These Additional Terms and Conditions and the F.I.T. Allotment and Rate Agreement (Canada), each hereby made a part hereof (collectively, this “Agreement”) is entered into by and between the Hotel and the Company as such terms are defined in the F.I.T. Allotment and Rate Agreement. All capitalized terms as used herein that are not specifically defined shall have the meaning ascribed to them in the F.I.T. Allotment and Rate Agreement.
DISCLAIMER: IMPORTANT! THESE ADDITIONAL TERMS AND CONDITIONS APPLY SOLELY BETWEEN THE HOTEL AND THE COMPANY AS DESCRIBED ABOVE AND DO NOT GOVERN THE TERMS AND CONDITIONS BY WHICH THE HOTEL MAY PROVIDE LODGING ACCOMMODATIONS AND RELATED SERVICES TO ANY CONSUMER OR GUEST THAT HAPPENS TO BOOK A GUEST STAY AT THE HOTEL (DIRECTLY OR INDIRECTLY) THROUGH THE AFOREMENTIONED COMPANY. IF YOU ARE NOT AN EMPLOYEE OR AUTHORIZED REPRESENTATIVE OF THE HOTEL, HILTON WORLDWIDE OR THE COMPANY, PLEASE LEAVE THIS SITE IMMEDIATELY.
For the entire term of the F.I.T. Allotment and Rate Agreement, the parties shall each comply with all of their respective requirements set forth herein and as they may be amended by Hilton Worldwide, Inc. (“Hilton”) from time to time in Hilton’s sole discretion and posted on this website.
2. HILTON INTELLECTUAL PROPERTY; BROCHURE:
You hereby covenant and agree not to use Hilton names, or any variation thereof, or the names “Hilton”, “Hilton Hotels & Resorts”, “Conrad Hotels & Resorts”, “Waldorf Astoria Hotels & Resorts”, “Embassy Suites”, “Embassy Suites by Hilton”, “DoubleTree by Hilton”, “Hilton Garden Inn”, “Hampton Inn”, “Hampton Inn & Suites”, “Hampton by Hilton”, “Hampton Inn by Hilton”, “Hampton Inn & Suites by Hilton”, “Home2 Suites by Hilton”, “Homewood Suites by Hilton”, “HHonors”, or “Hilton Grand Vacations” or the stylized “H” or other logotypes, trademarks, service marks, trade names or other “Hilton Intellectual Property” (defined below) now or hereafter used by Hilton or its affiliates, subsidiaries, hotels or their owners, and shall not use any “metatags”, “scumware”, “spyware”, search word preference or any other service that results in you being referenced in regard to Internet searches for such marks, attracts Internet users to its web sites, call centers or other services, or otherwise use any such marks, directly or indirectly, in any way in connection with any of your business or operations, without the prior written approval of Hilton (except those items set forth in this Agreement that have been pre-approved by the Hotel to be used as creative by you, for which written approval is not required) and, in the event of such approval, only in the manner and at such times as shall be prescribed in such approval.
You shall add the following Hilton brand terms to your negative keyword list: “Hilton,” “HHonors,” “Doubletree,” “Embassy Suites,” “Conrad,” “Waldorf Astoria,” “Hilton Garden Inn,” “HGI,” ‘Homewood Suites,” “Home2 Suites,” and “Hampton.” Any keyword violations by you or any of your distributors shall be removed within 30 days of our notification to you.
You and your distributors may not utilize or distribute software downloads that potentially enable diversions of payments from other third-party intermediaries that provide similar services. You shall not, without written express prior consent, use any e-mail or search engine marketing to promote Hilton, us or your rights hereunder.
You shall not claim to be Hilton or the Hotel in any pay-for-placement and other search engines. You agree to comply with the requirements of the CAN-SPAM, EU Data Protection Act of 2003 and other similar legislation in your distribution of email that contains messaging regarding this Agreement, Hilton or the Hotel.
Subject to the foregoing, the Hotel hereby gives you the right, solely for the purposes of marketing and obtaining reservations for our Hotel under this Agreement, to use our Hotel name, subject to our right to refuse particular uses at any time and from time to time, including without limitation, approval of any and all advertising referencing such marks. We will provide you our Hotel name or logo and applicable photos of the Hotel for inclusion in your tour brochure or voucher. You may not make any alterations to the Hilton logo, or our Hotel’s name, logo or our Hotel photos or use them in any manner or in any materials other than your tour brochure and vouchers without our prior written approval. As part of your Agreement, upon request you must send to us two (2) copies of your printed brochure/voucher for our files.
Except as set forth in this Agreement, you shall have no rights of any kind with regards to Hilton.com, Hilton’s services, Hilton images, messages, codes, trade names and trademarks, and all other Hilton intellectual property (the “Hilton Intellectual Property“). You agree to observe Hilton’s exclusive rights as to the Hilton Intellectual Property within all pay-for-placement and other search engines.
