You understand that this Monscierge Solutions License Agreement ("Agreement") between you and Monscierge USA, LLC ("Monscierge") states the terms and conditions with respect to your use of and payment for the Software solutions ("Monscierge Solutions") provided by Monscierge to facilitate the management of brand, chain, hotel and local information, guest interaction and staff workflow delivered through touch-screen displays, mobile applications and/or other means to hotels and other transient-stay properties as more particularly described in the applicable Monscierge Solutions documentation ("Documentation") set forth on the online ordering portal at www.monscierge.com (the "Portal") and in the order which you submitted through the Portal (the "Order'), a copy of which Order was or will be e-mailed to you after placement of such Order. You agree that this Agreement is like any written negotiated agreement signed by you, and by clicking to acknowledge your agreement to be bound by this Agreement (including the Documentation and Order), or by downloading, installing, accessing or using the Monscierge Solutions and/or associated software, applications, content and/or services, you accept and agree to be bound by all of the terms and conditions of this Agreement. If you do not agree to the terms and conditions of this Agreement, you may not download, install, access or use the Monscierge Solutions, the Monscierge Solutions Software, the Content (defined below), the Monscierge mobile application (the "Application") or associated software, applications, content or services. You agree to enter into a software license agreement as a legal, authorized representative of your business or employer (as applicable), and that this Agreement is enforceable against you and your business or employer (as applicable) and any other individual or entity (e.g., employee, staff member or guest) that accesses, uses, installs or downloads the Monscierge Solutions and/or associated software, content and/or materials on your behalf, at your direction or with your permission, or on behalf of, with the permission of or at the direction of your business or employer (as applicable). You and your business and/or employer (as applicable) are hereinafter collectively referred to herein as "Licensee"). For purposes of this Agreement, "Software" shall mean any and all computer programs, including any and all software implementations or algorithms, models and methodologies, whether in source code or object code format, databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, "look and feel," functional results, report formats, firmware, development tools, templates, menus, buttons and icons, and all documentation including user manuals and other training documentation related to any of the foregoing; (b) "Content" shall mean all Monscierge Solutions and/or Application materials, features, functions, images, photographs, videos, articles, information, and other content, including the Destinations and Travel Vendors (defined below) listed or recommended on or otherwise advertised on or through the Monscierge Solutions and/or the Application; (c) "Destination" shall mean a hotel, restaurant, store, shop, market, experience, park, amusement park, sporting venue, event or other retailer, attraction, location or destination which is listed or recommended on or otherwise advertised on or through the Monscierge Solutions and/or the Application; and (D) "Travel Vendor" shall mean a transportation service or other travel related service vendor which is listed or recommended on or otherwise advertised on or through the Monscierge Solutions and/or the Application. Licensee may not insert or add any additional or varying terms or conditions to the Order without the express prior written approval of an authorized officer of Monscierge.
Grant of License. In accordance with the terms herein, Monscierge grants to Licensee, and Licensee accepts from Monscierge, a nonexclusive, non-assignable and nontransferable license to use the Monscierge Solutions at Licensee's properties designated in the Order (the "Properties") for the Term (as defined in Section below) on the terms and conditions specified herein. Licensee shall only use the Monscierge Solutions to allow its guests or customers to (a) access, on the computers or mobile devices of such guests (including through the Application) or on computers or mobile devices provided by Licensee at the Properties, content about Licensee and/or about Destinations or Travel Vendors which is provided by Licensee and/or by Monscierge and/or its affiliated entities and/or their licensors, and (b) to otherwise communicate with Licensee's guests and customers on such computers and mobile devices, as described in the applicable Documentation and in the Order. Licensee shall only use the Monscierge Solutions at the Properties. Monscierge may update, upgrade or modify the Monscierge Solutions Software and any other Monscierge Solutions from time to time ("Upgrades"), and all such Upgrades shall be subject to the terms of this Agreement and become part of the applicable Software. Licensee acknowledges that its failure to accept, download and install such Upgrade may affect the ability of Licensee (and its guests and customers) to use and access the Monscierge Solutions, Application and Content.
