Pegasus Rich Media Services Terms and Conditions
These Terms and Conditions and the information contained in the enrollment form are referred to collectively as the “Agreement”.
1. Definitions.
(a) Pegasus means Pegasus Solutions Inc.
(b) Customer means the hotel owner, representation company, management company or franchisor identified in the enrollment form that is entering into this Agreement on behalf of itself and each Property.
(c) ICE Portal Functionality means the services and software operated by or on behalf of ICE Portal Inc. (“ICE”), including, without limitation, the ICE Portal Internet portal and the ICE Content Management System (CMS).
(d) Property means a lodging facility that is owned, managed, franchised or receiving representation/distribution services from Customer. (e) Rich Media Services means the services described in Section 2 below.
(f) Marks means trademarks, service marks, trade names, trade dress, logos, names and pictures of Customer and each Property.
2. Pegasus’ Duties. Subject to Customer’s adherence to the terms and conditions of this Agreement, Pegasus will make available to Customer the rich media hosting, management and distribution services as delivered by ICE via the ICE Portal Functionality in accordance with the service package options selected by Customer.
3. Customer's Duties. Customer agrees to, and if applicable, to cause each Property to: (a) provide Pegasus with information reasonably necessary to enable Pegasus to deliver the Rich Media Services; (b) at all times comply with the terms and conditions of this Agreement including the terms and conditions of the ICE Portal End User License Agreement (EULA) attached hereto as Exhibit A; (c) abide by all procedures and conditions established by ICE for access to and use of the ICE Portal Functionality; (d) pay to Pegasus all fees payable to Pegasus in connection with the Rich Media Services no later than the due date stated on the applicable Pegasus’ invoice, (e) pay all sales, use, excise, value added and similar taxes and duties levied by any taxing authority in connection with Pegasus' delivery of the Rich Media Services other than taxes that are levied upon Pegasus' net income or payroll; and (f) cooperate with Pegasus and any its third party suppliers in connection with Pegasus’ delivery of the Rich Media Services.
4. Payment Process. Customer shall pay, or shall cause the applicable Property to pay, to Pegasus the designated fee as specified in the enrollment form. In the event Customer or the applicable Property does not pay Pegasus the designated fee for the Rich Media Services then Pegasus reserves the right to offset the designated fee amount owed to Pegasus hereunder against any amounts that Pegasus or it affiliates may owe to Customer or any Property under any other arrangement or agreement. Customer shall be responsible for paying, or for causing the applicable Property to pay, all sales, use, excise, value added and similar taxes and duties levied by any taxing authority in connection with Pegasus' delivery of the Rich Media Services (other than taxes that are levied upon Pegasus' net income or payroll). Unless otherwise specified in this Agreement, no refunds will be payable to Customer in the event Customer terminates this Agreement prior to the expiration of the then current term.
5. Use of Marks and Content. Customer represents that it has the right to grant, and hereby grants, to Pegasus the right to use and display, and store on Pegasus' servers and on those of ICE, the Marks to the extent necessary for Pegasus to perform its obligations in accordance with this Agreement. Customer further represents and warrants that the text or other materials submitted by Customer and any of its Properties to Pegasus do not and will not: (i) infringe any third party's copyright, trademark, or other proprietary rights or right of publicity or privacy; or (ii) violate any applicable law, statute, ordinance or regulation. Pegasus acknowledges and agrees that it will not obtain any right, title or interest in or to the Marks or image content provided by Customer and its Properties pursuant to this Agreement.
6. Term. Subject to Pegasus’ acceptance of Customer’s enrollment form to receive the Rich Media Services, the term of this Agreement shall be deemed to have commenced as of the date of Customer’s enrollment, and subject to either party’s termination rights hereunder, shall continue for an initial term of 12 months. Thereafter, if either party hereto has not provided written notice of termination at least 30 calendar days prior to expiration of the initial term, this Agreement shall automatically renew for successive 12 month periods until terminated in writing by a party hereto at least 30 days prior the expiration of the then current term.