If you or any of your distributors violate any of the terms of this section, we may terminate this Agreement in accordance with the termination provisions herein below and reserve the right to charge back, and/or disallow any and all compensation.
3. UNAVAILABILITY OF ROOMS:
On occasions due to unanticipated circumstances, the Hotel may not have rooms available for all guests with a confirmed reservation that wish to check-in on a particular night. While the Hotel will use reasonable efforts to avoid such situation impacting Company, in the event any guest with a confirmed reservation cannot be accommodated by the Hotel, the Hotel will provide the following:
Accommodation paid by the Hotel at a comparable hotel as close as possible for the first night the guest is displaced from the Hotel. * One complimentary round trip ground transportation between the Hotel and the alternate hotel.
The Hotel will make necessary arrangements for the displaced guest’s telephone messages and mail to ensure that they are properly forwarded.
Company will receive credit for any guests displaced toward its Annual Room Night Production numbers for purposes of this Agreement.
If a room becomes available at the Hotel for the displaced guest and the guest elects not to return to the Hotel, the Hotel will have no further obligations under this clause.
4. COMPLIANCE WITH LAWS:
Each party will be responsible for ensuring compliance by such party with all applicable foreign and domestic laws, codes, regulations, ordinances and rules with respect to the party’s obligations under this Agreement and the services to be provided by each party hereunder, including but not limited to any laws and regulations governing package and tour travel operators/organizers. Given that Hilton Worldwide, Inc. is headquartered in the United States of America, hotels operating under the Hilton Worldwide portfolio of brands are legally restricted from conducting business with any persons or entities that are designated on the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) List of Specially Designated Nationals and Other Blocked Persons (including terrorists and narcotics traffickers) (the “OFAC List”), since such hotels and Hilton Worldwide could be determined to have derived income, directly or indirectly, from any such prohibited business activities. The OFAC List can be found by visiting http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx. Accordingly, each party represents and warrants to the other party that as of the date of signing this Agreement, the party is currently not on the OFAC. If a party is added to the OFAC List or any similar restricted party listings, including those maintained by other governments pursuant to applicable United Nations, regional or national trade or financial sanctions, then that party must immediately notify the other party. A party may cancel this Agreement without any liability to either party if that party reasonably believes it is necessary to do so in order to comply with that party’s respective obligations under applicable laws, rules or regulations, including (but not limited to) if the other party is added to any restricted party listings as described in this section.
To the extent permitted by law, you agree to protect, indemnify, defend and hold harmless the Hotel, Hilton, and each of their owners, partners, subsidiaries, affiliates, franchisees, and each of such persons’ or entities’ officers, directors, agents, contractors, subcontractors, and employees (collectively referred to as the “Indemnitees“), against and from any and all third party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorney’s fees) (“Claims”), arising out of or in any way connected with this Agreement, but only to the extent caused by: (i) a violation or breach of any of the terms or conditions of this Agreement by you or your distributors or subcontractors; or (ii) the services provided by you or any of your distributors or subcontractors hereunder, or any related act or failure to act by you or your distributors or subcontractors.
Nothing in this section shall require you to indemnify the Indemnitees from that portion of any Claim that has been caused by the negligence or willful misconduct of the Indemnitees, or the breach by the Indemnitees of any of the terms or conditions of this Agreement, or the breach of any law or regulation by the Indemnitees, or from the guest/host relationship between Hilton or the Hotel and any guest. For the avoidance of doubt, you are not responsible for and assume no liability for lodging accommodation related services that the Hotel provides or fails to provide to any guest.
You agree to obtain and keep in force General Liability Insurance covering your contractual obligations hereunder with limits of not less than $1,000,000 per occurrence. Hotel agrees to maintain general liability insurance with limits not less than $2,000,000 per occurrence, covering liability for personal injury, property damage, liquor liability, and automobile liability, as well as Workers Compensation insurance per applicable laws and Employers Liability insurance. Upon written request, each party shall make evidence of coverage available to the other party. For hotels that participate in Hilton’s general liability insurance program, proof of such insurance coverage is satisfied by a Memorandum of Insurance available at: http://www.marsh.com/moi?client=0291. The Hotel can confirm whether they participate.
7. GOVERNING LAW:
The Agreement will be governed by and interpreted pursuant to the laws of the Province in which Hotel is located, excluding any laws regarding the choice or conflict of laws.
