HWI – AUTODESK QUICK CONFIRMATION ADDITIONAL T&C (Final 9/16/14)
These Additional Terms and Conditions and the HWI – AUTODESK Quick Confirmation Agreement, each hereby made a part hereof (collectively, the “Agreement”) is entered into by and between the Hotel and the Group as such terms are defined in the Quick Confirmation Agreement. All capitalized terms as used herein that are not specifically defined shall have the meaning ascribed to them in the Quick Confirmation Only Agreement. For the entire term of your use and occupancy of the Hotel premises during your Event, you shall comply with all of the requirements set forth herein.
1. BANQUET FUNCTIONS:
For your organized food and beverage functions, the following will apply:
Distractions: It is understood the nature of the program requires a quiet, professional setting for the achievement of its goals. If Group is disturbed by excessive noise, Group will notify Hotel immediately and Hotel will take prompt, reasonable action to cause such disturbance to cease.
Overtime: You agree to begin your Event promptly at the scheduled start time and to have your guests, invitees and other persons vacate the designated function space at the agreed upon end time. You must reimburse us for any overtime wage payments or other expenses incurred by us because of your failure to comply with these requirements.
Price Increases: There may be increases in prices due to unforeseen changes in market conditions at the time of your Event. We will communicate these increases to you in advance. We will require written confirmation that you agree to pay these increased prices, or at our option we may make reasonable substitutions in menus and you agree to accept such substitutions.
Set Up Charges: Should extensive meeting room set-ups or elaborate staging be required, there will be a set-up charge to cover Hotel costs and additional labor. If equipment is necessary that exceeds Hotel’s inventory, then you agree to pay for the cost of renting this additional equipment.
Supplemental Surcharges: Supplemental surcharges are charges added to your Master Account bill to pay for costs incurred by the Hotel in connection with additional equipment, administration, and staffing necessary for the Event. These surcharges will be solely retained by the Hotel and are not distributed to hourly or tipped employees. Examples include, but are not limited to, early sets, late end times, outdoor venues, resets, refreshes, cleaning and other service that require staffing above normal levels and/or services outside of the normal scope contracted and paid products and services.
No Hidden Charges: Group or its attendees shall not incur additional charges for work performed or for services provided by the Hotel but not described in this Agreement, unless the Hotel first provides a quote for the work or service and the Group provides written permission from an authorized representative of the Group to have the work completed or the service provided.
Additional Spend: You agree to pay the Hotel for any food, beverages and other services not expressly set out in the Agreement and any appendix but provided on your request during the Event. On or before the arrival date, you will confirm to us in writing the names of those persons who you have authorized to sanction additional spend at the Event over and above the contracted amounts. All our records for additional spend (meeting room rental, audio/visual equipment, flipcharts, F&B functions and other incidentals) will be presented to one of your authorized signatories to be checked and signed on a daily basis. Failure of your authorized signatory to review any or all charges on a daily basis will not be grounds for disputing the charges.
Additional Charges: In addition to the customary charges associated with Group’s Event (for example, sleeping room rates, meeting room rental, banquet charges, audio-visual, etc.), Hotel may offer other services for which there may be fees either to Group or the individual attendee (as applicable). Examples of potential additional charges could include Package Handling, Business Center, Sign Making, Banner Hanging, Telephone Rental, Private Locks, Electrical Power, Labor for Audio-Visual & Electrical Requirements, Athletic Club, Parking, Luggage Storage. Prior to Group’s Event, Group may request that Hotel disclose to Group those potential additional charges that are in effect at the time of Group’s Event.
Outside Food and Beverage: Due to applicable law, you may not bring alcoholic beverages into the Hotel for your Event. You must obtain our prior approval before you bring any food or non-alcoholic beverages from outside sources into our Hotel. Service fees will apply to any outside food or beverage served in our function space, regardless whether Hotel labor is required.
Displays and Decorations; Your Property: You may, at your option, purchase insurance to cover your personal property, including decorations, special objects and other property. To the fullest extent permitted by law, we are not responsible for any loss or damage to property belonging to you or your attendees and do not maintain insurance covering it. All displays and/or decorations will be subject to our prior written approval and we reserve the right to contract and charge you for Hotel staff to provide the labor for any installations or removals of such. Hotel can advise you of such potential charges upon request.