Restrictions. Any use of the Monscierge Solutions not expressly specified in Section 1 above is strictly forbidden and is a violation of this Agreement. Without limiting the foregoing, Licensee agrees that it will not, and will not permit or assist others to: (a) copy all or any part of the Monscierge Solutions Software, Documentation or Application Software; (b) sell/resell, rent, lease, license, sublicense, or otherwise transfer or distribute all or any part of the Monscierge Solutions Software, Documentation and/or Application Software; (c) merge, adapt, alter, enhance, or otherwise modify the Monscierge Solutions Software, Documentation and/or Application Software; (d) disassemble, decompile, reverse engineer, decode, or otherwise attempt to derive source code from all or any part of the Monscierge Solutions Software and/or Application Software; (e) remove, alter, or obscure any copyright or other proprietary notices on the Monscierge Solutions and related Software, applications and materials (including the Content, Documentation, Monscierge Solutions Software, Application Software and permitted copy of the Monscierge Solution Software); (f) prepare any derivative works or translations of the Monscierge Solutions, Documentation or Application (including the Monscierge Solutions Software and the Application Software); (g) avoid, circumvent, or disable any security device, procedure, protocol, or mechanism that Monscierge and/or its affiliates and/or their third party licensors may include, require or establish in or with respect to the Monscierge Solutions Software and/or Application Software; (h) use a previous version of the Monscierge Solutions Software, Documentation and/or Application Software after you have installed an upgraded version (if any) of the Monscierge Solutions Software or Application Software (as applicable), or (i) use the Monscierge Solutions or Application (including the Monscierge Solutions Software, Documentation and/or Application Software) other than as permitted by this Agreement or in any improper or unlawful manner. Further, Licensee agrees that it will not (and it will ensure that the other Licensee Parties (defined below) will not) (i) use the Monscierge Solutions in a manner that, and/or (ii) provide Licensee Material (defined below) that, (A) is unlawful, threatening, violent, abusive, harassing, defamatory, intimidating, degrading, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, bigoted, hateful, racially offensive, vulgar, profane, obscene, pornographic or sexually explicit; (B) encourages activity or conduct that would constitute a criminal offense or violation of the rights of another person or entity or which would otherwise give rise to civil or criminal liability; (C) infringes the intellectual property rights or misappropriates the trade secrets of Monscierge and/or its affiliate entities and/or their licensors and/or any other third party, or violates the publicity or privacy rights of any third party; and/or (D introduces any virus, corrupted data or other harmful, disruptive or destructive code or files (collectively, "Harmful Code") to or otherwise interferes with or disrupts, overloads or burdens the Monscierge Solutions, the Application and/or the servers and/or networks of Monscierge and/or its affiliated entities and/or their service providers.
Term; Termination. The term of this Agreement and the licenses granted to Licensee hereunder commences upon your submission of the Order and shall continue until the expiration of the three (3) year period following Monscierge's issuance of CMS credentials to Licensee that permit Licensee to access the Monscierge Solutions CMS system (the "Initial Term"), unless earlier terminated as provided below. Thereafter, this Agreement and the licenses granted to Licensee hereunder shall automatically renew for successive one (1) year renewal terms (each, a "Renewal Term") unless (a) either party gives the other written notice of its intent not to renew this Agreement and the licenses granted to Licensee hereunder at least thirty (30) days prior to the expiration of the Initial Term or the then current Renewal Term, as applicable, or (b) this Agreement and the licenses granted to Licensee hereunder are earlier terminated as provided below. The Initial Term and each Renewal Term are collectively referred to herein as the "Term". Monscierge may terminate this Agreement and the licenses granted to Licensee hereunder at any time for "cause" in the event Licensee has materially violated the terms of this Agreement and failed to cure the breach (if capable of being cured) within thirty (30) days of Licensee's receipt of detailed written notice of the breach from Monscierge. Monscierge shall also have the right to terminate this Agreement and the licenses granted hereunder without "cause" upon sixty (60) days advance written notice to Licensee. Licensee may terminate this Agreement and the licenses granted to Licensee hereunder in the event Monscierge has materially violated the terms of this Agreement and failed to cure the breach within sixty (60) days of Monscierge's receipt of detailed written notice of the breach from Licensee. Section 8 (Confidentiality), Section 12 (Limitations on Liability), Section 13 (Indemnification), Section 14 (No Hire Away), Section 16 (Audit), Section 17 (Applicable Law), Section 18 (Mediation), Section 19 (Arbitration) and Section 20 (General), as well as the ownership provisions of Sections 5, 6 and 7 and the disclaimer of warranties by and limitations on the liability of Monscierge in Sections 10 and 11, shall survive the termination or expiration of this Agreement. In the event of a termination of this Agreement by Licensee for cause or by Monscierge without cause as provided above, and provided Licensee is not in material breach of this Agreement, Licensee shall be entitled to a refund of the portion of the pre-paid License Fees (defined below) attributable to the pre-paid payment period remaining after the effective date of termination (e.g., if Licensee pre-paid License Fees for an entire year and the Agreement is terminated under such circumstances after 7 months of such annual payment period, then Licensee would be entitled to that portion of the annual License Fees attributable to the last 5 months of such annual payment period, and if Licensee pre-pays License Fees on a quarterly basis and the Agreement is terminated after 2 months of the applicable quarterly payment period, then Licensee would be entitled to that portion of the quarterly pre-paid License Fees attributable to the last 1 month of such quarterly payment period). Except as expressly provided above (or in Section 11) or otherwise required by applicable law, no part of the License Fees will be refunded to Licensee upon termination of this Agreement.
