Terms and Conditions
Standard Terms and Conditions
In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, STR, Inc. and the licensee identified elsewhere in this Agreement (“Licensee”) agree as follows:
(a) “Agreement” means: these Standard Terms and Conditions; any additional terms specifically set out in writing in the document(s) (if any) to which these Standard Terms and Conditions are attached or in which they are incorporated by reference, and, if applicable, any additional terms specifically set out in writing in any Schedule or Exhibit attached hereto;
(b) "Authorised User" means a Subscriber’s employee who has expressly been authorised by the Company to use the Services and Materials on behalf of the Subscriber in accordance with the Conditions;
(c) "Database" means the AM:PM Hotel Database as amended from time to time;
(d) "Download Restrictions" means the following restrictions: (i) the relevant part of the Materials shall be stored in machine readable format and stored and used only for one named person’s exclusive use (and, for the avoidance of doubt, that person shall be the Subscriber (in the case of a Subscriber who is an individual) or one Authorised User whose name and contact details have been supplied to, and confirmed by the Company (in the case of a Subscriber which is not an individual),; (ii) no graphics or other items on the Website may be used separately from the corresponding text; and (iii) the Company’s copyright and trademark notices appear in all copies and other reproductions;
(e) "Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
(f) “Licensed Materials” means any newsletter, report, database, survey, or other similar resource, and all lodging industry data contained therein, which has been created by STR and provided to Licensee hereunder;
(g) "Order" means any subscription, order or request for services by or on behalf of the Subscriber (whether in writing, submitted online through the Website or otherwise);
(h) "Order Confirmation" means the confirmation of the Services, Price and/or other details relating to the Services as set out in an Invoice or a Confirmation Letter;
(i) "Reports" means any report received or downloaded from STR (or otherwise as the Company may decide) as provided by the Company to you from time to time;
(j) "Subscription Period" means an initial period of 12 months (or such other period as is specified in the Order Confirmation) commencing from the start date referred to in the Order Confirmation, with subsequent 1 year automatic renewal periods until the Agreement is terminated as outlined in this Agreement;
(k) "Unauthorised Person" means any person who is not either a Subscriber or an Authorised User; and
(l) "Website" means www.ampmhotels.com, www.str.com, www.strglobal.com, www.strglobal.co.uk, www.stranalytics.com, www.hotelnewsnow.com, www.hoteldataconference.com, www.hdceurope.online, www.wwstar.com, www.hotelstockindex.com, www.hotelrealestatebarometer.com, or any other website of Company.
1.2 "Purpose" means solely for the private or business research purposes of the Subscriber, and such business research purposes shall include the use of the Materials for the provision of: valuation reports; feasibility studies; credit or risk reports; or other research;
1.3 Grant of License. Subject to the terms and conditions of this Agreement, and except as may be expressly permitted or limited elsewhere in this Agreement, STR hereby grants to Licensee a non-exclusive, non-transferable, indivisible, non-sublicensable license to use, copy, manipulate and extract data from the Licensed Materials for its own INTERNAL business purposes only.
1.4 Use of the Services and Materials. The Subscriber and any of its Authorised Users may only use the Services and the Materials for the Purpose (and not any other purpose, other than with the prior agreement of the Company) and subject always to the Restrictions on Use.
1.4.1 Subject to the provisions of the Agreement, the Subscriber and any of its Authorised Users may (in respect of Materials obtained from the Reports and/or Snapshots) (a) display such Materials on its computer screen, (b) print extracts included in such Materials and (c) download such Materials, provided that is done in accordance with the Download Restrictions.
1.4.2 Subject to the other of the Agreement, the Subscriber and any of its Authorised Users may (in respect of Materials obtained from the Database) (a) display such Materials on its computer screen, (b) print extracts included in such Materials and (c) download part of the Materials, provided that only an Insubstantial Part may be downloaded, stored and/or copied (including by one or a series of actions) and provided that is done in accordance with the Download Restrictions. All copies of any part of the Materials (held in whatever format) shall be the property of the Company.
1.4.3 If you are provided with a user identification code, password or any other information as part of the Company’s security procedures, you must treat such information as Confidential Information and personal to you, and you must not disclose it to any other person (unless the Company agrees that such information may be provided to a named Authorised User).
1.4.4 The Subscriber shall (and shall ensure that all of its Authorised Users shall) comply with the Conditions and all reasonable instructions of the Company in connection with the Website and the protection of the Materials and the Company’s Intellectual Property Rights.
1.4.5 The Company shall use its reasonable endeavours to ensure that the Services are available through the Website 24 hours a day (or otherwise as it may specify) but shall not be liable if for any reason the Website is unavailable at any time for any period and time for delivery of the Services shall not be of the essence of the Agreement.
