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LICENSE AGREEMENT PLEASE READ THE FOLLOWING CAREFULLY. BY “CLICKING” ON THE “I AGREE” BUTTON AND ACCESSING THE HOTEL SYSTEMSPRO, LLC (“HOTEL SYSTEMSPRO”) SITE AND INSTALLING OR USING THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF AND AGREEMENT TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT “CLICK” ON THE “I AGREE” BUTTON BELOW, BUT “CLICK” ON THE “I DISAGREE” BUTTON. THIS AGREEMENT, TOGETHER WITH THE COMPLETED “NEW PROPERTY SETUP FORM” PROVIDED ON THE “GETTING STARTED” PAGE (THE “SETUP FORM”), CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND HOTEL SYSTEMSPRO WITH RESPECT TO THIS LICENSE AGREEMENT, SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THIS AGREEMENT, AND GOVERNS ALL PAST, CURRENT AND FUTURE USE OF THE SOFTWARE REFERRED TO IN THIS AGREEMENT. Section 1. License Grant and Authority. Subject to Section 6 hereof, Hotel SystemsPro, LLC ("Hotel SystemsPro") grants to the operator of the hotel property described and referenced in the Setup Form completed by the system administrator for such property (such property referred to as the “Property”), regardless of brand or ownership group affiliation (such operator referred to as “You”) a personal, non-transferable and non-exclusive license to use the Hotel SalesPro® and/or Hotel Sales & CateringPro® software program(s) linked to this Agreement (“Software”) in object code format only and its associated documentation only for use by You in the operation of the Property. The term “Software” includes associated media, printed materials, the data field structure employed by Hotel SystemsPro, and on-line or electronic documentation, as well as any and all updates and supplements provided by Hotel SystemsPro. All copies of the Software remain the property of Hotel SystemsPro. You agree not to use the Software for any illegal purpose, or for any purpose which may infringe on the property rights of others. You represent and warrant that You have the proper power and authority to enter into this Agreement and that the person preparing the Setup Form has all the proper power and authority to act on your behalf. You understand that the Software has been designed solely for use in the English (U.S.) language and that Hotel SystemsPro makes no representations or warranties that the Software will be adapted for use in any other language or format, although Hotel SystemsPro reserves the right to do so in its sole discretion. You further understand that Hotel SystemsPro provides certain documents as part of the Software merely for Your convenience, and no representation or warranty is made with respect to the accuracy or completeness of these documents, or that they will be error free. You agree to review all such documents before using them and to take whatever action may be necessary to ensure that the use of such documents does not conflict with applicable law or the rights of any third party. Section 2. Data Hosting and Ownership. Hotel SystemsPro may provide or make arrangements with a third party to provide data hosting services in connection with Your use of the Software. No arrangements made by Hotel SystemsPro with respect to such data hosting services will affect the ownership of the Property’s data, and Hotel SystemsPro shall take commercially reasonable steps to ensure that neither Hotel SystemsPro nor any third party host shall access, review, market, sell, or otherwise exercise any control over the Property’s data. You represent and warrant that You are solely responsible for the testing, integrity and security of the Property’s data, and that You own or otherwise have the right to collect the Property’s data and deliver such data to Hotel SystemsPro or the third party host. You are required to test the Property’s data after the installation of any patches, fixes, updates, upgrades and/or new releases of or to the Software, and You are responsible for safeguarding all passwords used to access the Property’s data. During the term of this Agreement, You may export copies of the Property’s data as needed for the express purpose of communicating with accounts or contacts of the Property, whether by mail or electronic mail; however, You may not export or extract any copies of the Property’s data or portions thereof for any other purpose, directly or indirectly, without written consent from Hotel SystemsPro. Upon termination of this Agreement for any reason, all data will be returned promptly to You or handled as You otherwise direct, provided that Hotel SystemsPro reserves the right to charge You a fee and to provide such data in a format that differs from the proprietary structure used by Hotel SystemsPro in connection with Your use of the Software. If You elect to host the Property’s data, You must agree to the terms of and execute a written agreement for that purpose in the form provided by Hotel SystemsPro. Section 3. Intellectual Property Rights. The Software is the sole property and constitutes confidential and proprietary information of Hotel SystemsPro. You are being granted a license only under this Agreement. You agree to take reasonable steps to protect the confidentiality of the Software. You shall not disclose or transfer the Software, Your passwords, Your interfaces to the Software, or any other method of accessing the Software to any third party or to any other computer. You agree not to decompile, modify, reproduce, rent, lease, or otherwise dispose of or reverse engineer the Software, and You agree not to duplicate the Software. You agree to use the Software only in connection with the operation of the Property, and You shall