License Fees; Setup Fees; Hardware Costs. As a condition to the license of the Monscierge Solutions pursuant to this Agreement, Licensee shall pay to Monscierge those certain licensing fees described in the Order ("License Fees") in advance on a monthly, quarterly or annual basis as specified in the Order. Licensee shall also pay the fees to set-up and implement the Monscierge Solutions as specified in the Order (the "Set-up Fees"). Such License Fees and Set-Up Fees will be invoiced by Monscierge and payable by Licensee as set forth in the Order. Payment of the License Fees and the Set-Up Fees shall be a condition of Licensee's access to and use of the Monscierge Solutions. The Licensee Fees specified in the Order may be increased after the Initial Term on an annual basis (i.e., for each one (1) year Renewal Term) upon written notice to Licensee at least sixty (60) days prior to the expiration of the Initial Term or the then current Renewal Term, as applicable. The purchase price, applicable shipping and installation costs, and payment terms (including applicable shipping and installation costs) for any hardware related to the Monscierge Solutions purchased by Licensee from Monscierge ("Hardware") shall be specified in the Order. Title to such Equipment shall transfer to Licensee upon payment of the purchase price for such Equipment, and all risk of damage or loss to such Equipment shall pass to Licensee upon delivery of such Equipment to Licensee at the location(s) specified in the Order. In addition to the License Fees and Hardware costs, Licensee shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to the use and licensing of the Monscierge Solutions or purchase of Hardware, or arising out of or in connection with this Agreement, other than taxes levied or imposed based upon Monscierge's income. In the event that Monscierge pays any such taxes on behalf of Licensee, Monscierge shall invoice Licensee for such taxes and Licensee agrees to pay such taxes in accordance with this Agreement. Except where prohibited by law, if Licensee has elected to pay the License Fees by credit card, Monscierge may automatically charge Licensee's credit card of record for the License Fees on a monthly, quarterly or annual basis as specified in the Order (and may do so for any Renewal Term unless Licensee notifies Monscierge at least thirty (30) days prior to the expiration of the then current Term). Amounts paid by credit card, Visa, Discover, MasterCard, and American Express are subject to a three and one half percent (3.5%) credit card processing fee, to be charged in addition to the invoice amount. Amounts not paid when due shall bear interest at the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law. Without limiting its termination rights hereunder, Monscierge may discontinue the Monscierge Solutions if any amount becomes more than thirty (30) days past due. The provision of solutions and services not specified in the Order shall be subject to the prior written approval of Monscierge and the payment of additional fees at Monscierge's then current rates.
Ownership. Licensee acknowledges and agrees that it is not acquiring any ownership rights in the Monscierge Solutions or in any related Software, information, materials and applications, including the Documentation, Content (defined below), Recommendations (defined below), Data (defined below), Application and Application Software. Rather, Licensee only has a license to use the Monscierge Solutions and Customer Data throughout the Term as set forth herein. The Monscierge Solutions and related Software, information, materials and applications (including the Monscierge Solutions Software, Documentation, Content, Recommendations, Data, Application, and Application Software) provided, delivered or developed by Monscierge and/or its affiliated entities and/or their third party licensors hereunder (including all modifications and enhancements thereto), and all patent, trademark, copyright, trade secret and other intellectual property and proprietary rights therein (including renewals and extensions thereof) (collectively, "Monscierge Property"), shall be and remain at all times the sole and exclusive property of Monscierge and/or its affiliated entities and/or such third party licensors (as applicable). All rights not expressly granted to Licensee herein are reserved to Monscierge. Licensee shall not use the name, logos, trademarks or service marks of Monscierge or its affiliated entities ("Monscierge Marks"), or of any third party licensor, except as authorized by Monscierge in writing in advance.
