These Additional Terms and Conditions and the F.I.T. Allotment and Rate Agreement (U.S.A.), 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.
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 Domestic Operating Company 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”, “Hilton Honors”, “Tru by Hilton”, “Tapestry Collection by Hilton”, “Canopy by Hilton”, “Curio – A Collection by Hilton”, ”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,” “Honors,” “Doubletree,” “Embassy Suites,” “Conrad,” “Waldorf Astoria,” “Hilton Garden Inn,” “Tru”, Canopy”, “Curio”, “Tapestry”, “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. 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 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”). The OFAC List can be found by visiting http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx. 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 fullest extent permissible by law, Company shall fully indemnify, defend and hold harmless Hilton and the Hotel and each of their respective owners, managers, partners, subsidiaries, affiliates, officers, directors, employees and agents (collectively, the “Hilton Indemnified Parties”) from and against any losses, liabilities, claims, demands, damages, penalties, costs or expenses (including reasonable attorneys’ fees) (collectively, the “Losses”) awarded against or incurred or paid by Hilton Indemnified Parties in connection with or related to any claim or action brought by a third party (collectively, “Claims”) against the Hilton Indemnified Parties arising out of or related to or 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 Company or any of Company’s Affiliates, distributors, subcontractors, agents, servants, licensees, invitees or employees, and any other person claiming by, under or through Company to any extent (“Company’s parties”); or (ii) the provision of intermediary services hereunder by Company or any of Company’s parties; (iii) the infringement or misappropriation of any patent, copyright, trade secret or other intellectual property or proprietary right of third parties by Company or any of Company’s parties; (iv) the violation of any applicable laws and regulations, including without limitation, any privacy or data protection law, regulation or requirements by Company or any of Company’s parties; or (v) the failure of Company or any of Company’s parties to remit applicable Occupancy Taxes or pay the Hotel the applicable Occupancy Taxes pursuant to the terms hereof (except as and to the extent the Losses arise directly from the failure of (1) the Hotel to remit Occupancy Taxes on the Net Rate to the relevant government authority in due course after having timely received the applicable amounts from Company as provided for under the Specific Terms or (2) the Hotel to provide Company the accurate Occupancy Tax rates). Nothing in this Section 5 shall require Company to indemnify the Hilton Indemnified Parties from Losses that have been caused by the negligence or willful misconduct of the Hilton Indemnified Parties or the breach by the Hilton Indemnified Parties of any of the terms or conditions of this Agreement. For the avoidance of doubt, Company is not responsible for, and assumes no liability for, lodging accommodation related services that the Hotel provides or fails to provide to any guest booking through Company’s intermediary service.
To the fullest extent permissible by law, Hotel shall fully indemnify, defend and hold harmless Company, Company’s Affiliates, officers, employees, agents and contractors (the “Company Indemnified Parties”) from and against any Losses awarded against or incurred or paid by the Company Indemnified Parties in relation to any Claim made against Company Indemnified Parties arising out of, related to, or connected with this Agreement, but only to the extent caused by a violation or breach of any of the terms and conditions of this Agreement by the Hotel, provided, however, that nothing in this Section 16 shall require the Hotel to indemnify the Company Indemnified Parties from Losses that have been caused by the negligence or willful misconduct of the Company Indemnified Parties or the breach by the Company Indemnified Parties of any of the terms or conditions of this Agreement.
The Hilton Indemnified Parties or the Company Indemnified Parties, as the case may be (the “Indemnified Party”), shall provide prompt notice to the Company, Company’s parties or the Hotel, as the case may be (the “Indemnifying Party”), of any matters with respect to which the indemnification obligations set forth above may apply. Any failure by the Indemnified Party to provide prompt notice shall not excuse the Indemnifying Party of its indemnification obligations hereunder unless and solely to the extent that a court of competent jurisdiction determines that such failure materially prejudices the Indemnifying Party’s ability to defend or settle any such Claim. The Indemnified Party may, by written notice to the Indemnifying Party, require the Indemnifying Party, at its expense, to resist such Claim or take over the defense of any such action or proceeding and employ counsel for such purpose, such counsel to be subject to the prior approval of the Indemnified Party. If the Indemnifying Party assumes control of such action or proceeding as set forth above, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with such action or proceeding and shall have the right to participate in any such defense with its own counsel and at its own expense. The Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party. If the Indemnifying Party does not assume control of the response and defense of a Claim, then the Indemnified Party shall have the right to assume control of the defense of such Claim at the expense of the Indemnifying Party. Notwithstanding the foregoing , the Hotel may freely resolve and settle any Claim if the settlement of such Claim does not exceed US$1,000. Should the Hotel settle such a Claim within the parameters of the indemnity as described above, then upon presentation of reasonable supporting documentation of such Claim settlement and the Company’s liability under the indemnity, the Company agrees to timely reimburse the Hotel for such settlement amount and thereafter the Hotel will not seek additional compensation or damages from the Company related to such resolved Claim.
Neither Company nor the Hotel will be liable to the other party or its Affiliates for any incidental, indirect, special, consequential, punitive or exemplary damages or losses of any kind (including lost or anticipated revenues or profits relating to the same) arising from any claim relating to this Agreement or any of the services provided hereunder, whether such claim is based on warranty, contract, tort (including negligence or strict liability) or otherwise, even if the parties are advised of the possibility or likelihood of the same. The foregoing limitations on damages will not apply: (i) to the extent the liability arises from a party’s willful misconduct or (ii) to the extent that such damages are awarded to a third party in connection with a Claim.
