to, access or otherwise use the RDP product, including without limitation all proper hardware, servers, support software, operating systems, and network devices (the “Equipment”) used to access and use the Product. We will have no responsibility or liability under these Terms for any unavailability, failure of, nonconformity, or defect in, the RDP Product that is caused by or related in any manner to any failure of you to obtain and maintain all such Equipment.
You are responsible for your account, passwords (including but not limited to administrative passwords) and files, and for all actions taken via your account and your End User’s accounts or the Equipment, and for training your personnel. You must require that all End Users keep their user IDs and passwords for the Products strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End Users’ accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
6.4. Your End Users.
6.5. Compliance with Applicable Laws.
You will undertake all measures necessary to ensure that your use of the RDP Products complies in all respects with applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over you or the RDP Product.
6.5.1. Guest and End User Consent to use Data.
6.6. No Sensitive Personal Information.
You will not submit to the Products (or use the Products to collect) any sensitive personal information (e.g., health or medical information) as defined under applicable law. Notwithstanding any other provision to the contrary, we have no liability under these Terms for sensitive personal information submitted in violation of the foregoing.
6.7. Non-disclosure to Third Parties.
You agree to maintain the RDP Product in confidence and not to disclose it to third parties except as necessary to perform your standard business operations, and as to those to whom you do disclose the Product in accordance with these Terms, you agree to obtain their written agreement of confidence and nondisclosure in terms at least as restrictive as those in these Terms.
6.8. Additional Restrictions.
You shall not, and shall not allow any third parties to, directly or indirectly: (i) modify, translate, create derivative works of or based on any Product, (ii) use the Product on any equipment not under your control; or (iii) reproduce or copy a Product in whole or in part; (iv) rent, lease, distribute, sell, sublicense, transfer or provide access to the Products to a third party; (v) use the Products for the benefit of any third party; (vi) incorporate any Products into a product or service you provide to a third party; (vii) interfere with or otherwise circumvent mechanisms in the Products intended to limit your use; (viii) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products; (ix) remove or obscure any proprietary or other notices contained in any Product; (x) use the Products for competitive analysis or to build competitive products; or (xi) encourage or assist any third party to do any of the foregoing.
6.9. Disclaimer regarding Your Third-Party Services and Vendors and Third-Party Access to Your Data and Guest Data.
WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY OF YOUR THIRD-PARTY PRODUCTS OR SERVICES NOT PROVDED BY US (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY OF YOUR THIRD-PARTY PROVIDERS OR VENDORS. Your receipt or use of any third-party products or services (and the third parties’ use of any of Your Data and Guest Data) is subject to a separate agreement between you and the third-party provider. For example, if you engage third-party consultants to assist with IT support and services or housekeeping services, use third-party analytics or tag managers, or payment gateways, and you enable or use the third-party products or services with the RDP Products, you may be providing access to Your Data and Guest Data to the third-party providers in order to perform their services or provide their products to you. This could include transmitting, transferring, modifying or deleting Your Data or Guest Data, or storing Your Data or Guest Data on systems belonging to the third-party providers or other third parties. Any third-party provider’s use of Your Data or Guest Data is subject to the applicable agreement between you and such third-party provider. We are not responsible for any access to or use of Your Data or Guest Data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use Your Data or Guest Data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider.
7. PREMISE-BASED CUSTOMERS – LICENSE GRANT, OBLIGATIONS.
THIS SECTION APPLIES TO PREMISE-BASED CUSTOMERS.
THIS SECTION DOES NOT APPLY TO HOSTED CUSTOMERS.
7.1. Premise-Based Customer License Grant.
Subject to these Terms and your payment of applicable fees, we grant to Premise-Based Customers a limited, revocable, non-exclusive, non-transferable non-sublicenseable right and license to use the Products solely for Premise-Based Customers’ internal operations for the number of rooms listed on the Proposal at the properties designated on the Proposal, on Equipment owned or under the control of you and in accordance with the Documentation. Except as set forth in these Terms, RDP and its licensors retain all right title and interest in and to the intellectual property rights in the RDP Product and Documentation.