Licensee Materials. Monscierge shall co-operate with Licensee during the Term to provide Licensee Materials (defined below) to Licensee's guests and customers through the Monscierge Solutions as set forth in the Documentation. Further, all Licensee Materials for inclusion in and/or display through Monscierge Solutions and/or Application shall be subject to the final approval of Monscierge and may be removed by Monscierge at any time. No such approval by Monscierge shall relieve Licensee of its responsibilities with respect to such Licensee Materials nor shall it make Monscierge liable for such Licensee Materials. For purposes of this Agreement, "Licensee Materials" shall mean all images, videos, film, graphics, artwork, designs, logos, promotions, offers, advertisements, web pages, domain names, literary, dramatic, musical and artistic works, and other materials and other elements (including recommendations) provided by Licensee or its affiliated entities or franchisees or any of their respective agents, employees, contractors or third party licensors (including system/application integration and/or interface vendors) (collectively, "Licensee Parties") for inclusion in, display, distribution or communication through, or other use in connection with the Monscierge Solutions and/or the Application. Except for the recommendations and reviews of Destinations and Travel Vendors provided by Licensee or other Licensee Parties which are included in or displayed or communicated through the Monscierge Solutions and/or the Application ("Recommendations"), the Licensee Materials shall remain the sole and exclusive property of Licensee or other applicable Licensee Party. Notwithstanding the foregoing, Licensee hereby grants Monscierge and its affiliated entities the right to use, store, copy and modify the Licensee Materials, and the right to use the trademarks, trade names, logos and other proprietary marks of Licensee and its affiliated entities and franchisees (as applicable) (the "Licensee Marks"), as necessary for Monscierge to perform its obligations and provide and deliver the services and materials hereunder and otherwise carryout the purposes of this Agreement, including the right to include, display, distribute and communicate such Licensee Materials and/or Licensee Marks in, on or through the Monscierge Solutions and/or the Application.
Data. All data collected through or otherwise derived from the Monscierge Solutions and/or the Application, including all Customer Data, User Data and Systems Data (as such terms are defined below) (collectively, the "Data"), shall be the sole and exclusive property of Monscierge; provided, however, Licensee shall have the non-exclusive license to use and analyze the Customer Data obtained by Licensee through the use of the Monscierge Solutions during the Term. Monscierge shall have the right to use, disclose, share, assign, and transfer the Data, in its sole discretion, to the fullest extent permitted by applicable law. For purposes of this Agreement, (a) "Customer Data" shall mean all information (including personally identifiable data, demographic data. location data, and use, recommendation and preference data with respect to Destinations, Travel Vendors and other products and services) regarding the guests and customers of Licensee or its affiliated entities or franchisees ("Customers") which is collected through the Monscierge Solutions and/or the Application; (b) "User Data" shall mean all information (including personally identifiable data, demographic data, location data, and use, recommendation and preference data with respect to Destinations, Travel Vendors and other products and services) regarding users of the Monscierge Solutions and/or Application (other than Customers) (collectively "Users") which is collected through the Monscierge Solutions and/or the Application; and (c) "System Data" shall mean all data with respect to the operation and/or performance of the Monscierge Solutions and/or the Application which is derived from the Monscierge Solutions and/or the Application and/or the use thereof, including data derived from using or analyzing Customer Data and User Data associated with the operation or performance of Monscierge Solutions and/or Application. During the Term of this Agreement, Licensee shall provide a copy of all Data in its possession or under its control to Monscierge upon request of Monscierge, and shall return to Monscierge all such Data upon termination or expiration of this Agreement.
Confidential Information. The term "Confidential Information" shall refer to each party's proprietary, trade secret and/or confidential information. Information relating to the Monscierge Solutions and/or the Application (including, without limitation, the Documentation, Monscierge Solutions Software, Application Software and Data, and any know-how, methodologies, designs, plans or pricing, financial, technical or other information with respect to the technology, products, services, ventures and operations of Monscierge not generally available to the public) shall be Monscierge's Confidential Information. Confidential Information does not include information or data of the disclosing party that: (a) was in the public domain at the time it was communicated to the receiving party; (b) entered the public domain subsequent to the time it was communicated to the receiving party through no fault of the receiving party or its agents or employees; (c) was lawfully in the receiving party's possession or disclosed to the receiving party without violation of any obligation of confidentiality to the disclosing party; or (d) was independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party. Each party acknowledges the confidential and proprietary nature of the Confidential Information of the other party, and agrees that it shall not (i) use the Confidential Information of the other party other than as necessary to perform its responsibilities consistent with the terms and purposes of this Agreement, or (ii) reveal or disclose any Confidential Information of the other party to any other person or entity other than to its employees with a need to know such Confidential Information to perform their employment responsibilities consistent with the terms and purposes of this Agreement. The receiving party shall safeguard and protect the Confidential Information of the disclosing party from theft, piracy or unauthorized access in a commercially reasonable manner at least consistent with the protections it uses to protect its own most confidential information. Each party shall inform its employees of the requirements of this Section 8, and shall take such steps as may be reasonable in the circumstances, to prevent any unauthorized disclosure, copying or use of the Confidential Information of the other party. The receiving party agrees that in the event of a breach by it of this Section 8, the disclosing party will suffer irreparable injuries for which money damages alone are not an adequate remedy, and the disclosing party shall therefore be entitled to injunctive relief without the necessity of posting any bond or other security in connection therewith to cure such breach and to prevent any further breach. This remedy is separate and apart from any other remedy available to the disclosing party. The receiving party shall notify the disclosing party immediately upon discovery of any prohibited use or disclosure of the Confidential Information of the disclosing party, or any other breach of these confidentiality obligations, and shall fully cooperate with the disclosing party to help regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information. Notwithstanding anything contained herein to the contrary, the receiving party may disclose Confidential Information of the disclosing party pursuant to an order of a court of competent jurisdiction or as otherwise required by law. Under such circumstances the receiving party will, if reasonably possible under the circumstance of such disclosure, provide the disclosing party with advance notice of such disclosure in order to afford the reasonable opportunity to take legal action to prevent or limit the scope of such disclosure, and will cooperate with the disclosing party in connection therewith. Each party agrees to promptly return to the other party (or destroy at such other party's reasonable option) all Confidential Information of the other party upon the expiration or termination of this Agreement. The obligations set forth in this Section 8 concerning Confidential Information shall survive the expiration or termination of this Agreement.