Outside Contractors: The Group reserves the right to engage outside third party contractors to provide equipment or services (other than F&B related) , including but not limited to, unarmed security, audiovisual, production equipment, mechanical equipment, transportation, décor, and florist for Group during the Program Dates. The Group will provide written notice to the Hotel of its intention to engage such contractors prior to the commencement of the Program. For clarity, should you elect to utilize outside contractors or subcontractors on Hotel premises during Group’s Program, including but not limited to, a destination management company, audio/visual services, decorators, or others, Group must notify Hotel of Group’s intention to use such providers at least 10 days in advance of Group’s Program. Hotel may require that Group’s outside contractors sign a hold harmless, indemnification and insurance agreement in the form currently in use at the Hotel for similar outside contractors, and provide proof of insurance in amounts acceptable to Hotel before the outside contractor will be allowed to provide services on our Hotel premises. In some instances, despite your use of an outside contractor, Hotel may be required, pursuant to obligations imposed on Hotel by labor unions or collective bargaining agreements, to utilize Hotel labor to provide certain services, and you agree to pay the fees and/or charges associated with these services. Upon request by Group, Hotel will disclose prior to the Program those services that are required to be performed by Hotel labor (if any) as well as the potential fees and charges associated with such Hotel labor usage.
Conduct of Event: To the fullest extent permitted by law, you assume full responsibility for any damage done to our premises during your Event, but only to the extent such damage is caused by you, your employees, guests, agents, and contractors and any damage done resulting from the installation, placement, and removal of your displays, equipment, exhibits, or other items. For purposes of clarity, Group shall not be responsible for damage to guest sleeping rooms or public spaces of the Hotel not occupied by Group; in those instances, Hotel shall seek payment for damage from the responsible guest(s). You also agree that your Event will not create any unreasonable disturbance to other guests or meetings, such as excessive noise, smoke or fog machines, dry ice, confetti cannons, candles, incense, or any activity that generates offensive smells. Hotel reserves the right to end your Event immediately if you do not comply with Hotel’s request to reduce or eliminate any such disturbance, in which case you will remain responsible for payment of all charges related to your Event and no refunds will be issued by Hotel.
Fire Safety: For the safety of persons and property, no fireworks or incendiary devices may be used indoors at the Hotel. All room sets must be in compliance with the local Fire Department regulations, including those pertaining to occupancy load, mandatory aisles, ceiling clearance and fire exits. Any Event that has vehicle displays, fog machines, fueled cooking demonstrations, lasers, exhibits (including tabletop) or extensive productions with staging and props, must have a certified permit from the local Fire Marshall. All associated fees for permits, floor plan approval and stand-by fire watch are your responsibility and final approved copies of all such permits must be provided to us at least three (3) days prior to your Event. Should you require any rigging services for this Event, all such services must be arranged through the in-house audio-visual provider or the Hotel and you will be responsible for all costs associated therewith.
Security: If required, in Hotel’s reasonable judgment, in order to maintain adequate security measures in light of the size and/or nature of your Event, you will provide, at your expense, security personnel supplied by a licensed guard or security agency, which agency will be subject to Hotel’s prior approval. Such security personnel may not carry weapons. Your security agency will be required to provide proof of insurance and sign a hold harmless agreement before they will be allowed to provide services on Hotel premises.
2. GUEST RESERVATION INFORMATION:
If you request that Hotel provide you and/or your representative(s) with access to guest reservation information pertaining to guests who have reserved rooms at the Hotel as part of the Room Block (each, an “Attendee”) established pursuant to this Agreement, then you certify that you have already obtained, or will obtain, consent from each of your Attendees for the Hotel or Hilton Worldwide, Inc. to provide to you and/or your representative(s) such Attendee’s reservation information, and you further agree to reimburse Hotel and Hilton Worldwide, Inc. for any costs, damages, fees or expenses of any kind arising from any claim(s) by an Attendee relating to the Hotel’s or Hilton Worldwide, Inc.’s disclosure of any Attendee’s reservation information.
3. EVENT PLANNER BONUS ACKNOWLEDGEMENT FORM:
If we agree to pay an Event Planner Bonus in connection with your Event, then before the Event Planner Bonus can be issued, an acknowledgment form signed by an authorized representative of the Event Planner’s employer must be submitted to us, with such form merely confirming that the employer is aware of the courtesy being provided to the Event Planner, and that the issuance of the courtesy does not violate the employer’s policies as of the date of issuance of the Event Planner Bonus. We can provide an acknowledgement form acceptable to us.