7.2. Maintenance and Security for System and Equipment used to Host and Operate Product.
In addition to your obligations under Section 6.2 you bear sole responsibility for your Equipment (hardware, software, networking, devices) that is required to host and operate the system and/or Products, the security of your Equipment and system, and for maintaining sufficient, current backups for business continuity and disaster recovery purposes. You agree that you maintain reasonable cybersecurity protections for your own Equipment and the system, which are appropriate given the nature of the Guest Data and other information stored.
7.3. WE DO NOT MONITOR OR REVIEW YOUR DATA OR GUEST DATA AND DISCLAIMS ALL LIABILITY ASSOCIATED WITH YOUR COLLECTION OR USE OF GUEST DATA VIA THE PRODUCT.
7.4. Responsibility for Restricting Our Access to Your System.
You acknowledge and agree that you may request RDP access your system via WebEx (or similar methods) to provide Support Services directly on your system with your participation and supervision. You agree to (i) prevent us from accessing your systems without your knowledge, (ii) limit our access to only those areas we need to access to perform Support Services, (iii) be present while we are connected to your system, and (iv) prevent us from receiving any non-temporary administrative passwords to your systems. However, in the event we require an administrative password to your system to perform Support Services, you agree to provide us with a temporary password and to remain present while we are connected to your system and logged in to an account. If you are unable to provide us with a temporary password, you agree to change the password to a password we do not know immediately after our WebEx (or similar method) connection is terminated.
7.5. Responsibility for Restricting Our Access to Guest Data.
You acknowledge and agree that we do not have access to Guest Data. You also agree not to provide access to Guest Data to us except for incidental access while troubleshooting or otherwise providing Support Services in your presence via WebEx (or similar methods).
8. HOSTED CUSTOMERS – PRODUCT ACCESS, OBLIGATIONS AND ADDITIONAL TERMS
THIS SECTION APPLIES TO HOSTED CUSTOMERS
THIS SECTION DOES NOT APPLY TO PREMISE-BASED CUSTOMERS
8.1. Product Access.
Products are made available to Hosted Customers on a limited access basis. Subject to these Terms, your authorized End Users may access and use the Products solely for your own business purposes in accordance with these Terms.
In addition to our security obligations described above in Section 5.7 we implement and maintain physical, technical and administrative security measures designed to protect Guest Data from unauthorized access, destruction, use, modification, or disclosure. We also maintain a compliance program that includes independent third-party reviews. The security obligations in this section do not apply to your Equipment.
8.2. Compliance with Law, Consent to Access Accounts.
You represent and warrant that you have obtained all necessary rights, releases and permissions to submit Your Data and Guest Data to the Products and to grant the rights granted to us in these Terms. You further represent and warrant that Your Data and Guest Data and their use by us according to these Terms will not violate (i) any applicable laws, (ii) any third-party intellectual property, privacy, publicity or other rights, or (iii) any of your or third-party policies or terms governing Your Data or Guest Data.
8.4. You retain all right, title and interest in and to Your Data submitted to the Products as hosted by us.
Subject to these Terms, and solely to the extent necessary to provide you with access to the Products, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data for purposes of providing the Products to you, for purposes consistent with our business operations, and as otherwise contemplated under these Terms.
8.6 Data Accuraccy.
We do not verify or review and are not responsible for the accuracy of Customers’ Guest Data.
8.8. Improving Products.
Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of our technology and any performance information relating to the RDP Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence and not disclose any Confidential Information to third parties and (b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by them with the terms of this Section. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10. INTELLECTUAL PROPERTY RIGHTS
You are only granted a license to use the Product as defined under these Terms. You are granted no other rights in and to the Product.
The RDP logo, product names, software manuals, help screens, and other support materials are either patented, copyrighted, trademarked by or proprietary to RDP. You agree not to remove any product identification or notices of proprietary restriction from the RDP product. RDP retains exclusive ownership of RDP Products, of RDP printed materials, and of RDP trademarks including, but not limited to, Condominium Control System (CCS), Timeshare Condominium System (TCS), Hotel Control System (HCS), Internet Reservation Module (IRM), RDPWin, and all modules of such RDP products. You agree not to disassemble or otherwise reverse engineer RDP Products. All techniques, algorithms, and processes contained in RDP’s Products or any modification or extraction thereof constitute trade secrets and/or proprietary information of RDP and will be protected by you.