Additional Obligations of Licensee. Licensee agrees that it shall be responsible for providing standard power, and the hardware (excluding that Hardware to be provided by Monscierge as specified in the Order) and internet requirements necessary for the proper functioning of the Monscierge Solutions and the Application. Licensee shall confirm necessary internet lines are fully functional according to the guidelines specified by Monscierge before Monscierge confirms a date and time for the remote installation of the Monscierge Solutions. Remote installation cannot be completed if the applicable computer or device is not connected to the internet. Licensee shall be responsible for ensuring that all pre-installation requirements, as specified by Monscierge have been met. Licensee shall also ensure that all provisions have been made to protect proper functioning of the Monscierge Solutions and related Software, applications and equipment (including the Application and any Hardware). Monscierge shall not be liable or responsible for any failure to back-up the Data. Licensee is required to enter a minimum of fifty (50) Recommendations into the local recommendations portal, but more may be added if mutually agreed upon by the parties. Licensee shall comply, and shall ensure that all Licensee Parties comply, with all applicable laws, rules and regulations, including (a) those laws, rules and regulations which are applicable to the use, disclosure, and safeguarding of personally identifiable information or any other Data, (b) the Children's Online Privacy Protection Act and the regulations promulgated thereunder, and other applicable children's privacy laws, rules and regulations, and (c) the CAN-SPAM Act and the regulations promulgated thereunder, and other applicable marketing and advertising rules and regulations. Licensee shall use, and shall ensure that the other Licensee Parties use, commercially reasonable safeguards to protect personally identifiable information and other Data collected by Licensee or any other Licensee Party through or in connection with the Monscierge Solutions and/or Application, or otherwise obtained by Licensee or any other Licensee Party in connection with this Agreement, from unauthorized use and disclosure.
Infringement. If the Monscierge Solutions Software or any other Monscierge Solution is, or in the opinion of Monscierge may become, subject to a claim of any registered or issued United States or applicable foreign patent or copyright or that are alleged or constitute a misappropriation of a trade secret protected under United States or applicable foreign law, Monscierge may elect, in its sole discretion and as Licensee's sole remedy, to: (a) obtain the right of continued use of such Monscierge Solutions Software or other Monscierge Solution for Licensee; (b) replace or modify such Monscierge Solutions Software or other Monscierge Solution to avoid such claim; (c) substitute a comparable, non-infringing component; or (d) terminate this Agreement and the licenses granted to Licensee hereunder and refund to Licensee the portion of the pre-paid Licensee Fees (defined below) attributable to the pre-paid payment period remaining after the effective date of termination. Nothing contained herein is intended nor shall be interpreted to in any way restrict Monscierge's obligation to comply with court orders, injunctions or similar requirements or prevent or hinder Monscierge in taking action to avoid or minimize damages. Further, notwithstanding the foregoing, Monscierge shall have no liability for, or other obligation to Licensee with respect to, any intellectual property right infringement or trade secret misappropriation (i) caused by (A) any Licensee Materials or any modification to the Monscierge Solutions Software or other Monscierge Solution by or required by Licensee or any other Licensee Party, (B) any Content provided by Customers, (C) the specifications dictated by Licensee, (D) use of the Monscierge Solutions Software or other Monscierge Solution with any other software or products not supplied by or specifically authorized in advance in writing by Monscierge, or (E) Licensee's failure to accept, download and install Upgrades or Licensee's use of a previous version of the Monscierge Solutions Software or other Monscierge Solution after Monscierge's provision of an Upgrade, or (ii) otherwise caused by Licensee or any Licensee Party.