4. DISCLAIMER OF LIABILITY:
To the fullest extent permitted by law, Group agrees that in no event will Hotel, Hotel’s Owner or Hilton Worldwide, Inc. be liable for (1) any services or products provided, or to be provided, to Group by any third party supplier or contractor (including, but not limited to, companies that provide meeting registration or management services, florists, decorators, musicians, etc.), or (2) any liability arising out of any agreement between Group and any such third party supplier or contractor that Group hires or retains to provide services to Group’s Event. For the avoidance of doubt, this disclaimer applies even if such third party supplier or contractor (1) was recommended by Hotel to Group, (2) was as a preferred supplier / vendor of the Hotel, and/or (3) pays Hotel commissions or provides Hotel with other incentives based on their services paid for by Group.
5. AUXILIARY AIDS:
The Hotel represents that it contains accessibility features for individuals with disabilities and, where needed, the Hotel will provide equivalent facilitation, auxiliary aids and services, and reasonable modifications to policies and procedures to ensure that our guests have equivalent access to the Hotel’s goods, services, and accommodations. You agree that one week in advance of your Event, you will furnish to us a list of any auxiliary aids needed by your attendees in meeting or function space. Except as required by applicable laws, you agree that you will be responsible for the procurement and payment of all charges for any and all auxiliary aids. We will, upon your request, furnish you with the names of businesses you can contact to obtain these aids. You also agree to be responsible for compliance with the Americans with Disabilities Act in the set up and conduct of meetings for your Event.
6. COMPLIANCE WITH LAWS:
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 prior to the Event date 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.
7. PROMOTIONAL CONSIDERATIONS:
We have the right to review and approve any advertisements or promotional materials in connection with your Event that specifically reference the name of the Hotel or a name or logo owned by a subsidiary of Hilton Worldwide, Inc., including (but not limited to): Hilton, Hilton Hotels & Resorts, Conrad Hotels & Resorts, Waldorf Astoria Hotels & Resorts, Embassy Suites, DoubleTree by Hilton, Hilton Garden Inn, Hampton Inn, Hampton Inn & Suites, Home2 Suites by Hilton, Homewood Suites by Hilton, and Hilton Grand Vacations. You agree that we may share your Event and Planner information with our third party providers who offer support services to groups holding meetings/functions at our Hotel, including audio/visual services, decorators, florists, and others.
Performance of this Agreement is subject to acts of God, declared war, terrorist attacks within 75 mile radius of Hotel, interruption or delay in transportation either in the conference city or in the countries/states of origin of the attendees that prevents at least 40% of the attendees from arriving for the first peak night of the Program; civil disorder within 75 mile radius of Hotel or any other unanticipated occurrence beyond either party’s control (“Force Majeure Event”) making it illegal, impossible, or commercially impracticable for a party to perform under the Agreement. In the event of a Force Majeure Event, a party may terminate this Agreement without any liability whatsoever upon written notice to the other party within ten (10) days of the occurrence and if the Program is properly cancelled by Group due to a valid Force Majeure Event as described above, then upon Group’s request, the Hotel will return to the Group any deposits prepaid by Group to Hotel without penalty, less actual out of pocket expenses Hotel has incurred in preparation for the Program. The cancellation provisions in this Section are expressly agreed by the Parties to act as a waiver of the provisions of any state or local law, statute or regulation, to the extent that such provisions are contrary to the purpose or intent of this Section.
Hotel will provide the Group with a Nightly Group Room Block Report a daily basis over the Program Dates. This report will detail the Group Room Block sleeping room nights paid for by the Group, and the total number of rooms available in the Hotel’s inventory and the number of rooms that are “out of inventory” (i.e.: rooms that are out of order, under renovation, comps, or held out of inventory for Hotel’s preferred guest program) at the Hotel. These rooms will not be included in the Hotel’s inventory of available rooms and shall not be included in determining Hotel’s occupancy rate for purposes of calculating any attrition fees. The report will also outline the amount of revenue generated by Resold Group Rooms generated by such resale and proof of its efforts to mitigate such charges.
If the Hotel is able to provide sustainability metrics, Hotel will provide a Sustainability Report that should include all metered information for energy (electricity & fuels), water and waste/recycling/compost. Data must be received within 60 days after the program dates.
