Terms and Conditions
STR GLOBAL DATA PURCHASE AGREEMENT
THIS STR GLOBAL DATA PURCHASE AGREEMENT (the "Agreement") is made by and between STR Global Limited, d/b/a STR, located at The Blue Fin Building, 110 Southwark Street, London SE1 OTA (hereinafter referred to as "STR", the "Company", "Us", "We", or "Our"), and _________________________, located at _________________________________ (hereinafter referred to as the "Licensee", "You", or "Your")(each a "Party" and collectively the "Parties").
WHEREAS, STR offers several products and services for sale relating to the hospitality industry, including the following: (1) STR's Global Benchmarking Program (STAR Program); (2) STR's Forward STAR; and, (3) STR's AM:PM Hotel Database (collectively, "Licensed Materials," and further defined below);
WHEREAS, Licensee wishes to purchase one or more of the previously mentioned Licensed Materials produced by STR; and,
THEREFORE, the Parties wish to enter this Agreement, which outlines their obligations, rights and responsibilities relating to each of the Licensed Materials.
In consideration of the covenants set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby covenant and agree as follows:
Upon receipt of Licensee's signed enrollment form, and invoice will be issued detailing the products purchased and the total fee amount. Payment is due in full, including payment of all bank charges, immediately upon receipt.
1. Licensed Materials. The term "Licensed Materials" shall mean any newsletter, report, database, survey, or other similar resource, and all hospitality industry data contained therein, which has been created by STR and provided to Licensee hereunder, including, but not limited to the foregoing as they relate to STR's STAR Program, Forward STAR and the AM:PM Hotel Database.
2. 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 and in strict accordance with the terms set forth herein.
2.1 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.
2.2 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 or reports, charts, graphs, or other pictorial representations, or the like) that is sold or licensed to any third parties.
2.3 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 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, marketing professionals, or other professional advisors who are bound by a duty of confidentiality not to disclose such information.
2.4 Reservation of Rights. Licensee has no rights in connection with the Licensed Materials other than those rights expressly enumerated in this Agreement. All rights to the Licensed Materials not expressly enumerated herein are reserved to STR.
2.5 Security and Confidentiality. Except as my be expressly permitted or limited 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.
3. AM:PM Hotel Database: Restrictions on Use.
3.1 Use of Materials Available on AM:PM Hotel Database. The Licensee and its Permitted Users (as that term is defined in Section 5.2) may only use the materials available in the AM:PM Hotel Database for the sole purpose of the private or business research purposes of the Licensee, and such business research purposes shall include, but is not limited to, the use of AM:PM Database materials for the provision of: valuation reports, feasibility studies, credit or risk reports, or other research.
3.2 The Licensee and any of its Permitted Users may (in respect to the AM:PM Hotel Database materials) (a) display such materials on its computer screen, (b) print extracts included in such materials, and (c) download such materials, provided that it is downloaded in accordance with the following Download Restrictions: (a) the relevant part of the AM:PM Hotel Database 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 Licensee (in the case where the Licensee is an individual) or one Permitted User whose name and contact details have been supplied to and confirmed by STR; (b) no graphics or other items on the AM:PM Hotel Database website may be used separately from the corresponding text; and, (c) STR's copyright and trademark notices must appear in all copies and other reproductions. All copies of any part of the AM:PM Hotel Database materials (held in any format) shall remain the property of STRG.
3.4 STR shall use reasonable endeavors to ensure that the services provided through the AM:PM Hotel Database website are available twenty-four (24) hours per day, but shall not be liable if for any reason the AM:PM Hotel Database website is unavailable at any time period. Access to the AM:PM Hotel Database website may be suspended temporarily and without notice in the case of a system failure, maintenance, repair, or for reasons beyond the reasonable control of STR.