1.4.6 Access to the Website may be suspended temporarily and without notice in the case of system failure, maintenance, repair, or for reasons beyond the Company’s reasonable control.
1.5 Restrictions on Use. Neither the Subscriber nor any Authorised User may:
1.5.1 (other than solely for the Purpose and otherwise in accordance with the Conditions) permit any Unauthorised Person access to or sight of any part of the Materials or sell, transfer, assign or make any Materials available to any Unauthorised Person (including on a local area network, a wide area network, on any intranet or extranet) and/or permit any distribution or delivery of any part of the Materials to any Unauthorised Person;
1.5.2 abstract, download, store, reproduce, transmit, display, copy, distribute or use the Materials (in whole or in part) other than solely for the Purpose and otherwise in accordance with the Conditions or with the prior agreement of the Company, unless Subscriber has signed a Republication Rights Agreement with Company;
1.5.3 decompile, disassemble or reverse engineer any of the computers, software programmes, databases or other systems (in whole or in part) used by the Company (including to provide the Services);
1.5.4 use the Services for any illegal purpose;
1.5.5 make any password provided by the Company available to any other person (except as expressly permitted under Clause 6.4);
1.5.6 use the Services or Materials to produce other documents containing any part of them, other than solely for the Purpose or with the prior consent of the Company;
1.5.7 modify any of the underlying data of any Materials in any way nor use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text; or
1.5.8 obscure or remove any copyright or trademark notices that appear on the Materials; or
1.5.9 (except with the Company’s prior consent) use any part of the Materials for any promotional or advertising material.
1.5.10 If any part of the Materials is copied or reproduced by you or on your behalf (in whatever form, including in a summary or analysed form and including electronically or otherwise) you shall ensure that the Company is clearly referred to on such copy or reproduction as the source of the Materials as follows: SOURCE: STR, INC. REPUBLICATION OR OTHER RE-USE OF THIS DATA WITHOUT THE EXPRESS WRITTEN PERMISSION OF STR IS STRICTLY PROHIBITED.
1.6 Copies. Except as may be expressly permitted or limited elsewhere in this Agreement, Licensee may make and maintain no more than two (2) copies of any Licensed Materials.
1.7 No Service Bureau Use. Except as may be expressly permitted or limited elsewhere in this Agreement, Licensee is prohibited from using the Licensed Materials in any way in connection with any service bureau or similar services. “Service bureau” means the processing of input data that is supplied by one or more third parties and the generation of output data (in the form of reports, charts, graphs or other pictorial representations, or the like) that is sold or licensed to any third parties.
1.8 No Distribution to Third Parties. Except as may be expressly permitted or limited in this Agreement, Licensee is prohibited from distributing, republishing or otherwise making the Licensed Materials or any part thereof (including any excerpts of the data and any manipulations of the data) available in any form whatsoever to any third party, other than Licensee’s accountants, attorneys or other professional advisors who are bound by a duty of confidentiality not to disclose such information.
1.9 Reservation of Rights. Licensee has no rights in connection with the Licensed Materials other than those rights expressly enumerated in the Agreement. All rights to the Licensed Materials not expressly enumerated herein are reserved to STR.
1.10 Security and Confidentiality. Except as may be expressly permitted or limited in elsewhere in this Agreement, Licensee agrees that the Licensed Materials contain confidential information and that it will distribute Licensed Materials only to those officers, directors, employees, agents, affiliates or subsidiaries who have a need to know such information or who have a right to access such information under applicable law. Licensee shall use commercially reasonable efforts to protect against unauthorized access to and to maintain the confidentiality of Licensed Materials. This provision shall survive indefinitely the termination of this agreement.
2. DISCLAIMERS AND LIMITATIONS OF LIABILITY
2.1 Disclaimer of Warranties. THE LICENSED MATERIALS ARE PROVIDED TO THE LICENSEE ON AN “AS IS” AND “AS AVAILABLE” BASIS. STR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED MATERIALS, THE SERVICES PROVIDED OR THE RESULTS OF USE THEREOF. WITHOUT LIMITING THE FOREGOING, STR DOES NOT WARRANT THAT THE LICENSED MATERIALS, THE SERVICES PROVIDED OR THE USE THEREOF ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. STR MAKES NO IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE.
2.2 Disclaimers. TO THE EXTENT PERMITTED BY APPLICABLE LAW STR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF STR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, STR SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIM RELATING IN ANY WAY TO (i) ANY DECISION MADE OR ACTION TAKEN BY LICENSEE IN RELIANCE UPON THE LICENSED MATERIALS.