Limited Warranty. Monscierge warrants that the Monscierge Solutions will perform substantially in accordance with the Documentation during the Term. Should the Monscierge Solutions not so perform, as determined by Monscierge in its sole discretion, Licensee's exclusive remedy, and Monscierge's sole obligation under this warranty shall be (a) correction of the defect within sixty (60) days of Monscierge's receipt of a written notice from Licensee detailing such defect, or (b) if such defect is not cured or cannot be cured, as determined by Monscierge in its sole discretion, within sixty (60) days of Monscierge's receipt of such notice, termination of this Agreement and the licenses hereunder and refund to Licensee the portion of the pre-paid Licensee Fees (defined below) attributable to the pre-paid payment period remaining after the effective date of termination. For purposes of clarification, a failure of the Monscierge Solutions to perform in accordance with the Documentation which does not prevent Licensee from using the core, essential functionality of the Monscierge Solutions as specified in the Documentation, as determined by Monscierge in its sole discretion, shall not be a breach of the foregoing limited warranty or a breach of this Agreement. The foregoing warranty shall not apply to, and Monscierge shall not be responsible for, any nonconformance or other problem (i) caused by (A) any Licensee Materials or any modification to the Monscierge Solutions Software or any other Monscierge Solution by or required by Licensee or any Licensee Party, (B) any Content provided by Customers, or (C) Licensee's failure to accept, download and install Upgrades or Licensee's use of a previous version of the Monscierge Solutions Software or other Monscierge Solution after Monscierge's provision of an Upgrade, or (ii) otherwise caused by Licensee or any Licensee Party. All warranties for any hardware provided by Monscierge hereunder are limited to those assignable warranties provided by the applicable hardware manufacturer, and Monscierge shall not be liable or responsible for any failure of any such hardware (including the Hardware) or for any death, injury, damage or other problem caused by any such hardware (including the Hardware) or the use thereof by Licensee or any other Licensee Party, the Customers or any other person or entity. Licensee acknowledges and understands that the Equipment may be new or refurbished to the applicable manufacturer's standards, unless otherwise set forth in the Order. The warranty set forth in this Section 11 is a limited warranty and Monscierge expressly disclaims, and Licensee hereby expressly waives, all other warranties express or implied, including warranties of merchantability, non-infringement, and fitness for a particular purpose with respect the Monscierge Solutions and other Monscierge Property and related Software, applications and materials to the fullest extent permitted by applicable law. Licensee agrees and acknowledges to the fullest extent permitted by applicable law that, except for the limited warranty under this Section 11, the Monscierge Solutions and other Monscierge Property and all related Software, applications and materials provided hereunder are provided "as-is" and any use thereof by Licensee is at Licensee's own risk. Monscierge does not warrant that (A) the Monscierge Solutions, Application or any other Monscierge Property will meet Licensee's requirements, be free of Harmful Code, uninterrupted, accurate or error-free, (B) bookings, reservations, orders or other communications made or placed through the Monscierge Solutions and/or Application will be transmitted or delivered or transmitted or delivered accurately and timely, (C) the operation of the Monscierge Solutions and Application will be uninterrupted or error-free, (D) errors in the Monscierge Solutions, Application or any other Monscierge Property will be corrected, or (E) the computers, devices or systems of Licensee or its affiliated entities or franchisees (or those of the Customers) will be compatible with and will not be damaged by the Monscierge Solutions, Application and other Monscierge Property. Monscierge's limited warranty under this Section 11 and limited liability under Sections 10, 11 and 12, and Licensee's limited remedies under this Section 11 and Section 10, are in lieu of all liabilities or obligations of Monscierge for damages arising out of or in connection with the installation, use or performance of the Monscierge Solutions, Application or any other Monscierge Property.