7. Termination. Customer may terminate this Agreement at any time upon prior written notice in the event Pegasus materially fails to deliver the Rich Media Services and such failure is not cured by Pegasus within 20 calendar days of Pegasus receiving written notification of such failure by Customer. Pegasus may terminate this Agreement upon: (i) 20 calendar days prior written notice to Customer in which case Customer shall receive a pro-rata refund of all unearned and prepaid fees; or (ii) upon prior written notice to Customer in the event of any breach of Customer's obligations hereunder that is not cured within 20 calendar days of Customer’s receipt of written notification by Pegasus regarding any such breach. Sections 4, 7, 8, 9 and 15 shall survive the termination of this Agreement.
8. Limitation of Liability. PEGASUS AND ITS AFFILIATED ENTITIES AND ITS SUPPLIERS SHALL HAVE NO LIABILITY FOR: (A) ANY ACT OR OMISSION, INCLUDING ANY TYPOGRAPHICAL ERRORS, OF SUPPLIER OR ANY PROPERTY, (B) ANY ERROR RESULTING FROM THE RICH MEDIA SERVICES THAT DOES NOT DIRECTLY RESULT FROM PEGASUS' WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR (C) ANY ACCIDENTS OR INCIDENTS INVOLVING THE LODGING FACILITIES OR OTHER SERVICES ASSOCIATED WITH A PROPERTY. PEGASUS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PERFORMANCE OF THE RICH MEDIA SERVICES AND EXPRESSLY DISCLAIMS ANY WARRANTIES THAT COULD APPLY. IN NO EVENT SHALL PEGASUS OR ITS AFFILIATES OR ANY OF ITS SUPPLIERS BE LIABLE FOR (X) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, OR (Y) ANY DIRECT OR OTHER DAMAGES IN EXCESS OF THE FEES PAID TO PEGASUS HEREUNDER DURING THE 12 MONTHS PRECEDING ANY CLAIM BY CUSTOMER. 9. Governing Law. If Customer is located in North America, Central America or South America (the “Americas”), this Agreement shall be governed by and interpreted pursuant to the laws of the State of Texas, USA, without reference to its conflict of laws principles, and venue for any suit, cause of action, or other dispute relating to this Agreement shall be exclusively in Dallas County, Texas, and each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Dallas County, Texas with respect to the same. If Customer is located outside the Americas, this Agreement shall be governed by and construed in accordance with the laws of England without regard to any conflicts of law principles and each party agrees that the courts of England shall have exclusive jurisdiction to resolve any suit, cause of action or other dispute relating to this Agreement, and each party irrevocably submits to the jurisdiction of the courts located in England with respect to the same. 10. Compliance with Laws. Notwithstanding anything to the contrary contained in this Agreement, each of Customer and Pegasus shall fully comply with all material laws, regulations and governmental orders applicable to their performance of this Agreement, including without limitation those regarding trade sanctions (U.S. and otherwise), export control, data protection and the processing of personal data. Pegasus represents that it has on file with the United States Department of Commerce a certification that Pegasus adheres to the “safe harbor framework” developed by such Department in coordination with the European Commission with respect to the European Commission’s Directive on data protection. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Pegasus or any of its affiliates be required to perform hereunder to the extent that Pegasus reasonably concludes that such performance may violate any applicable law, regulation or governmental order.
11. Status of Parties. Pegasus and Customer are independent contractors. Pegasus’ delivery of the Rich Media Services does not constitute a partnership, joint venture, or similar arrangement between Pegasus and Customer. Neither party nor any of their respective directors, officers, employees or agents shall be deemed to be an agent, employee, or legal representative of the other. Neither party hereto is authorized to bind the other or otherwise act in the name of or on behalf of the other. Any person or entity that is not a party to this Agreement shall have no right to enforce any of its terms. 12. Waiver. Except as otherwise provided herein, the failure of a party hereto to exercise any of its rights or to enforce any of the provisions of this Agreement on any occasion shall not be a waiver of such right or provision, nor affect the right of such party thereafter to enforce such right or provision.
13. Severability. If any provision of this Agreement shall be held illegal, invalid or unenforceable by a court of competent jurisdiction, in whole or in part, such provision shall be deemed modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of the remaining provisions shall not be affected.
14. Force Majeure. If the performance of any obligation under this Agreement (except for payment) is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt written notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.
15. Indemnification. Customer shall indemnify and hold harmless Pegasus and its officers, directors and owners (and those of its affiliates) from and against all liabilities, costs, damages and expenses (including reasonable legal fees) arising out of (i) any claims related to or in connection a guest stay at a Property or (ii) any breach by Customer or a Property of any provision of this Agreement.