2.3 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW STR’S TOTAL LIABILITY TO LICENSEE FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, INFRINGEMENT, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, SHALL BE LIMITED TO ALL FEES PAID TO STR BY THE LICENSEE DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CAUSE OF ACTION FIRST AROSE.
3.1 Liquidated Damages. In the event of a disclosure or distribution of the Licensed Materials by Licensee that violates the terms of this Agreement, Licensee shall be required to pay STR an amount equal to the sum of (i) the highest aggregate price that STR, in accordance with its then-current published prices, could have charged the unauthorized recipients for the Licensed Materials that are the subject of the violation, and (ii) the full price of the lowest level of republishing rights that Licensee would have been required to purchase from STR in order to have the right to make the unauthorized distribution, regardless of whether Licensee has previously paid for any lower level of republishing rights. This provision shall survive indefinitely the expiration or termination of this Agreement for any reason and does not waive either Party’s right to seek equitable or injunctive relief as may be available from any court of competent jurisdiction to restrain the other from breaching or threatening to breach this Agreement.
3.2 Application and Term. Unless expressly stated otherwise by the Company in writing, these Conditions apply to all provisions of services by the Company to the Subscriber (including the Services). Orders are in all cases subject to written acceptance by the Company, which may be in terms of an Order Confirmation.
3.2.1 Either party may terminate this Agreement at any time with thirty (30) days written notice to the other party.
3.2.2 Unless expressly stated otherwise by the Company in writing, these Conditions apply to all provisions of services by the Company to the Subscriber (including the Services). Orders are in all cases subject to written acceptance by the Company, which may be in terms of an Order Confirmation.
3.2.3 The Services shall not be available to you or any Authorised User after the Subscription Period, except where a new contract is entered into between you and us.
3.3 Obligations upon Termination. Within thirty (30) days of the termination or expiration of this Agreement for any reason, Licensee shall cease all use of the Licensed Materials and shall return or destroy, at STR’s option, all copies of the Licensed Materials and all other information relating thereto in Licensee’s possession or control as of the such date. This provision shall survive indefinitely the expiration or termination of this Agreement for any reason.
3.4 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the substantive laws of the State of Tennessee, without regard to its or any other jurisdiction’s laws governing conflicts of law. Action from or relating to this Agreement shall be brought only in the federal or state courts having jurisdiction in Tennessee. The parties also expressly waive any objections to venue.
3.5 Assignment. Licensee is prohibited from assigning this Agreement or delegating any of its duties under this Agreement without the prior written consent of STR.
3.6 Independent Relationship. The relationship between the parties is that of an independent contractor. Nothing in this agreement shall be deemed to create an employer/employee, principal/agent, partnership or joint venture relationship.
3.7 Notices. All notices required or permitted to be given hereunder shall be in writing and shall be deemed given i) when delivered in person, at the time of such delivery; ii) when delivered by facsimile transmission or e-mail, at the time of transmission (provided, however, that notice delivered by facsimile transmission shall only be effective if such notice is also delivered by hand or deposited in the mail, postage prepaid, registered, certified or express mail or by courier service within two (2) business days after its delivery by facsimile transmission); iii) when delivered by a courier service or by express mail, at the time of receipt; or iv) five (5) business days after being deposited in the mail, postage prepaid, registered or certified mail, addressed (in any such case) to the addresses listed on the first page of this Agreement or to such other address as either party may notify the other in writing.
3.8 Waiver. No waiver of any breach of this Agreement will be deemed to constitute a waiver of any subsequent breach of the same or any other provision.
3.10 Amendment. This Agreement may be amended only by the written agreement of both parties.
3.11 Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
3.12 Notice of Unauthorized Access. Licensee shall notify STR immediately upon Licensee’s becoming aware of any facts indicating that a third party may have obtained or may be about to obtain unauthorized access to the Licensed Materials, and shall fully cooperate with STR in its efforts to mitigate the damages caused by any such breach or potential breach.
3.13 Conflicting Provisions. In the event that any provision of these Standard Terms and Conditions directly conflicts with any other provision of the Agreement, the conflicting terms of such other provision shall control.
3.14 Remedies. In addition to any other rights or remedies that either party may have under applicable law for material breach of this Agreement, in the event of any material breach of this Agreement by either party, and following notice to the breaching party by the non-breaching party, the non-breaching party’s obligations under this contract shall terminate.
3.15 Indemnification. Licensee shall indemnify, defend and hold STR harmless against any claims, actions, losses, liabilities, damages and expenses (including reasonable attorneys fees and court costs) brought against STR by any third party that relates to or arises out of Licensee’s unauthorized disclosure of, misuse of or misrepresentation of the Licensed Materials.