10.3. Your Cooperation and Notice of Infringement.
You shall, during the Term: take all commercially-reasonable measures to safeguard the Product from infringement, misappropriation, theft, misuse, or unauthorized access; at our expense, take all such steps as we may reasonably require to assist us in maintaining the validity, enforceability and our ownership of the Intellectual Property Rights in the Product; promptly notify us in writing if you become aware of: (i) any actual or suspected infringement, misappropriation or other violation of our Intellectual Property Rights in or relating to the Product; or (ii) any claim that the Product, including any production, use, marketing, sale or other disposition of the Product, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any individual.
10.4. No Additional Intellectual Property Rights Granted.
Except for the limited rights granted to and Premise-Based Customers in Section 7.1 and Hosted Customers in Section 8.1, you acknowledge and agree that: the Product is licensed, not sold, to you by us and you do not have any ownership interest in the Product, or in any related intellectual property rights; RDP and its licensor(s) are the sole and exclusive owners of all right, title, and interest in and to the Product, including all intellectual property rights relating thereto, subject only to the rights of third parties in Open Source Components and the limited license granted to you under these Terms; and you hereby unconditionally and irrevocably assign to RDP or RDP’s designee, its entire right, title, and interest in and to any Intellectual Property Rights that you may now or hereafter have in or relating to the Product (including any rights in derivative works or applicable patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise. The rights granted to you in this Section are non-exclusive, non-sublicensable and non-transferable.
11. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
11.1. Limited Warranty.
Subject to the limitations and conditions set forth in this Section, we warrant that prior to the expiration of these Terms and while you are current on payments owed to us for all Products and Support Services (the “Warranty Period”), that the Product will materially conform with the Documentation, when installed, operated, and used as recommended in the Documentation and training, and in accordance with these Terms; and no Update or Critical Update, when correctly installed in accordance with our reasonable instructions and these Terms, will have a material adverse effect on the functionality of the Product.
11.2. Customer Requirements.
The limited warranties set forth in Section 11.1 apply only if you: (a) notify us in writing of the warranty breach during the Warranty Period; (b) have promptly installed all Updates and Critical Updates to the Product that we previously made available to you; (c) as of the date of notification, are in compliance with all terms and conditions of these Terms (including you obligations in Section # above and the payment of all license fees then due and owed); and (d) these Terms have not expired or terminated.
Notwithstanding any provisions to the contrary in these Terms, the limited warranty set forth in Section 11.1 does not apply to problems arising out of or relating to: Products modified or damaged by you or your representatives, End Users or Guests, use of the Product not specified in the Documentation (e.g., by incorporating, using, operating, or combining the Product in or with any technology, software, hardware, firmware, system, network, website tools (e.g., analytics, tracking, cookie management, tag management), other than as specified in the Documentation); your or any third party’s negligence or misuse of the Product, including any use other than as specified in the Documentation; any authorized or unauthorized use of your systems or network or a third party’s system or network; any open source components, third-party components, beta software, demo Product, temporary Products or free Products; your material breach of these Terms; or any circumstances outside our reasonable control, including cyberattacks on our vendors and service providers.
11.4. Remedial Efforts.
If we breach, or are alleged to have breached, any of the warranties set forth in Section 11.1, we may take any of the following steps to remedy the breach: replace any defective Product which we provided; repair the Product; and/or replace the Product with functionally equivalent software, which will be considered a Product after replacement.
11.5. Sole Remedy.
The remedies set forth in this Section are your sole remedies and our sole liability under the limited warranty set forth in Section 11.1.
EXCEPT AS PROVIDED BY US ABOVE, RDP, ITS LICENSORS, DISTRIBUTORS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES RELATED TO THE PRODUCTS AND SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SECURITY, NONINFRINGEMENT, QUIET ENJOYMENT, COURSE OF DEALING OR USAGE OF TRADE.
12.1. Our Product Indemnification Obligation.
We will indemnify you from and against damages incurred resulting from third-party claims that the Product or use of the Product in accordance with these Terms, infringes or misappropriates such third party’s US patent, copyright, or trade secret rights. This Section 12.1 does not apply to the extent that the alleged infringement arises from open source or third-party components, use of any version of a Product other than the most current version or failure to timely implement any update, modification, or replacement of the Product made available to you by us; use of the Product after our notice to you of such activity’s alleged or actual infringement; negligence, abuse, misapplication, or misuse of the Product by or on behalf of you, your agents, or a third party; use of the Product by or on behalf of you that is outside the purpose, scope, or manner of use authorized by these Terms or in any manner contrary to our instructions; events or circumstances outside of our commercially-reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or third-party claims or losses for which you are obligated to indemnify us pursuant to Section 12.4. Our indemnification obligation under this section shall not exceed the amounts paid by you to us in the previous 12-month period.