Limitation of Liability. In no event shall Monscierge or its affiliated entities or any of their respective officers, employees, shareholders, owners, successor or assigns (collectively, "Released Parties") be liable for consequential, exemplary, special, indirect, incidental or punitive damages, including lost profits, revenues or savings, loss of business, loss of data, or damage to reputation or goodwill, even if it has or they have been advised of the possibility of such damages. Further, to the fullest extent permitted by applicable law, in no event shall the liability of Monscierge or any other Released Party for any reason and upon any cause of action exceed the amount of License Fees paid to Monscierge by Licensee during the previous twelve (12) months. This limitation applies to all causes of action in the aggregate, including without limitation to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The fees paid by Licensee herein reflect, and are set in reliance upon, the allocation of risk and the exclusion of consequential damages set forth in this Agreement. In addition to the foregoing, Monscierge shall not be under any liability for any loss, damage or other problem or for any failure to perform any obligation hereunder due to causes beyond its reasonable control, including, without limitation strikes, lock-outs or other labor or industrial disputes of whatever nature, power losses, cable, internet, telecommunications or satellite failures, fires, floods, earthquakes, natural disasters or acts of God, riots, acts of war or terrorism, protests or other civil disturbances, orders or acts of government authorities, or epidemic, nuclear contamination, chemical or biological contamination or other public health emergency. Without limiting the foregoing, in no event shall Monscierge or any other Released party be liable or responsible in any way or manner for: (a) any decision made or taken or omitted by Licensee, any Customer or any other person or entity in reliance upon the Monscierge Solutions, Content, Data, Application and/or other Monscierge Property; (b) any Licensee Materials (including any errors or defects in or other problems with respect to or caused by such Licensee Materials, or the suitability of such Licensee Materials for any purpose) or any Content provided by any Customers or any Users or any third party (including any Destination and Travel Vendor recommendations); (c) any loss or inaccuracy of Data or Content; (d) unavailability of or inability to access the Monscierge Solutions, Content, Application and/or other Monscierge Property (other than as provided in Section 11); (e) any damage to the computers, devices or systems of Licensee or its affiliated entities or franchisees (or those of the Customers) which is caused by the use of the Monscierge Solutions, Content, Application and/or other Monscierge Property (and/or the Hardware) by Licensee or any other Licensee Party or the Customers; (f) any damages, liabilities or other problems which result from the use of the Monscierge Solutions and/or Application by Licensee or any other Licensee Party or the Customers with software, equipment and/or systems which do not meet the specifications for the Monscierge Solutions and Application provided by Monscierge; (g) any bookings, reservations or orders for products or services (including for products and services offered by Licensee or any Licensee Party or any Destination or Travel Vendor or any other third party advertising on or through the Monscierge Solutions and/or Application) placed through or in connection with the Monscierge Solutions and/or Application, including, without limitation, the failure of Licensee or the applicable Licensee Party, Destination, Travel Vendor or other third party to timely, properly and accurately fulfill, deliver, receive, transmit, process or honor, or any other problem with or arising from, such bookings, reservations and/or orders (e.g., overcharges or improper or unauthorized charges); or (h) any damage, death, injury, liability or other problem caused by (i) Licensee's breach of this Agreement, (ii) any other act of omission, including any negligent act or omission, wilful misconduct, criminal conduct, non-performance or other failure, of Licensee or any other Licensee Party, any Customer or User, or any Destination, Travel Vendor or other third party, or (iii) the products or services of Licensee or any other Licensee Party or any Destination, Travel Provider or other third party.
Indemnification. Licensee shall indemnify, defend and hold Monscierge and the other Released Parties harmless from and against all causes of action, claims, lawsuits, demands, losses, damages, liabilities, fines, penalties and related costs and expenses (each a “Claim” and collectively, “Claims”) which arise from: (a) Licensee’s material breach of this Agreement; (b) any Claim of intellectual property right infringement, trade secret misappropriation or violation of publicity or privacy rights which arises from the Licensee Materials or any Content provided by Customers, or which is otherwise caused by Licensee or any Licensee Party; (c) any failure to timely, properly and/or accurately fulfill, deliver, receive, transmit, process and/or honor bookings, reservations and/or orders placed through or in connection with the Monscierge Solutions and/or Application, and/or any other problem with or arising from any such bookings, reservations and/or orders (e.g., overcharges or improper or unauthorized charges) which is caused by the act or omission of Licensee or any Licensee Party, or the systems/applications interfaces or integrations provided by Licensee or any other Licensee Party; (d) any unauthorized use of the Monscierge Solutions, Content, Data, Application and/or other Monscierge Property by Licensee or any other Licensee Party; (e) the unauthorized use or disclosure or other breach of the confidentiality, security and/or privacy of the personally identifiable information of Customers or any Users by or caused by Licensee or any other Licensee Party; (f) the negligence or wilful misconduct by Licensee or any Licensee Party; (g) any Claim by a Customer, User, hotel guest or other third party whose actual or alleged use of the Monscierge Solutions, Content, Data, Application and/or other Monscierge Property is permitted, authorized, facilitated or enabled by Licensee or its agents regardless of the nature of such Claim; (h) any Content provided by Customers; and/or (i) the Content (including Recommendations), Licensee Materials, products and services provided by Licensee or any other Licensee Party, including any failures, errors, defects or other problems caused by the systems/applications interfaces or integrations provided by Licensee or any other Licensee Party.