16. Confidentiality. While performing under this Agreement, the parties hereto may exchange and be exposed to “confidential information” and materials (technical and non-technical) of the other party. Both parties agree that such information shall be kept confidential and not disclosed to third parties or used for any purpose other than performing under this Agreement. Any item will not be considered to be confidential information if it is; (i) already available to the public other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by personnel or agents of one party without any use in any way of the Confidential Information of the other; (iv) proven to be already known to the recipient at the time of disclosure; or (v) produced in compliance with applicable law or a court order, provided the receiving party first gives the disclosing party reasonable notice of such law or order and gives the disclosing party an opportunity to object to and/or attempt to limit such production. 17. Entire Agreement. This Agreement constitutes the entire agreement between Pegasus and Customer with respect to the subject matter of this Agreement and supersedes and replaces any and all other agreements and representations, verbal or written, with respect thereto. There are no representations, warranties or agreements made or relied upon by either party with respect to the subject matter of this Agreement that are not set forth in this Agreement. This Agreement may not be amended or modified other than by a written agreement executed by Pegasus and Customer.
EXHIBIT A
ICE END-USER LICENSE AGREEMENT
Notice to Customer: This End User License Agreement (EULA) required by ICE Portal, Inc. (“ICE”) governs your access and use of the ICE Software Product and associated services provided by ICE. Customer is granted access to the ICE Functionality Software Product in consideration of Customer’s agreement to the terms and conditions set forth below.
(a) “Content” means collectively all visuals (i.e. 360º virtual tours, videos), photographic images, text, audio, graphics, and other things embodied therein.
(b) “Software Product” means the ICE Portal and the ICE Content Management System (CMS) and any other related software, media or documentation provided to Customer and its Hotels by ICE in connection with its receipt of the Pegasus Rich Media Services.
(c) “ICE Offering” means the collectively the Software Product and associated services provided by ICE, including Content Hosting on ICE servers, maintenance and support and Content distribution to Customer’s sites and third party distribution channels.
2. Use of ICE Offering.
(a) Rights Granted: ICE hereby grants to Customer on behalf of itself and its participating hotels, a non-exclusive, limited, non- transferable right to access and use the ICE Offering. Customer hereby agrees that by using the ICE Offering, it assigns ICE, full but non-exclusive rights to distribute Customer’s Content in connection with ICE’s delivery to Customer of the ICE Offering. Customer grants ICE a license to use, publish, perform and display, encode, digitize, distribute, transmit, and repurpose the Content, throughout the universe of the Internet.
(b) Additional Rights: ICE and/or its assigns shall also have the right to use the content for the purposes of marketing and promoting Customer’s business as a user of the ICE Offering and if ICE or its affiliates have produced the materials, for the purposes of marketing and promoting the use of ICE and/or its assigns’ production services.
(c) Ownership as to Content Provided by Customer to ICE: As between ICE and/or its assigns and Customer, ICE and/or its assigns acknowledges and agrees that the Content and the goodwill associated therewith are the sole and exclusive property of Customer and that all use of the Content by ICE and/or its assigns shall inure to the benefit of and be on behalf of Customer.
(d) Customer’s Use: ICE and/or its assigns will offer Customer, on a non-exclusive basis, all content digitized by ICE and/or its assigns pursuant to this EULA, for the Customer to host on its website or brand website.
(e) Termination: This EULA and Customer’s access to the ICE Offering may be terminated immediately by the ICE, if: (i) Customer is in breach or default of any provision of this EULA (including default of any outstanding payments), or (ii) has committed any act of gross negligence in performing its obligations hereunder, which breach shall not have been cured within ten (10) calendar days after delivery of written notice. The termination of this EULA for any reason shall be without prejudice to any rights of either party against the other which may have accrued before the date of such termination. Upon terminating this EULA for any reason Customer’s Content may be removed from the ICE Portal.
(f) Representations and Warranties: Customer represents, warrants and convents that no Content provided to ICE and/or its assigns under this ELA constitutes or shall constitute libel, obscenity, unlawful comparative advertising, false advertising or any other unlawful matter, or infringes in any manner any copyright, patent, trademark, trade secret, right of publicity or any other intellectual property right or any other right of any third party.