12.2. Our Service Indemnification Obligation.
We shall indemnify you from and against direct losses you incur during the Term resulting from third-party claims arising out of our performance of any services if our performance was grossly negligent or intentionally harmful. Our indemnification obligation under this section shall not exceed the amounts paid by you to us in the previous 12-month period.
If a Product is, or in our opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, we may obtain the right for you to continue to use the Product materially as contemplated by these Terms, or may modify or replace the Product. If none of the above are reasonably possible for us, we may terminate these Terms and you will cease using the Product immediately and we will refund any unused fees on a pro rata basis for the future portion of a Term that would have existed. THIS SECTION 12.3 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT A PRODUCT OR ANY SUBJECT MATTER OF THESE TERMS INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12.4. Your Indemnification Obligation.
You will defend, indemnify and hold harmless us (and our affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from (i) any claim arising from or related to (a) your breach of your obligations under these Terms, (b) Your Data or (c) Guest Data; (ii) any claims or disputes brought by your End Users or Guests arising out of their or your use of the Product; (iii) your failure to limit our access to your system, Equipment or Guest Data; and (iv) any actual damages, liability, cost or expense (including reasonable attorneys’ fees) claimed related to your unauthorized use of or modification to the Product.
12.5. Indemnification Procedure.
Indemnification obligations are subject to the indemnifying Party receiving (a) prompt written notice of such claim (but in any event notice in sufficient time to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by the indemnified Party at the indemnifying Party’s expense.
13. LIMITATIONS OF LIABILITY
13.1. EXCLUSION OF DAMAGES.
EXCEPT IN THE CASE OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL WE, OR ANY OF OUR LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR THEIR SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY PRODUCT OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2. CAP ON MONETARY LIABILITY.
EXCEPT IN THE EVENT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF RDP AND ITS LICENSORS, SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO RDP UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The limitations on liability in Section 13 do not apply to our indemnification obligations under Section 12.
14. TERM; TERMINATION
14.1. Term; Expiration.
These Terms are effective as of the Effective Date and shall continue on an annual basis beginning on the Go-Live Date (the “Term”). These Terms automatically expire if you discontinue paying Support Services fees and/or elect not to renew Support Services.
14.2. Termination for Breach (Both Parties’ Right to Terminate).
Either Party may terminate these Terms at any time effective on written notice to the other Party, if the other Party materially breaches these Terms and fails to cure the breach within 30 days after receiving written (including via email) notice of the breach from the non-breaching Party; and
14.3. Termination for Customer Payment Failure.
By us effective 90 days after we provide written notice (including via email) of your failure to pay any amount due under these Terms, unless you make the required payments before the end of the 90 days. We have the right to suspend Support Services or any other services during the 90-day period.
14.4. Hosted Customers Effect of Expiration.
On the termination or expiration of these Terms all amounts payable by you to us of any kind under these Terms are immediately payable and due no later than fifteen (15) business days after termination or expiration of these Terms. In addition, Section 14.6 (Effect of Termination) applies.
14.5. Premise-Based Customers Effect of Expiration.
On the expiration of these Terms for Premise-Based Customers, all amounts payable to us of any kind under these Terms are immediately payable and due no later than fifteen (15) business days after the effective date of the expiration. In addition, Premise-Based Customers’ limited license to use the Products remains subject to compliance with all restrictions and obligations in these Terms. Following expiration, if a Premise-Based Customer materially breaches these Terms, we may exercise our right to terminate the Terms based on the Customer’s breach as permitted in Section 14.2. If we terminate these Terms for a Premise-Based Customer, the “Effect of Termination” subsection also applies.
14.6. Effect of Termination.
On the termination of these Terms, all amounts payable become immediately due. All rights, licenses and authorizations granted to you hereunder will immediately terminate and you will (A) immediately cease all use of and other activities with respect to the Product; (B) within 30 days deliver to us, or at our written request destroy, and permanently erase from all devices and systems you directly or indirectly control, the Product, the Documentation and our Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to us in a signed written instrument that it has complied with the requirements of these Terms.