3.5 Restrictions on Use. Neither the Licensee nor any Permitted User may: (a) permit any unauthorized person to access or view any part of the AM:PM Hotel Database materials or sell, transfer, assign, or make any of the AM:PM Hotel Database materials available to any unauthorized person (including on a local area network, a wide area network, or any intranet or extranet) and/or permit any distribution or delivery of any part of the AM:PM Hotel Database materials to any unauthorized person; (b) abstract, download, store, reproduce, transmit, display, copy, distribute, or use the AM:PM Hotel Database materials, in whole or in part, other than solely for the purpose of the private or business research purposes of the Licensee; (c) decompile, disassemble, or reverse engineer any of the computers, software programs, databases, or other systems, in whole or in part, used by STR; (d) use the AM:PM Hotel Database materials for any illegal purpose; (e) make any password provided by STR available to any unauthorized person; (f) use the AM:PM Hotel Database materials to produce other derivative documents containing any part of them; (g) modify any of the underlying data of any AM:PM Hotel Database materials in any way or use any illustrations, photographs, video, or audio sequences or any graphics separately from any accompanying text; (h) obscure or remove any copyright or trademark notices that appear on the AM:PM Hotel Database materials; or, (i) use any part of the AM:PM Hotel Database materials for any promotional or advertising material. If any part of the AM:PM Hotel Database materials are copied or reproduced by Licensee in any form, including a summary or analysis, Licensee shall ensure that STRG is clearly attributed as follows: "SOURCE: STR, INC. – REPUBLICATION OR OTHER RE-USE OF THIS DATA WITHOUT THE EXPRESS WRITTEN PERMISSION OF STR IS STRICTLY PROHIBITED."
4. Disclaimers and Limitations of Liability.
4.1 Disclaimer of Warranties. THE LICENSED MATERIALS ARE PROVIDED TO 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 PRODUCTS PROVIDED, OR THE RESULTS OF USE THEREOF. WITHOUT LIMITING THE FOREGOING< STR DOES NOT WARRANT THAT THE LICENSED MATERIALS, THE PRODUCTS 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, NONINGRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING OUT OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR OTHERWISE. THE INFORMATION IN THE REPORTS IS NOT, AND SHOULD NOT BE, CONSIDERED TAX, ACCOUNTING, LEGAL, OR INVESTMENT ADVICE.
4.2 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 PUNATIVE DAMAGES EVEN IF STR HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. FURTHERMORE, STR SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIM RELATING IN ANY WAY TO ANY DECISION MADE OR ACTION TAKEN BY LICENSEE IN RELIANCE UPON THE LICENSED MATERIALS.
4.3 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, STR'S TOTAL LIABLITY 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 BY STR BY THE LICENSEE DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CAUSE OF ACTION FIRST AROSE.
5.1 Misuse or Misrepresentation of Data. Licensee shall not intentionally or knowingly use, quote, or restate the Licensed Materials for the purpose of misleading third parties or damaging the reputation of STR and its products. In the event Licensee engages in such conduct, STR shall have the right to terminate this Agreement immediately.
5.2 Distribution List; Website. Licensee may select certain "Permitted Users" to receive Reports via e-mail distribution. Permitted Users include those employees, agents, owners, franchisees, management companies, and legal and/or tax representatives of the Licensee who have a need to know the information for the purpose of Licensee's internal business operations and who have an obligation to keep such information confidential. Software providers, online travel agencies, revenue management consultants and other similar third parties shall not be considered Permitted Users. Licensee shall provide STR with the names and e-mail addresses of those Permitted Users. STR shall keep a list of the Permitted User's names and e-mail addresses ("Distribution List"). In addition, Licensee may select certain of its Permitted Users to view and access Licensee's Reports, data, and competitive sets on STR's Digital Platforms through an STR-assigned login and password. STR's Digital Platforms means all of STR's hardware, software, and code, including but not limited to: www.str.com, any str.com subdomain, dSTAR tools, STR's online customer portal, Licensee's credentials to access the port, and all STRG digital materials and information located on or accessed through these sites.
Licensee shall notify STR when the e-mail address belonging to a Permitted User is modified so that STR can make the change on the Distribution List. Licensee shall also notify STR when any individual Permitted User leaves its employment or is otherwise no longer affiliated with Licensee so that STR can remove the name from the Distribution List, and deactivate the Permitted User's e-mail address and/or login and password. If Licensee fails to so notify STR, STR will not be responsible for any subsequent unauthorized receipt of STR Reports, subsequent unauthorized access to STR's website, or any other breach of the confidentiality provisions herein that may occur should a Permitted User continue to receive reports or to use the assigned login and password to access the website after he or she is no longer employed by or otherwise affiliated with Licensee.
5.3 Default. In the event that Licensee does not make any payment that is due and owning under this Agreement, STR shall be under no obligation to deliver Licensed Materials to Licensee until such time as the overdue payment is paid, and STR's continuing to provide such Licensed Materials shall not constitute a waiver of Licensee's obligation to make timely payments. If Licensee fails to make payment for forty-five (45) days, STR may notify Licensee of its delinquency by written notice. If after thirty (30) days from receiving written notice from STR, Licensee continues to fail to make payment, STR shall have the right to terminate this Agreement immediately upon written notice. STR shall have the right to recover from Licensee any reasonable legal expenses it may incur in collecting overdue payment from Licensee.
