TERMS AND CONDITIONS

These Terms and Conditions (“Terms”) govern the relationship between HotStats Limited (“HotStats”) and the company or other legal entity that has executed an Order Form referencing these Terms (“Customer ”). These Terms take effect on the date of the last signature on the applicable Order Form (the “Effective Date”).

HotStats may update these Terms from time to time at its sole discretion by posting a revised version at www.hotstats.com/terms-and-conditions. Updates become effective upon posting. If material changes are made, HotStats will use commercially reasonable efforts to notify Customer by email or through the Services. Customer’s continued use of the Services after such notice or posting to HotStats’ website constitutes acceptance of the updated Terms.

HotStats and Customer are each a “Party” and together the “Parties.”

1. Definitions.

For purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms will have the following meanings:

• “Aggregated Data” means data or information derived from Customer Data or usage of the Services that has been de-identified and combined with similar data from other customers or sources such that it no longer identifies Company, any individual, or any specific end user.
• “Agreement” means these Terms together with all Order Forms.
• “Benchmark Report” means a report presenting either External Benchmarking or Internal Benchmarking.
• “Business Day” means any day (other than Saturday or Sunday) on which banks in the Territory are open for their full range of normal business.
• “Business Hours” means 9:30 a.m. to 5:30 p.m., British Standard Time, on a Business Day.
• “CompSet” means the aggregated financial data contained in the System used by the relevant Customer property for benchmarking purposes.
• “Competitor” means any entity that: (i) directly or indirectly owns or controls one or more hotel brands; or (ii) is primarily engaged (i.e., generates 75% or more of its gross revenues from trailing 12 months), directly or indirectly, in the management, licensing, franchising, or operation (as opposed to passive ownership) of branded hotels in the Territory.
• “Confidential Information” means any information of a confidential or proprietary nature provided by a Party to the other Party hereunder including (i) attorney-client privileged materials, attorney work product, rates and pricing, strategic plans, product information, research & development, account information, research information, information that contains trade secrets, financial/accounting information, human resources/personnel information, benefits-related information, payroll information, marketing/sales information, contact information, information regarding businesses, plans, operations, mergers, acquisitions, divestitures, third party contracts, licenses, internal or external audits, law suits, arbitrations, mediations, regulatory compliance or other information, (ii) Customer Data, (iii) third party information; (v) HotStats Content; and (vi) information treated or defined as confidential under applicable law.
• “Data Reporting Rules” means the rules governing anonymity and confidentiality of Customer Data Submissions in the preparation of HotStats Reports pursuant to the rules set forth in Exhibit A (Rules of CompSet Formation), and as may be required by law.
• “Data Submission” means data submitted by the Customer pursuant to this Agreement or, when referring to Third Parties, data submitted to HotStats under a separate HotStats Customer Agreement.
• “Database” means the systems that warehouse the data, including Third Party Data, from which HotStats Reports are compiled.
• “External Benchmarking” means the comparison of HotStats’ KPIs for a Customer’s hotel against a qualifying CompSet of competitor hotels selected by the Customer.
• “Hotel Properties” means the set of hotels operated or owned by the Customer, including affiliated hotel brands, and hotel franchisees contracted to the Customer.
• “HotStats Content” means HotStats Reports, CompSets, Database, Aggregated Data, System, Software, Services, Third Party Data, and related materials and components of each of the foregoing.
• “HotStats KPIs” means the key performance indicators embodied in the HotStats Reports chosen by HotStats in its sole discretion.
• “HotStats Reports” means the suite of data and graphical HotStats’ market and competitor intelligence reports, including the Benchmark Reports, delivered through the System and made available to the Customer under this Agreement.
• “Intellectual Property Rights” means all vested contingent and future intellectual property rights including but not limited to copyright, trademark, service mark, trade dress, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, database rights, and any applications for the protection or registration of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created in any technology, system, invention, medium, or content, including without limitation text, print, pictures, photographs, video, Marks, logos, designs, drawings, artistic and graphical works, music, speech, computer software and documentation, any other works of authorship, and any form, method or manner of expression or communication.
• “Internal Benchmarking” means the comparison of HotStats’ KPIs for a Customer’s own hotels against the Customer’s own individual or selected own CompSet of hotels.
• “Losses” means all losses, liabilities, damages, fines, penalties, and claims, including related costs such as reasonable legal fees, investigation costs, litigation expenses, settlements, and judgments.
• “Order Form” means any document or schedule executed by both Parties that references this Agreement and specifies the applicable commercial terms for the Services, including the Fees and Subscription Term.
• "Personally Identifiable Information" or “PII” means information that identifies, relates to, describes or can reasonably be linked to an individual, whether alone or in combination with other data.
• “Services” means the provision of HotStats Reports and any other services provided by HotStats under this Agreement, as further described in an applicable Order Form.
• “Software” means any software made available to the Customer to access the Database or the System.
• “Customer Data” means all data provided by the Customer to HotStats, including any data of Customer processed, stored, or transmitted by HotStats in providing the Services.
• “Subscription Fees” means the recurring fees payable by Customer to HotStats for access to and use of the Services during the applicable Subscription Term, as set forth in an Order Form.
• “Subscription Term” means the period stated in the Order Form during which Customer is authorized to access and use the Services under an applicable Order Form.
• “System” means the HotStats computer systems, Software, and related infrastructure through which the Database is accessed and/or HotStats Reports are delivered.
• “Term” means the duration of this Agreement as defined in Section 10 or an applicable Order Form.
• “Third Party Data” means data submitted to HotStats by any party other than the Customer.
• “User Login” means the unique combination of a user ID and password assigned exclusively to an authorized user by the System.