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 Hilton’s 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 state 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 arising out of or in connection with this Agreement will be resolved using one arbitrator before JAMS or American Arbitration Association in the state and city in which Hotel is located, or the closest available location. The parties further agree that in any arbitration proceeding, they may conduct reasonable discovery pursuant to the arbitration rules, and any arbitration award will be enforceable in State or Federal court.
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.
Given that Company will obtain and/or have access to Personal Information (as defined in the Privacy Standards specified below), Company agrees to be bound by and comply with the Hilton Privacy and Data Protection Standards for Service Providers set forth at http://www.hiltondistribution.com/privacyanddataprotectionstandards.htm (the “Privacy Standards”), as such Privacy Standards may be amended from time to time. Company hereby acknowledges and agrees that the Privacy Standards are hereby incorporated herein and forms a part of this Agreement as if the entire text of the Privacy Standards were set forth herein. In the event of a conflict between the terms of this Agreement and the Privacy Standards, the Privacy Standards will control, unless and to the extent that a provision of this Agreement is more protective of Personal Information or if this Agreement expressly states that it shall control.
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 the United States; 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.
Company acknowledges that certain government agencies and other persons have asserted claims that tax may be owed in amounts greater than the product of the Net Rate and the tax rate applicable thereto and Company assumes all risk, responsibility and liability relating to such tax and the possibility of other claims regarding such tax. This risk, responsibility and liability are unconditional. Neither Hilton nor any Hotel will bear any liability with respect to any amount of tax that exceeds the product of the Net Rate and the tax rate applicable thereto. However, a Hotel that receives such a claim for payment of, or notice that a government auditor has made an inquiry suggesting that the taxing jurisdiction is considering an audit or examination of occupancy tax liability related to, Occupancy Tax on package rates under this Agreement will provide a copy of such claim or notice to Company as soon as reasonably practical (provided, however, that the Hotel will not be liable for damages due to the failure to timely provide a copy of such claim or notice to Company). In the event a government agency responsible for administering an Occupancy Tax finally determines (and so notifies Company or Hilton or a Hotel in writing), that either Company or any Hotel is required to collect and remit Occupancy Taxes and file Occupancy Tax returns on any amounts in excess of the Net Rate, and (i) the time for seeking judicial review of such determination has elapsed without judicial review having been sought or (ii) such determination has been subjected to judicial review from which no appeal is possible (either case, a “Final Judgment”), then Company will promptly begin collecting and remitting such Occupancy Taxes (to either the appropriate tax authority or the Hotel, as required) and filing appropriate tax return(s) with the appropriate tax authority as may be applicable and to the extent required. Company will have the right to control the process of defending against such above determination and of seeking judicial review of such determination and will be solely responsible for all costs and fees incurred in doing so. Hilton and the Hotel will reasonably cooperate with Company’s defense, including the execution of limited powers of attorney to the extent necessary to do so (provided, however, in such event, Hilton and the Hotel will have the right to participate in the defense and Company will be responsible for Hilton’s and the Hotel’s reasonable expenses in doing so). If payment of the amount of Occupancy Tax determined by the appropriate tax authority or posting of a bond is a prerequisite to seeking judicial review of such determination, Company will provide payment to Hilton or Hotel to cover those portions of such tax, payment or bond that relate to Occupancy Taxes claimed to be due on any amounts in excess of the Net Rates or Hotel Fees in transactions facilitated by the Company. Assuming Hotel or Hilton provide adequate notice and where commercially reasonable, Company’s payment to Hilton or Hotel under this paragraph will be made at least 5 business days in advance of the date the amount is due to be paid to the relevant government agency or court. Should Company, Hilton or Hotel prevail in an administrative or judicial proceeding such that a payment made under this Section 15 is refunded to Hilton or Hotel, Hilton or Hotel will refund the payment back to Company within 30 days of receipt. Company further agrees to cooperate with Hilton and the relevant Hotel in the event the Hotel is subject to an Occupancy Tax audit.
16. CERTAIN DEFINED TERMS.
If used in the Agreement, the following defined terms shall have the following meaning:
• “Affiliate” means a person or entity, directly or indirectly, controlled by, controlling, or under common control with another person or entity.
• “Occupancy Taxes” means any and all transaction taxes, fees and assessments, including without limitation any and all applicable value added taxes or goods and services taxes, imposed by a federal, national, provincial, state or local government upon the occupancy of a hotel, motel, rooming house or like entity, including, without limitation, sales taxes, lodging taxes, resort taxes, room taxes, occupancy taxes, tourism development or assessment fees or taxes, gross receipts taxes and transient hospitality taxes, whether the tax obligation falls upon the individual occupant of hotel facilities or upon the owner or operator of the hotel facilities, Company, or otherwise, and any similar tax imposed on the basis of rental, possession, or use of hotel facilities, on the Net Rate or the Retail Rate or the difference between the Net Rate and the Retail Rate..
Last Updated: October 26, 2017
NOTICE OF UPDATED GENERAL TERMS AND CONDITIONS
As stated above, Hilton may modify the General Terms from time to time. The following is provided to help Company track the most significant recent changes to the General Terms.
• Section 2: Updated list of Hilton Brand names
• Section 5: Updated Indemnification Clause, now mutual in scope
• Section 12: Updated Privacy clause with new link to updated Hilton Privacy Standards
• Section 15 (Taxes): added new clause
• Section 16: added new clause with defined terms