not use, permit the use of, or attempt to use the Software in connection with the operation of any other hotel property or other business enterprise. You shall not gain access, or attempt to gain access, by any means (including, without limitation, by use of the Software), to any Hotel SystemsPro computer system or database, other than systems that Hotel SystemsPro may grant You access to in the future, and you shall not gain access or attempt to gain access to any Hotel SystemsPro computer system or database through any means other than the Software in any event. Section 4. Technical Support. Hotel SystemsPro will provide technical support in connection with Your use of the Software, provided that You pay the required fees annually in advance. Your use of technical support services is governed by the policies and procedures described in the user manual, on-line documentation, and/or other materials provided by Hotel SystemsPro relating to the Software. Any supplemental software code provided to You shall be considered part of the Software and its use shall be governed by this Agreement. You understand that Hotel SystemsPro may use any and all technical information provided by You for its own internal purposes, including product support and development. Hotel SystemsPro will not use or make available such technical information in any form that personally identifies You. Section 5. Term; Termination. This Agreement and the license hereunder shall be effective upon the date You access the Software and have an initial term of 1 year and shall thereafter renew automatically, unless otherwise terminated. Hotel SystemsPro may terminate this Agreement at any time upon notice to You if You fail to pay any and all required fees and charges, or if Hotel SystemsPro implements a new license agreement that replaces this Agreement. If Hotel SystemsPro, in its sole judgment, believes that the Software is being used for a purpose not approved by Hotel SystemsPro, it may immediately terminate this Agreement. Upon termination of this Agreement for any reason, Hotel SystemsPro shall be authorized to immediately prevent You from having any further access to the Software. Sections 3, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive termination of this Agreement. Section 6. Fees. The required fees consist of the Software License Fee, the Technical Support Fee, any data hosting fee, and any training fees that may apply, as specified in the application or other materials provided by Hotel SystemsPro, which are incorporated herein by reference. These fees must be paid in advance before the license under this Agreement shall be in effect and valid. Section 7. Exclusion of Warranties and Limitation of Damages. THE SOFTWARE IS LICENSED "AS IS." THERE ARE NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. HOTEL SYSTEMSPRO MAKES NO WARRANTY WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION OBTAINED THROUGH THE USE OF THE SOFTWARE NOR OF THE DATABASE INFORMATION PROVIDED IN CONNECTION WITH OR CREATED THROUGH THE USE OF THE SOFTWARE, NOR DOES HOTEL SYSTEMSPRO WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED. HOTEL SYSTEMSPRO AND ITS AGENTS SHALL IN NO EVENT BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, MULTIPLE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST SAVINGS, OR OTHER SUCH DAMAGES ARISING OUT OF THE USE OF (OR IMPROPER USE OF), OR INABILITY TO USE, THE SOFTWARE AND/OR ANY INFORMATION OBTAINED THROUGH THE USE OF THE SOFTWARE, EVEN IF HOTEL SYSTEMSPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PERSON OR ENTITY RELATED THERETO. Section 8. Indemnification by You. You will, at Your sole cost and expense, indemnify and hold Hotel SystemsPro and its officers, directors, employees, agents, successors and assigns harmless from and against any and all claims, losses, damages, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of or related to Your violation of the terms of this Agreement, or the violation of the terms of this Agreement by any person who has access to the Software through You. Section 9. Export Control Laws/U.S. Government Restricted Rights. You agree to comply with all United States and other applicable laws, rules and regulations relating to the export, re-export or transshipment of the Software. Use, duplication or disclosure of the Software by the United States Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR52.227-19, as applicable. Section 10. Arbitration. The parties shall settle any controversy arising out of this Agreement by arbitration in Atlanta, Georgia in accordance with the Commercial Arbitration Rules of the American Arbitration Association. A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within twenty (20) days after the filing and service of the demand for arbitration, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The non-prevailing party shall pay all costs of arbitration and the attorneys’ fees of the prevailing party, and the parties shall request the arbitrator to include such provisions in the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. Section 11. Miscellaneous. The terms of this Agreement may be amended or modified by Hotel SystemsPro on a prospective basis at any time without prior notice to You. You may not assign Your rights or delegate any of Your duties under this Agreement without Hotel SystemsPro’s prior written consent, and any attempted assignment or delegation without such consent shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby. This Agreement shall be governed by the substantive laws of the State of Georgia.
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