(g) Indemnification: Customer will indemnify, defend, and forever hold harmless ICE and its assigns and its representative affiliates, officers, directors, employees, agents, shareholders, members, partners and managers from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any claims or actions relating to the use of the Content (except to the extent such use is indemnified against by ICE and/or its assigns) and/or Customer’s breach of any of its representations, warranties, convents or agreements hereunder.
3. Copyrights and Trademarks. The entire content included in the ICE Portal except Customer’s Content as described above, including but not limited to text, design, graphics, interfaces, or code and the selection and arrangements thereof is copyrighted as a collective work under the United States and other copyright laws, and is the property ICE, its affiliates, its partners and/or the customers represented within the ICE Portal database. The collective work includes works that are licensed to ICE as ALL RIGHTS RESERVED. All trademarks, service marks, and trade names (collectively the "Marks") are trademarks or registered trademarks of and are proprietary to the respective owner(s) that have granted ICE the right and license the use of such Marks. Northing in this EULA grants Customer, any right, tile or license to any content hosted on the ICE Portal.
4. User Participation. ICE is not in any manner responsible for the erroneous content and/or materials provided or uploaded by any person to the ICE Portal. Customer acknowledges that by ICE providing the ability to view, manage (add, change, delete) and distribute content via the ICE Portal, ICE is merely acting as a conduit for such distribution and is not undertaking any obligation or liability relating to any content within the ICE Portal database. However, ICE reserves the right to block or remove communications or materials that it determines to be in violation of this EULA or other ICE policies, including, without limitation (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of a copyright, trademark or; other intellectual property right of another or (d) violates any law or regulation or (e) offensive or otherwise unacceptable to ICE at its sole discretion. Provided, nothing herein should be construed to require ICE to edit or modify content in any manner and ICE shall not be construed as an editor or publisher of any content.
5. User Submission. Except for any personally identifiable information ICE may collect from Customer under the guidelines established in the ICE privacy policy, any material, information or other communication Customer transmits, uploads or posts to ICE’s website ("Communications") will be considered non-confidential and non-proprietary. ICE will have no obligations with respect to the Communications. ICE and its partners and/or affiliates will be free to distribute, incorporate and otherwise use the Content and all data, images, sounds, text, and other things embodied therein for any and all commercial or non-commercial purposes.
6. Third-Party Links. In an attempt to provide increased value, the ICE Portal may contain links to other sites on the Internet that are owned and operated by third party vendors and other third parties (the "External Sites"). However, even if the third party is affiliated with ICE, ICE has no control over these linked sites, all of which have separate privacy and data collection practices, independent of ICE. ICE has no responsibility or liability for these independent policies or actions and is not responsible for the privacy practices or content of such web sites.
7. Disclaimer. ICE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS CONTENT OF THE ICE PORTAL OR ANY WEBSITE MAINTAINED BY ICE OR THE CONTENT OF ANY EXTERNAL SITES. THE ICE OFFERING AND ANY CONTENT PROVIDED BY ICE OR ANY THIRD PARTY, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ICE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ICE WILL NOT REPRESENT OR WARRANT THAT THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THE SERVERS THAT MAKES THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ICE DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN CONNECTION WITH THE ICE OFFERING IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.
8. Limitation of Liability. IN NO EVENT SHALL ICE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF ICE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, THE ICE OFFERING. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE WITH RESPECT TO THE ICE OFFERING (INCLUDING BUT NOT LIMITED TO THE USE OF THE SOFTWARE PRODUCT) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES. ICE’S FAILURE TO INSIST UPON OR ENFORCE STRICT PERFORMANCE OF ANY PROVISION OF THESE TERMS AND CONDITIONS SHALL NOT BE CONSTRUED AS A WAIVER OF ANY PROVISION OR RIGHT.
9. Applicable Laws. Customer’s use of the Ice Offering shall be governed in all respects by the laws of the state of Florida, U.S.A., without regard to choice of law provisions, and not by the 1980 U.N. Convention on Contracts for the international Sale of Goods. Customer agrees that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to Customer’s use of the ICE Offering (including but not limited to the use of the Software Product) shall be in the state or federal courts located in Broward County, Florida.
10. Miscellaneous. ICE may assign its rights and duties under this EULA to any party at any time without notice to Customer. Those who choose to use the Software Product from locations outside Florida do so on their own initiative and are responsible for compliance with applicable local laws. This EULA shall inure to the benefit of and be binding upon on each of the parties’ successors and assigns.