11. UNAVAILABILITY OF GUESTROOMS:
The Hotel will make commercially reasonable efforts not to relocate Group attendees. In the event any attendee with a guaranteed reservation cannot be accommodated by the Hotel, the Hotel will provide the concessions or amenities set forth below:
• The Hotel will use reasonable efforts to notify Group, to determine which attendees are to be relocated, and it will be the Hotel’s responsibility to immediately provide the Group with the names of all attendees so relocated.
• In addition, the Hotel shall be responsible for providing each relocated individual with the appropriate name, address, and phone number of the substitute facility.
• For any attendees relocated, the room nights will be credited to the Group Room Block pursuant to the Group Room Block Attrition clause of this Agreement and included in the count for complimentary room credits pursuant to the Complimentary Room clause 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.
• Group will receive credit for any room paid for or occupied at Hotel or other hotel, if walked, by a conference attendee with a confirmed reservation regardless of the dollar amount paid by that attendee or the method of booking utilized. Rooms billed as “no shows” (as well as other cancellations) will count as “sold rooms” when comparing the Group’s shortfall against the Hotel’s occupancy in order to calculate attrition damages. Attrition damages will be waived on any individual evening for which both the Hotel is sold out on a particular evening, and Group’s delegates were unable to make reservations within the room block dates. Any non-refundable individual cancellation, no-show, or early departure fees that are collected will be applied to any Group performance charges due the Hotel.
12. AUDIT OF ATTENDEES:
We are pleased to offer G.R.I.P., Hilton’s proprietary Group Reservation Identification Program, which automates the process of cross referencing registration lists to identify rooms booked outside of the reserved Room Block. Your final report of consumed rooms will reflect all rooms associated with your Room Block. If you request a comparison through G.R.I.P., you will need to electronically provide the first and last names of attendees registered for your Event to the Hotel. Group agrees that Group takes full responsibility for (a) determining whether it is necessary to disclose to Group’s attendees that information is being provided to Hotel by Group or vice versa which may be considered private or confidential, and for making such disclosure, if it is required, and (b) obtaining any necessary permissions from attendees allowing for such exchange of information. After comparing your list to the Hotel’s guest registry, Hotel will advise you of the number of room nights occupied by your attendees reserved outside the official Room Block. If you request Hotel to provide you with the names of the guests who reserved rooms outside of the official Room Block, you agree to sign an addendum relating to the release of the audit information for Group’s Event and to fully defend, indemnify and hold Hotel and Hilton Worldwide, Inc. harmless from and against any and all claims, settlements, judgments, fees or costs, including attorney’s fees and expert witness fees and costs, incurred as a result of any third party claim by any person or entity arising out of the release of information about a guest or guests to Group, as part of this comparison process. Your assigned Event Manager will discuss how we can assist you in managing your attendees’ booking behavior so that attendees will reserve rooms within the Room Block.
As of the date of the signing of this Agreement, the Hotel has no plans for renovation or remodeling of any sleeping rooms, function rooms, or facilities which the Group will be using, other than ordinary maintenance. If after this Agreement is signed, Hotel confirms plans to remodel or renovate its facilities, The Hotel agrees to promptly notify Group in writing of the following:
a. Planned scope of project;
b. Schedule for commencement and completion;
c. Anticipated impact project will have on areas to be utilized by Group; and
d. Hotel’s plan for minimizing impact of project on Group.
Hotel’s plan to renovate or remodel will not constitute grounds for termination of this Agreement unless mutually agreed upon by both parties. The parties agree to negotiate in good faith to resolve any concerns raised as a result of renovations or remodeling and to enter into such amendments of this Agreement as may be necessary to reasonably accommodate both parties’ interests.