No Hire Away. In recognition of the importance of having a fluid and stable workplace and the costs incurred by Monscierge and its affiliated entities in locating and training its employees and contractors (and replacement employees and contractors), Licensee agrees that it will not during the term of this Agreement and for one (1) year thereafter solicit or attempt to solicit, either directly or through any affiliated entity or Licensee agency, any employee or contractor of Monscierge or any of its affiliated entities to terminate such employee's or contractor's employment or engagement with Monscierge or such affiliated entity. In the event of any breach of this provision, and without limiting Monscierge's other rights and remedies under applicable law, Licensee shall pay Monscierge a single sum equal to one (1) year's compensation for any employee or contractor solicited in violation of this provision.
Independent Contractors. The parties agree that Monscierge is an independent contractor in performing its obligations and supplying the services and products described in this Agreement. No party (nor any of its officers, directors, agents or employees) shall act or hold itself out as an agent of the other party hereto. The parties do not intend this Agreement or the relationship hereunder to constitute a joint venture or partnership.
Audit Rights. Licensee hereby grants Monscierge the right to audit and inspect (during the Term and for a period of one (1) year thereafter) Licensee's records, devices, computers, systems and Properties as necessary to verify Licensee's compliance with the terms of this Agreement. All such audits shall be performed upon reasonable notice during Licensee's normal business hours by a representative of Monscierge or, at Monscierge's election, an independent auditor hired by Monscierge in a manner which does not unreasonably disrupt Licensee's business.
Applicable Law. This Agreement shall be construed, interpreted and governed by the laws of Oklahoma without regard to conflicts of law provisions thereof.
Mediation. Without limiting the right of a party to terminate this Agreement or seek injunctive relief as set forth hereunder, the parties shall first attempt to resolve all disputes arising out of or relating to this Agreement by non-binding mediation in accordance with the provisions of this Section 18. Either party may commence non-binding mediation upon providing the other party written notice ("Notice of Dispute"). All other disputes, breaches or claims arising under or relating to this Agreement and any disputes which are not successfully resolved by non-binding mediation shall be resolved by arbitration pursuant to the provisions of Section 19 below. A dispute shall first be subject to a non-binding mediation session of up to two consecutive days conducted in Oklahoma City, Oklahoma by a single, disinterested mediator appointed by J.A.M.S./Endispute or any successor entity. Unless otherwise agreed by the parties, the mediation shall commence within fifteen (15) business days of the effective date of the Notice of Dispute or at such other time as is mutually agreed by the parties. Each party shall have the option to present a written summary of its position, not to exceed ten pages, and to make an opening statement of its position to the mediator of not more than one hour in duration. Nothing that is said by either party during the mediation shall be admissible or discoverable in a subsequent arbitration proceeding or other civil adjudication relating to the dispute. The parties shall share the costs of mediation equally.
Arbitration. Without limiting the right of a party to terminate this Agreement or seek injunctive relief as set forth hereunder, any controversy or claim arising out of or relating to this Agreement or the breach thereof which is not settled by the parties pursuant to the dispute resolution process described in Section 19 above shall be settled by arbitration to be conducted in Oklahoma City, Oklahoma. Such arbitration shall be conducted by a single disinterested arbitrator as mutually agreed by the parties in their reasonable discretion, who shall be knowledgeable in computer law and technology, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Judgment on the award entered by the arbitrator shall be binding upon both parties and may be entered in any court having jurisdiction thereof. In the event that this Section 19 is found to be unenforceable under applicable law by a court or other tribunal with proper jurisdiction, the parties agree that all actions under this Agreement shall be maintained in the courts located in Oklahoma City, Oklahoma, and the parties submit to the jurisdiction thereof.
General. This Agreement (including the applicable Order and the Documentation) shall constitute the entire Agreement between the parties hereto and supersedes and replaces all prior or contemporaneous oral or written agreements between the parties concerning the matters contemplated in this Agreement. Any waiver, amendment or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. No waiver, by either party, whether express or implied, of any provision or promise under this Agreement, or of a remedy as to any breach or default of the other party, shall constitute a waiver of any other provision of this Agreement, and no such waiver by either party shall prevent such party from enforcing any provision of this Agreement or from seeking a remedy as to any subsequent breach or default. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy nor shall any single or partial exercise of any such right, power or remedy operate as a waiver. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably effect the intention of the parties. If any action or proceeding shall be commenced to enforce or interpret this Agreement or any right arising in connection with this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party all reasonable attorneys' fees, costs and expenses incurred by such prevailing party in connection with such action or proceeding. Licensee may not assign this Agreement or its rights and obligations hereunder without the prior written consent of Monscierge. All of the terms and provisions of the Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties. Without limiting the foregoing, upon the sale of one or more of the Properties by Licensee to a third party, Monscierge shall have the right to terminate this Agreement and the licenses granted hereunder upon written notice to Licensee. For purposes of this Agreement, a "sale" shall include any merger of Licensee with a third party where Licensee is not the surviving entity.