8. DISPUTE RESOLUTION:
The parties will use their commercially reasonable efforts to informally and timely resolve any dispute concerning any matter related to this Agreement by presenting the dispute to senior representatives of the parties for their discussion and possible resolution in the order set forth herein; provided, however, a dispute relating to patents, trademarks, trade dress, copyrights, trade secrets, and/or infringement of intellectual property rights shall not be subject to this provision. If within a period of thirty (30) calendar days after submission of a disputed matter in accordance with this clause, the respective senior representatives are unable to agree upon a resolution of such dispute, then either party may give notice to the other party of its intention to pursue arbitration. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
Arbitration of disputes shall be determined by private and confidential arbitration before an arbitration panel composed of one arbitrator appointed jointly by the parties within thirty (30) days from the notice of a party’s intent to pursue arbitration. Should the parties fail to agree on the appointment of an arbitrator period the expiration of such period, either party may submit a request to the court having jurisdiction to appoint such an arbitrator. Within 10 business days of the appointment of the arbitrator, the parties agree to enter into an arbitration agreement (the “Arbitration Agreement”) dealing with such items as the length of the hearing, document discovery, presentation of witnesses, evidence and any other applicable rules which the parties may stipulate to govern the arbitration proceedings to the extent that such items are not already established herein, and failing such agreement, the items shall be submitted to the arbitrator. The arbitration shall take place in the city in which the Hotel is located (or closest available location) and in the English language, unless the Hotel is in the Province of Quebec in which case the parties may mutually agree to conduct the arbitration in French. The arbitration proceedings shall be governed by the Arbitration Agreement and, for any item not provided for in the Arbitration Agreement, the rules of the Arbitration Act/Model Law Schedule of the International Commercial Arbitration Act (Ontario), unless the Hotel is in the Province of Quebec, in which case the rules set forth under articles 940 to 947.4 of the Code of Civil Procedure (Québec) shall apply. In the event of a contradiction between the Arbitration Agreement, those applicable rules and anything set out in this paragraph, this paragraph shall have precedence, followed by the Arbitration Agreement. The arbitration tribunal shall determine the rights and obligations of the parties in accordance with the substantive laws and equitable remedies applicable in the Province where the Hotel is located. The decision of the arbitrator must be rendered in writing and served on the parties within 15 days of the conclusion of the arbitration hearing. The arbitrator’s decision (including award regarding the payment of fees and disbursements related to the arbitration plus an award of pre and post judgment interest for the prevailing party) shall be final, binding and without appeal. The award rendered may be entered in any court having jurisdiction, or, application may be made to such court for judicial recognition or homologation of the award or an order of enforcement thereof, as the case may be. Each party shall initially be responsible for the fees of its own counsel, appraisers and consultants and jointly share the fees of the arbitrator and the expenses connected with the arbitration, subject to the arbitrator’s award.
9. ATTORNEYS’ FEES:
The parties agree that in the event that any dispute arises in any way relating to this Agreement, the prevailing party in any arbitration or court proceeding will be entitled to recover an award of its reasonable attorney’s fees, costs and pre and post judgment interest.
Neither party may assign this Agreement or any part hereof to any third party without the prior written consent of the other party except that Hotel may assign this Agreement to a new owner and/or manager of the Hotel.
11. INDEPENDENT CONTRACTOR:
: This Agreement does not create any legal relationship of principal buyer or seller, partnership or joint venture. In your capacity as an independent contractor, you are assisting us by helping us to sell our rooms and only in the manner described in this Agreement. Since you are an independent contractor, the parties do not anticipate any tax implications or tax consequences that could possibly otherwise arise out a different characterization of your status. You shall not without Hilton’s and/or our prior written consent: (i) bind (or hold yourself out as being able to bind) Hilton or the Hotel to any contract or create any liability against Hilton or the Hotel nor describe yourself as anything other than an independent contractor of Hilton or the Hotel; and/or (ii) make or give any representation, warranty, statement or claim about Hilton or the Hotel or any of the facilities in any Hilton hotel except as and to the extent specifically authorized in writing by Hilton.
13. FORCE MAJEURE:
Neither party shall be responsible for failure to perform this Agreement if circumstances beyond their control, including, but not limited to: acts of God; terrorist attacks in the city in which Hotel is located; or declared war in Canada; make it illegal or impossible or commercially impracticable to perform under this Agreement. The affected party may terminate this Agreement without liability upon providing written notice to the other party within ten (10) days of the occurrence.
A failure or delay of any party to this Agreement to enforce at any time any of the provisions of this Agreement, or to exercise any option which is hereby provided, or to require at any time performance of the provisions hereof, shall in no way be construed a waiver of, nor preclude the exercise of, any of the provisions of this Agreement.
15. CHOICE OF LANGUAGE (APPLICABLE WHEN HOTEL IS IN QUEBEC ONLY):
The parties hereby confirm their express wish that this Agreement and all related documents be prepared in the English language only. Les parties reconnaissent avoir exigé que la présente convention et tous les documents qui y sont relatifs soient rédigés en anglais seulement.
Last revised August 13, 2013