14. LABOR DISPUTES:
Notwithstanding anything in the Agreement to the contrary, if within two (2) weeks prior to the commencement of, or at any time during, the Event, a strike vote is taken by Hotel employees or a labor organization that would authorize a work stoppage that would reasonably cause a material disruption in services to be provided to Group, or if the Hotel is involved in a labor dispute, then the Hotel shall promptly notify Group, and, upon request, provide Group with non-confidential information regarding the Hotel’s plans for conducting business during the possible work stoppage. For purposes of this section, “labor dispute” shall mean an authorized work stoppage by Hotel employees or other strike activity by a labor organization directed towards the Hotel as the primary employer which causes a material disruption in services to be provided to Group but shall NOT include union efforts to discourage Group or Group’s attendees from patronizing the Hotel. The parties agree to negotiate in good faith to resolve any concerns raised as a result of such actual or possible work stoppage and to enter into such amendments of this Agreement as may be necessary to reasonably accommodate both parties’ interests. If the parties mutually agree after good faith negotiations that, despite the information provided by the Hotel, such actual or possible work stoppage would materially disrupt or interfere with the use of the Group’s contracted meeting/function space or result in a material deterioration in the quality of service to be provided by Hotel to Group under this Agreement, then Group may terminate the Event without liability to either party by giving written notice of termination to the Hotel. In such case, Hotel shall provide a refund of any and all prepayments or deposits provided to Hotel under this Agreement within 30 days following written request from Group.
15. CONFLICT OF INTEREST/GROUP COMPETITORS:
The Group has reasonably determined that SolidWorks, Bentley, ESRI, Unigraphics, PTC, Dassault and Intergraph are direct competitors. Due to the sensitive nature of the Program, the Hotel agrees it will consult with the Group should any such competitor request space at the Hotel over the Program Dates, but only if the Group represents more than 50% of the Hotel’s available room inventory. If the Group determines that accepting such competitor’s business would be a direct conflict of interest with the Program, the Hotel agrees not to knowingly contract with such competitor over the Program Dates. If the Hotel does inadvertently schedule a meeting involving a listed competitor over Group’s event dates, the parties agree to meet to discuss:
a. The nature of the competing event (size, location in hotel, purpose of meeting if not confidential);
b. Schedule for the other event and potential for overlap;
c. Anticipated impact the competing event will have on areas to be utilized by Group or likelihood that the competitors will be exposed to Group’s Program; and
d. Hotel’s plan for minimizing any conflicts.
Hotel’s inadvertent scheduling of a competing group will not constitute grounds for termination of this Agreement unless mutually agreed upon by both parties. The parties agree to negotiate in good faith to resolve any concerns raised as a result of the competing event and to enter into such amendments of this Agreement as may be necessary to reasonably accommodate both parties’ interests.
16. PRIVACY OF PERSONAL INFORMATION:
Group affirms that it (and its agent of record, if applicable) is authorized to provide, request, and receive information pertaining to Guests as is necessary pursuant to the Guests’ Hotel stay, program attendance or under this Agreement. You further agree to reimburse Hotel and Hilton Worldwide, Inc. for any costs, damages, fees or expenses of any kind arising from any claim(s) by a Guest relating to the Hotel’s or Hilton Worldwide, Inc.’s disclosure by Group (or its representatives) to Hotel of any Guest’s reservation information.
17. TERMINATION FOR CAUSE:
The Hotel does not have the right to terminate this Agreement except for a Force Majeure Event or a material breach by Group or as otherwise set forth in the Agreement. The Group may terminate this Agreement for any material breach by Hotel or if any of the following occurs:
Group shall have the right to terminate this Agreement without liability if, after the time of contracting but before the Program, the Hotel is no longer branded as one of the Hilton Worldwide portfolio of brands (including the following brands, Hilton, Hilton Inns & Resorts, Conrad Hotels & Resorts, Curio, DoubleTree by Hilton, Embassy Suites Hotels, Hampton Inn, Hampton Inn & Suites, Hilton Garden Inn, Home2 Suites by Hilton, Homewood Suites by Hilton, or Waldorf Astoria Hotels & Resorts as well as other brands that may be added by Hilton from time to time). Group could exercise this right by written notice to Hotel provided that such notice is given within thirty (30) days of Group’s receipt of notice of such change in brand.
In the event the Hotel does not adhere to the terms under the Conflict of Interest/Group Competitors provision as outlined above.
Upon any such termination, the Hotel shall return any prepaid deposits to the Group within thirty (30) days of termination.
18. CANCELLATION BY HOTEL:
In the event that the Hotel cancels this Agreement for reasons other than a breach by Group or as otherwise expressly provided for elsewhere in this Agreement, then Group shall be entitled to pursue all remedies for breach of contract or other applicable claim as allowed by law.