5.4 Liquidated Damages. In the event of a use, 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.
5.5 Subscription Term; Renewals (only applicable to annual subscriptions). Licensee's subscription to the Licensed Materials shall be for a period of twelve (12) months, commencing on the date this Agreement is received and processed ("Initial Term"). Licensee shall receive the first report in its subscription within thirty (30) days of STR's receipt of this Agreement. Licensee's subscription shall automatically renew for successive twelve (12) month terms ("Renewal Term(s)" and collectively with the Initial Term, "Term(s)") unless Licensee notifies STR of its decision to not renew for another Term. Such notification may be by e-mail or telephone, but in either case hall be provided to STR no less than sixty (60) days prior to the end of the then-current Term. Unless otherwise agreed to by the Parties in separate writing, the terms of this Agreement shall carry over and remain in effect during each Term.
5.6 Choice of Law and Jurisdiction. This Agreement shall be construed exclusively in accordance with the laws of England. The Parties irrevocably agree that the Courts of England shall have non-exclusive jurisdiction to settle any disputes (including claims for set-off and counterclaims) which may arise in connection with the validity, effect, interpretation of, performance of, or the legal relationship established by this Agreement or otherwise arising in connection with this Agreement. Nothing in this Agreement shall prevent either Party from seeking an interim injunction in any court of competent jurisdiction.
5.7 Assignment. Licensee is prohibited from assigning its rights under this Agreement or delegating any of its duties under this Agreement without prior written consent of STR.
5.8 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.
5.9 Notices. Any notices, statements, and other communications to be given under the terms of this Agreement, or otherwise related to this Agreement, shall be provided in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or, (d) the second business day after sending by confirmed e-mail. Notices to Licensee shall be addressed to the attention of its principal contact as identified on the contact information sheet. Notices to STR shall be addressed to the attention of its Managing Director.
5.10 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.
5.12 Notice of Unauthorized Access. Licensee shall notify STR immediately upon 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 such breach or potential breach.
5.13 Conflicting Provisions. In the event that any provision of this Agreement directly conflicts with any other provision terms and conditions, the conflicting terms of this Agreement shall control.
5.14 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 Agreement shall terminate,
5.15 Indemnification. Licensee shall indemnify, defend, and hold STR harmless against any claims, actions, losses, liabilities, damages, and expenses (including reasonable attorney's fees and court costs) brought against STR by any third party that relates to our arises out of Licensee's unauthorized disclosure of, misuse of or misrepresentation of the Licensed Materials.
5.16 Taxes. STR shall be responsible for any tax on the sale of goods for which it may be responsible under applicable laws and treaties. Licensee shall be responsible for any tax on the purchase of goods for which it may be responsible under applicable laws and treaties, including withholding tax.
5.18 Severability. The provisions of this Agreement shall be deemed severable and if any portion shall be held invalid, illegal, or unenforceable for any reason, the remainder of this Agreement shall be effective and binding upon the Parties.
5.19 Cybersecurity. Licensee shall use STR's Digital Platforms and related software in accordance with all applicable laws, rules, and regulations.
Licensee shall not introduce or permit to be introduced any file, device, software, or routine that interferes or attempts to interfere with STR's Digital Platforms or any part hereof, including, but not limited to, any virus, worm malicious code, trojan horse, or any other contaminating or destructive feature.
Licensee agrees not to resell, lease, or sublicense to any third party the use of or access to STR Digital Platform and/or related software. Licensee also agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the components of the STR Digital Platform and/or related software.
Licensee shall be solely responsible for obtaining and using its own anti-virus, anti-trojan, anti-malware, and internet security software and appliances. STR does not warrant that STR's Digital Platforms, the Licensed Materials, or the applicable host server(s), or any data viewed from or downloaded from STR's Digital Platforms, will be safe or free from viruses, worms, trojan programs, or other malware or destructive mechanisms. Licensee is solely responsible for using appropriate internet and network security devices and/or software to ensure that no third parties take advantage of the fact that Licensee's computers are connected to the internet or are accessing STR's Digital Platforms through the internet.
Violation or default by the Licensee on any requirements or restriction set forth in this Section 5.19 shall constitute a breach of a material provision of this Agreement.
WHEREAS, the Parties sign below intending to create a legally binding and mutually beneficial Agreement.
STR GLOBAL LIMITED LICENSEE
Name: ________________ Name: ____________________
Title: _________________ Title: _____________________
Date: _________________ Date: _____________________