2. HotStats Services.

2.1 HotStats grants Customer for the applicable Subscription Term a non-exclusive, non-transferable, non-sublicensable and revocable subscription right to access and use the Services, solely for Customer’s internal business purposes.

2.2 Customer shall not:

• 2.2.1 provide access to the Services to any third party, including by selling, reselling, renting, leasing, or time-sharing, or offering a service bureau;
• 2.2.2 attempt unauthorized access to the Services, Database or System or related components;
• 2.2.3 modify, copy, disassemble, decompile, reverse engineer or create derivative works, or attempt to discover the source code of the Services, Software or HotStats Data;
• 2.2.4 use the Services in violation of any applicable laws, including anti-trust laws;
• 2.2.5 use the Services to compile a database; or
• 2.2.6 use the Services in any manner other than as expressly permitted herein.

HotStats may monitor use of the Services to ensure compliance with this Agreement. HotStats may suspend access immediately if Customer’s use, in HotStats’ judgment, threatens the security, integrity, or availability of its services.

2.3 Customer will:

• 2.3.1 provide HotStats with reasonable access to Customer Data as necessary for HotStats to perform its obligations;
• 2.3.2 ensure all users comply with this Agreement and indemnify HotStats for their acts and omissions;
• 2.3.3 ensure that Customer Data is accurate, lawfully obtained, and free from malicious code;
• 2.3.4 maintain safeguards to prevent unauthorized access or use of the Services, and promptly notify HotStats of any such incidents; and
• 2.3.5 promptly inform HotStats of any changes in Customer’s Hotel Properties covered by an Order Form.

Customer is solely responsible for its users’ actions relating to the Services, and any user breach shall be deemed a breach by Customer.

2.4 Customer acknowledges and agrees that use of the Services does not require Customer to provide HotStats any PII; therefore, Customer shall not (and shall ensure that its representatives and users do not) upload, provide, or submit any PII to the Services, and HotStats shall have no responsibility or liability with respect to any PII so submitted in violation of this Section.

2.5 Customer must implement and maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Services and Customer Data.

2.6 Except as otherwise authorized by HotStats, only Customer employees with assigned User Logins may access the HotStats Reports.