To the fullest extent permitted by law, Group agrees to protect, indemnify, defend and hold harmless the Hotel, Hilton Worldwide, Inc. and the Hotel’s Owner, and their respective owners, managers, partners, subsidiaries, affiliates, officers, directors, employees and agents (collectively, the “Hotel Indemnified Parties”), from and against any and all claims, losses or damages to persons or property, governmental charges or fines, penalties, and costs (including reasonable attorney’s fees) (collectively, “Claim(s)”), in any way arising out of or relating to the Event that is the subject of this Agreement but only to the extent any such Claim(s) arise out of the negligence, gross negligence or intentional misconduct of Group’s employees, agents, contractors, exhibitors, or attendees. Nothing in this indemnification shall require Group to indemnify the Hotel Indemnified Parties for that portion of any Claim arising out of the negligence, gross negligence or intentional misconduct of the Hotel Indemnified Parties. As a condition to such defense and indemnification, Group will provide Hotel with prompt written notice of the Claim and permit Hotel to control the defense, settlement, adjustment or compromise of any such Claim. Group may employ counsel at its own expense to assist it with respect to any such Claim. Group shall have no authority to settle any Claim on behalf of Hotel
To the fullest extent permitted by law, Hotel agrees to protect, indemnify, defend and hold harmless Group, Group’s owners, managers, partners, subsidiaries, affiliates, officers, directors, employees and agents (collectively, the “Group Indemnified Parties”), from and against any and all Claims (as such term is defined above) arising out of or relating to the Event that is the subject of this Agreement but only to the extent any such Claim(s) arise out of the negligence, gross negligence or intentional misconduct of Hotel’s employees, agents, or contractors. Nothing in this indemnification shall require Hotel to indemnify any of the Group Indemnified Parties for that portion of any Claim arising out of the negligence, gross negligence or intentional misconduct of the Group Indemnified Parties. As a condition to such defense and indemnification, Hotel will provide Group with prompt written notice of the Claim and permit Group to control the defense, settlement, adjustment or compromise of any such Claim. Hotel may employ counsel at its own expense to assist it with respect to any such Claim. Hotel shall have no authority to settle any Claim on behalf of Group.
This section shall not waive any statutory limitations of liability available to either party, including innkeeper’s limitation of liability laws, nor shall it waive any defenses a party may have with respect to any Claim. This section shall survive any termination or expiration of this Agreement.
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 Worldwide’s general liability insurance program, proof of Hotel’s 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.
Group will provide Certificates of Insurance when required by Hotel. The following types of insurance and limits can be evidenced on a certificate.
|Commercial General Liability| |General aggregate| |Each occurrence| |Automobile Liability| |Owned, hired, non-owned autos, combined single limit |Limit| |$2,000,000| |$1,000,000| |$1,000,000| |Workers’ Compensation and Employer’s Liability| |Workers’ Compensation| |Employers’ Liability| |Property of Group| |Limit Statutory| |$1,000,000|
Direct physical loss or damage of real or personal property of Group
21. GOVERNING LAW; DISPUTE RESOLUTION:
This Agreement shall be construed, governed and interpreted in accordance with the laws of the United States of America and the State of New York, without regard to choice of law principles. Hotel and Group 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 Hotel and Group 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 pursue litigation. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. Litigation of disputes arising out of or in connection with this Agreement will be resolved in State or Federal court in the state and city in which Hotel is located (or the closest available location). The parties expressly waive the right to a jury trial. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
22. ATTORNEY’S FEES:
The parties agree that the prevailing party in any arbitration or court proceeding arising out of or related to this Agreement will be entitled to recover an award of its reasonable attorney’s fees and expert witness fees, costs and pre and post judgment interest at the highest available legal rate. FOR EVENTS IN HAWAII, THE FOLLOWING CLAUSE ALSO APPLIES: The parties agree that the provisions of Hawaiian Revised Statute §607-14 (http://www.capitol.hawaii.gov/hrscurrent/Vol13_Ch0601-0676/HRS0607/HRS_0607-0014.htm) or any other provision to the contrary shall not govern.
23. DISPUTES INVOLVING CREDIT CARD PAYMENTS:
As a condition of Hotel agreeing to accept your credit card as an approved form of payment for all Master Account charges, you agree that any dispute that you may raise with respect to any Master Account charges must be addressed directly between you and us and to work in good faith to resolve any such disputed invoices in a timely manner. Any dispute that cannot be timely resolved to the mutual satisfaction of the parties shall be resolved in accordance with the dispute resolution provisions as contained in this Agreement.