14.7. Surviving Terms.
The provisions set forth in the following sections, and any other right, obligation or provision under these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination of these Terms: this Section 14, Section 1, Section 10, Section 13, Section 15.
15. FEES AND PAYMENT.
All Fees and other amounts payable by you under these Terms are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.
You shall pay all amounts due under these Terms as specified on the Proposal before the payment due date set forth on the Proposal. You shall make all payments hereunder in US dollars according to the payment instructions on the Proposal or such other address or account as we may specify in writing from time to time.
15.3. Late Payment.
If you fail to make any payment when due then, in addition to all other remedies that may be available to us:
15.3.1. Interest. We may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
15.3.2. Reimbursement. You shall reimburse us for all reasonable costs incurred by RDP in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and
15.3.3. if such failure continues for ninety (90) days following written notice thereof, we may: (i) disable your use of the Product (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke your grant of a license hereunder; and/or (iii) exercise our rights to terminate these Terms.
15.4. No Deductions or Setoffs.
All amounts payable to us under these Terms shall be paid by you to us in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
16.1. Further Assurances.
On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to these Terms.
16.2. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in these Terms will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
16.3. Public Announcements.
Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms or, unless expressly permitted under these Terms, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld, provided, however, that we may, without your consent, include your name and other indicia in our lists of current or former customers in print or electronic promotional and marketing materials, including on our public website.
16.4. Notices. Any notice, request, consent, claim, demand, waiver, or other communication under these Terms has legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section):
Resort Data Processing
PO BOX 358
Salida, CO 81201
Resort Data Processing
34215 Highway 6, Suite 204
Edwards, CO. 81632
Email: [email protected]
If to Customer, to the point of contact on the Proposal.
Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when sent by email (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next Business Day, if sent after the addressee’s normal business hours.
The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
16.6. Entire Agreement.
These Terms, together with the Proposal, constitute the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in these Terms and the Proposal, these Terms govern. These Terms may not be modified except in writing and signed (including via electronic signatures) by authorized representatives of the Parties.
16.7. Force Majeure.
In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing these Terms, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) national or regional emergency; and (vii) a communication line failure; power failure or failure of the computer equipment on non-Licensor developed software. Either Party may terminate these Terms if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 30 days or more.
16.8. Affected Party Obligations.
In the event of any failure or delay caused by a Force Majeure Event, we will give prompt notice to you stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.9. No Third-Party Beneficiaries.
These Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
16.10. Amendment and Modification; Waiver.
No amendment to or modification of or rescission, termination, or discharge of these Terms is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of these Terms and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify these Terms to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.12. Governing Law; Submission to Jurisdiction.
These Terms are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Colorado in each case located in the city of [CITY] and County of Eagle, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
16.13. Waiver of Jury Trial.
Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the transactions contemplated hereby.
16.14. Equitable Relief.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5.7, Section 15, Section 10 of these Terms would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Proposals) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you give us prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the Parties’ permitted successors and assigns.
16.16. Binding Arbitration.
In the event of any dispute between you and us regarding these Terms and/or any Products, each Party agrees to first send the other Party a notice of dispute, which is a written statement setting forth the name, address and contact information of the Party giving the notice, the facts giving rise to the dispute and the relief requested. The Parties agree to attempt to resolve any dispute through informal negotiation within 30 days from the date that the notice of dispute is sent. If the Parties are unable to resolve a dispute by negotiation, you agree that disputes must be resolved through binding arbitration rather than by a court, provided that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration and court review of an arbitration award is limited. It is important that you understand that the arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at [email protected] with “Arbitration Request” in the subject line. You may also contact us by mail at [mailing address & Attn: name/title]
16.17. Class Action Waiver.
You agree to arbitrate with us only in your sole capacity and not as a representative or member of a class or in any consolidated or representative proceeding. As such, your claims may not be joined with any other claims and there shall be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. For certain claims, like violations of these Terms or breaches of intellectual property obligations, we reserve the right to seek injunctive relief in a court of competent jurisdiction. All arbitrations shall be initiated at the AAA in Denver, CO.