2.7 Customer may not store HotStats Reports on any server or networked system accessible to unauthorized third parties.

3. The Data Submission

3.1 Customer shall provide HotStats with the Data Submission as specified in the applicable Order Form.

3.2 Customer grants HotStats a non-exclusive, perpetual, worldwide, royalty-free license to use the Customer Data for the following purposes:

• 3.2.1 providing the Services and fulfilling its obligations under this Agreement, including necessary backups, security, disaster recovery, and testing;
• 3.2.2 creating Aggregated Data and derived data, including the provision of HotStats Reports and market intelligence to other customers of HotStats;
• 3.2.3 benchmarking, research, or development of the Services; and
• 3.2.4 retaining and continuing to use historic Customer Data related to any Hotel Property, including after a change in ownership or management of such Property, without the need for further consent from Customer, any successor owner, or other third party, for the purposes set forth in (a) and (b)

HotStats may sublicense these rights to its affiliates or subcontractors as reasonably necessary to fulfil the foregoing purposes, subject to confidentiality obligations no less protective than those set forth in this Agreement.

4. HotStats Reports

• 4.1 HotStats may update the System, HotStats Content, or supporting materials from time to time, provided such updates do not materially degrade the quality of the Reports.
• 4.2 HotStats will use commercially reasonable efforts to make the HotStats Reports available to Customer during Business Hours on Business Days in the Territory.
• 4.3 While HotStats applies best practices to ensure the reliability of its data, it does not verify or warrant the accuracy of the data or ratios used in, or presented in, the HotStats Reports.

5. Subscription Fees and Payment

5.1 Customer’s access to and use of the Services is subject to Customer’s payment of the applicable Subscription Fees. If the Subscription Term is for multiple years, the specified annual fees are due in advance in each year of the Order Form, or as otherwise specified on the Order Form. All Fees are non-refundable, noncancellable and not subject to set-off.

5.2 Unless otherwise stated in the applicable Order Form, HotStats will invoice Customer annually in advance for Subscription Fees, and Customer shall pay all invoiced amounts within thirty (30) days of the invoice date in the currency stated on the relevant Order Form. Failure to make timely payments is a material breach of this Agreement and HotStats may suspend its performance obligations including access to the HotStats Reports and Database until payment is received in full. HotStats is not liable for any delays or claims arising from such suspension.

5.3 Late payments may accrue interest at the maximum rate permitted by applicable law. All fees are exclusive of applicable taxes, which shall be borne by Customer, excluding taxes based on HotStats’ income.

5.4 HotStats may update its Subscription Fees from time to time. Any changes will be communicated to Customer at least 30 days in advance and will take effect on first day after the notice period has ended.

6. Customer’s Access to HotStats

• 6.1 HotStats may disable Customer’s access if, in its sole discretion, Customer’s use causes or is likely to cause disruption to the System or Database.
• 6.2 If HotStats is required to disable the Customer’s access to HotStats Reports, HotStats will use commercially reasonable efforts to provide written notice including the reason and any required remedial actions to enable the Customer to resume access to the HotStats Reports.
• 6.3 If such remediation increases HotStats’ costs, it may adjust the Subscription Fees unless it chooses to terminate under Section 10.4.

6.4 Customer may only access those parts of the System for which it is expressly authorized.

6.5 Customer must not use the System in violation of any terms of this Agreement.

6.6 Customer is responsible for ensuring that authorized users prevent third-party access and avoid negligent or unauthorized use of their User Logins.

6.7 The Customer may not use its access to the System in any manner which may result in the System, the Database or the HotStats Reports being accessed, used, stored or redistributed through any other database, network or other distribution medium.

7. Intellectual Property

7.1 All Intellectual Property Rights in and to HotStats Content, including any derivative works or materials even if developed in connection with the Services, are and shall remain the exclusive property of HotStats. Except as expressly provided herein, Customer acquires no rights, title, or interest in any such materials.

7.2 Customer acknowledges that any breach of this Section may cause irreparable harm to HotStats for which monetary damages may be inadequate. Accordingly, HotStats may seek injunctive or other equitable relief in addition to any other remedies available at law or in equity.