24. SUCCESSORS AND ASSIGNS:
The commitments made by each party will be binding on their respective successors and assigns. In the event that Group assigns, sells, conveys, pledges or otherwise disposes of all or substantially all of its assets (collectively referred to as “assignment”), by operation of law or otherwise, this agreement and the obligations herein must also be assigned to and assumed by the successor organization, subject to approval by Hotel. In the event such an assignment is completed, Group agrees to notify Hotel no later than least thirty days following the close of the assignment transaction of the entities involved. Hotel will thereafter have 20 days in which to notify Group if assignment is approved. Group may not otherwise assign this Agreement or any rights hereunder. You may not re-sell reservations. If we become aware of any violation of this section, we may immediately terminate the Agreement without incurring any liability to you for contracted rooms or rates and you will be responsible for any damages resulting from the cancellation as set forth herein.
25. SEVERABILITY; NON-WAIVER:
Any provision in this Agreement that is held to be illegal or unenforceable in any jurisdiction shall be ineffective to the extent of such illegality or unenforceability without invalidating the remaining provisions and any such illegal or unenforceable provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. The failure of either party at any time to require performance by the other party of any provision hereof will not affect in any way the right to require such performance at any time thereafter. The waiver by either party of a breach of any provision hereof will not be taken or held by the other party to be a waiver of the provision itself unless such a waiver is expressed in writing.
Any amendments or changes to the arrangements described in this Agreement must be made in writing, signed by both you and us; provided, however, that this Agreement includes all signed or unsigned Event Orders (and the terms and conditions contained therein and attached thereto) issued by us for this and related functions/events and that your final guarantee of attendance may be made by phone. For purposes of this Agreement and any amendment or modification thereto, or for any other notice or communication between the parties, signatures sent or received by email with a scanned document with signature attached or by facsimile transmission will be considered as enforceable and valid as an original signature by the party signing. The effective date of communications between the parties will be determined as follows: (i) communications sent via U.S. Mail or private mail delivery service (i.e. Fed Ex) or email will be effective as of the date sent; and (ii) Communications sent via facsimile will be considered effective as of the date and time on the facsimile confirmation sheet retained by the sender. For the avoidance of doubt, emails, including emails that bear an electronic “signature block” identifying the sender, do not constitute signed writings for purposes of this Agreement.
27. LIMITATION OF LIABILITY:
EXCEPT IN CONNECTION WITH THE INDEMNIFICATION OBLIGATIONS CONTAINED IN THE AGREEMENT, AND EXCEPT FOR PERSONAL INJURY OR PROPERTY DAMAGES, AND EXCEPT FOR DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OR FRAUD, (1) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME OR OPPORTUNITY, EVEN IF THE OTHER PARTY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES PRIOR TO THEIR OCCURRENCE, AND (2) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNTS IN EXCESS OF THE TOTAL FEES PAYABLE BY GROUP TO THE HOTEL IN CONNECTION WITH THE PROGRAM. THE PREVIOUS SENTENCE SHALL NOT LIMIT GROUP’S OBLIGATION TO PAY CANCELLATION DAMAGES, PERFORMANCE DAMAGES OR ATTRITION FEES (IF ANY) ACCORDING TO THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT.
Any notice required or permitted hereunder will be deemed to have been duly given only if in writing and delivered by any of the following methods: (i) U.S. mail, return receipt requested, postage prepaid; (ii) recognized courier service, fees prepaid, (iii) delivered by hand; or (iv) by facsimile directed to the person specified below at the facsimile number listed below with confirmation of receipt, in each case delivered to the addresses of the receiving parties set forth below or such other addresses as such parties may subsequently dictate according to the notice provisions hereof. NOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO GROUP UNLESS THE NOTICE TO GROUP’S GENERAL COUNSEL HAS BEEN DELIVERED. Notices shall be deemed delivered when received by the party being notified. If to Hotel, all notices shall be addressed and delivered to the contact name and address on the first page of this Agreement. If to Autodesk, all notices shall be addressed and delivered to the contact name and address on the first page of this Agreement with a copy to the attention of the General Counsel.
Unless otherwise indicated, the word dollar and the $ sign refer to United States currency.
This Agreement may be signed in counterparts, including but not limited to facsimile or scanned versions of the full document, each of which shall be deemed to be an original but all of which shall constitute an original and the same instrument.
Last Revised September 16, 2014