8. Confidentiality

8.1 Each Party agrees to use the other’s Confidential Information only as necessary to perform its obligations hereunder or as expressly permitted herein, shall not otherwise disclose the Confidential Information to any third party, and shall protect the confidentiality of the disclosing Party’s Confidential Information with the same standard of care as such receiving Party uses or would use to protect its own Confidential Information, but in no event shall the receiving Party use less than a reasonable standard of care prevailing in the receiving Party’s industry. For the avoidance of doubt, Confidential Information does not include information which is (i) already known by the receiving Party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the disclosing Party; or (iv) independently developed without access to the disclosing Party’s Confidential Information.

8.2 Notwithstanding the foregoing, a Party may share the other Party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each Party shall be responsible for any breach of confidentiality by any of its Representatives.

8.3 A Party may disclose the other’s Confidential Information if required by law, subpoena, or court order, but prior to such disclosure it must promptly notify the other Party (unless legally prohibited) to allow an opportunity to seek a protective order or limit the disclosure. If no protective relief is obtained, the disclosing Party will only share the portion of Confidential Information its counsel advises is legally required and will use reasonable efforts to ensure it remains confidential.

8.4 Upon termination of this Agreement or upon written request by the disclosing Party, each Party shall promptly return or securely destroy all Confidential Information in its possession, including any copies, unless otherwise agreed in writing. A breach of this Section may cause irreparable harm, entitling the non-breaching Party to seek immediate injunctive or other equitable relief, in addition to any available legal remedies.

8.5 This Section shall survive termination of this Agreement in accordance with its terms.

9. Limitation of Liability and Indemnification

9.1 HotStats shall not be liable for any losses arising from:

• 9.1.1 defects, failures, interruptions, or unavailability of the System or the Database; or
• 9.1.2 errors, inaccuracies, or corruption in the HotStats Reports or the Database.

9.2 The Customer shall be liable for, and shall indemnify HotStats against, any costs, losses, damages, liabilities, expenses, claims, or proceedings arising directly or indirectly from:

• 9.2.1 the Customer’s breach of this Agreement; or
• 9.2.2 the Customer’s use of the System, Database, or HotStats Reports in a manner not permitted under this Agreement.

9.3 If the Customer gains any benefit from a breach of this Agreement, the Customer shall, in addition to any other remedies available to HotStats, indemnify HotStats for any resulting loss and reimburse HotStats for any such gain.

9.4 TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, RESTITUTION, BREACH OF STATUTORY DUTY, MISREPRESENTATION, OR OTHERWISE) FOR THE FOLLOWING ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES; OR (B) ANY LOSS (DIRECT OR INDIRECT) OF PROFITS, SAVINGS, GOODWILL, REVENUE, BUSINESS, ANTICIPATED SAVINGS, BUSINESS OPPORTUNITY, REPUTATION, OR WASTED EXPENDITURE.

9.5 HOTSTATS’ TOTAL AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL SUBSCRIPTION FEES PAID OR PAYABLE BY THE CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9.6 Nothing in this Agreement excludes or limits either Party’s liability for:

• 9.6.1 death or personal injury caused by its negligence;
• 9.6.2 fraud or fraudulent misrepresentation; or
• 9.6.3 any other liability that cannot be excluded or limited by applicable law.

10. Term and Termination

10.1 Term of Agreement. This Agreement begins on the date the Order Form is signed by the Customer (the “Effective Date”) and continues until the later to occur of: (i) the fifth anniversary of the Effective Date, or (ii) the expiration of the Subscription Term of the last outstanding Order Form.

10.2 Term of Order Forms. Unless otherwise specified in the relevant Order Form, the initial term of each Order Form shall commence on the start date stated therein and continue for the term set out in such Order Form (the “Initial Term”). Thereafter, the Order Form shall automatically renew for additional successive periods of 12 months each (or such other period as may be set forth on such Order Form (each, a “Renewal Term” and together with the Initial Term, the “Subscription Term”), unless either Party provides at least thirty (30) days’ prior written notice to the other Party of its intent to not renew such Order Form.

10.3 HotStats may adjust fees for any Renewal Term by providing the Customer with at least thirty (30) days’ prior written notice.

10.4 Either Party may terminate this Agreement or an Order Form if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice of the same. Either Party may terminate this Agreement immediately upon written notice to the other Party if such other Party becomes insolvent, files for bankruptcy, or ceases to do business in the ordinary course. The termination of this Agreement shall automatically result in the termination of any and all Order Forms.

10.5 The discontinuation of Data Submissions by any Third Party Data Contributor shall not be considered a material breach of this Agreement.

10.6 Upon termination or expiration of this Agreement, HotStats is not required to permanently delete the Data Submissions but may only use such data to verify or validate the accuracy of previously issued reports. HotStats retains ownership of all Aggregated Data and other derived data and has no obligation to delete or discontinue use of such data.

10.7 Any provisions of this Agreement that by their nature should survive termination shall remain in effect following termination or expiration.

11. Assignment

Neither Party may assign, transfer, or subcontract any part of this Agreement without the other Party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, HotStats may assign this Agreement without consent to an affiliate in connection with a merger, acquisition, corporate reorganization, or sale of substantially all its assets. However, if such assignment is to a Competitor of Customer, Customer may immediately terminate this Agreement without further liability. This Agreement will bind and benefit each Party’s permitted successors and assigns.

12. Notices

12.1 All notices under this Agreement must be in writing and signed by an authorized representative of the sending Party.

12.2 Notices are deemed effective:

• 12.2.1 upon delivery, if sent by courier or messenger during recipient’s normal Business Hours;
• 12.2.2 when sent, if transmitted by facsimile or e-mail;
• 12.2.3 five Business Days after mailing by national postal service; or
• 12.2.4 ten Business Days after mailing by airmail, postage prepaid.

12.3 Notices must be sent to the most recently designated address or contact information provided by the receiving Party.

13. Force Majeure

Neither Party is liable for delays or failure to perform due to causes beyond its reasonable control that could not be avoided with reasonable precautions or alternative means (“Force Majeure Events”), including power outages, internet failure, labor disputes, acts of war or terrorism, natural disasters, or government actions. If a Force Majeure Event occurs, the non-performing Party will be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. Any Party so delayed in its performance will promptly notify the other by telephone and describe at a reasonable level of detail the circumstances causing such delay (to be confirmed in writing within twenty-four (24) hours after telephonic notice).

14. Severability

If any provision of this Agreement is found to be invalid or unenforceable, the remainder shall remain in full force and effect to the extent permitted by law.

15. Entire Agreement

15.1 This Agreement and the applicable Order Form constitute the entire agreement between the Parties and supersede all prior understandings, whether oral or written, relating to its subject matter.

15.2 This Agreement and any applicable Order Form may only be amended in a writing signed by both Parties, unless otherwise stated herein.

16. No Waiver

Failure by either Party to enforce any provision of this Agreement will not constitute a waiver of that provision or any other, nor limit the Party’s rights to enforce the provision in the future.

17. Taxes

If required by any law, statute, or regulation, HotStats will collect from the Customer and remit to the appropriate authorities, any Taxes applicable to the provision of the Services, other than income taxes payable by HotStats.

18. Governing Law and Jurisdiction

This Agreement shall be governed by and interpreted pursuant to the laws of England and Wales excluding any laws regarding the choice or conflict of laws.

19. Compliance with Laws

19.1 Each Party warrants that it will comply with all applicable laws and regulations, including privacy and security laws, and holds all required permits.

19.2 Each Party represents that it is duly organized and authorized to enter into this Agreement.

19.3 Each Party warrants that its performance under this Agreement will not violate any other agreement to which it is bound.

19.4 EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

20. Counterparts

This Agreement may be executed in counterparts and exchanged by facsimile or electronically scanned copy. Each such counterpart will be deemed to be an original and all such counterparts together will constitute one and the same Agreement.

21. Interpretation

Neither party will be deemed the drafter of this Agreement, nor shall any provision be construed against either party as the drafter.

22. Survival

Any provisions that by their nature should survive termination, such as those relating to confidentiality, data protection, indemnification, limitation of liability, and payment obligations, shall survive expiration or termination of this Agreement.

23. Relationship of the Parties

The Parties are independent contractors. Nothing in this Agreement creates a joint venture, partnership, or agency relationship. Each Party remains solely responsible for its personnel and employment obligations.