These General Terms and Conditions, and the Intermediary Agreement Specific Terms (“Specific Terms”), each hereby made a part hereof (collectively, this “Agreement”), are entered into by and between the Hotel set forth on your Specific Terms (“Hotel”, “us”, “we”, or “our”), and the entity set forth on the signature page of your Specific Terms (“you” or “your”).
WHEREAS, you are in the business of facilitating and procuring guests to stay in hotel rooms;
WHEREAS, we wish to secure your services to facilitate and procure guests to stay in our Hotel;
WHEREAS, we have the right to determine, in our sole and absolute discretion, the nightly rate and other terms for the reservation of our rooms, and access to and availability of each of our rooms (including, for example, whether we offer unbundled/room-only products or bundled/package products or both);
WHEREAS, this Agreement sets out the terms and conditions by which you shall provide your services, including without limitation, providing for the protection of Hilton Worldwide, Inc.’s intellectual property.
For the term of this Agreement, you shall comply with all of the requirements set forth herein and as they may be amended from time to time. To the fullest extent permitted by law, we may modify any of the terms and conditions contained in this Agreement, or any documents referenced herein, at any time in our sole discretion. Notification to you of any change by email or by posting a notice on this website (the “Intermediary Web Site”) of the date of such modification, at our sole option, shall be considered sufficient notice to you of such modification. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued performance of your obligations following notice of a modification will constitute binding acceptance of the modification.
2. Non-Transferable Rates.
2.1 You are not authorized to provide the terms and conditions of this Agreement or any rates or rooms provided to you hereunder to your own or any other individual’s or entity’s internet booking/electronic or offline distribution systems or any other outlets, unless you are specifically authorized to do so in your Specific Terms and then only in the manner as shall be prescribed in this Agreement (i.e., static rates cannot be distributed online unless bundled in an appropriate package).
2.2 You further acknowledge and agree that you are solely responsible for ensuring full compliance with your obligations under this Agreement by your distributors or subcontractors. The rates and this Agreement are otherwise non-transferable and non-assignable.
2.3 You understand and agree that from time to time during the term, Hilton or the Hotel may provide you with a written notice advising you to cease from making the Hotel’s rates available to certain third party distributors that Hilton has identified as being noncompliant with Hilton’s policies or otherwise objectionable. No later than 10 business days following your receipt of any such notice, you must effectively cease making our rates available to all such identified distributors until such time that Hilton otherwise instructs you in writing.
2.4 If you or any of your distributors or subcontractors is in breach of this Section, the Hotel will have the right to immediately terminate by unilaterally refusing to perform this Agreement without incurring any liability to you for contracted rooms or rates. Furthermore, you agree to compensate us for any loss or damage arising from the breach of this Section by you or your distributors.
3. “Net” Rates.
If your Specific Terms include “net” rates, the following shall apply:
3.1 Net rates are net non-commissionable.
3.2 Unless otherwise stated in your Specific Terms, net rates are quoted exclusive of any applicable taxes, fees and assessments.
3.3 Room rates of tax are subject to change, and so if room rates are quoted inclusive of taxes as set forth in your Specific Terms, room rates may also be increased in proportion to increases in applicable tax rates.
3.3 The Hotel’s child policy will apply. Local fire safety restrictions govern total room occupancy.
4. Package Rates. If your Specific Terms include package rates, the following shall apply:
4.1 You and your approved distributors may only show package rates in package tours, or tour programs, and you and your approved distributors may not offer these package rates as room-only inventory in any manner (e.g. room, tax and/or fees listed separately). We may include bed & breakfast and other combinations of activities that we provide in room-only inventory. The prices for each of the package components (e.g., Hotel room, airfare and/or car rental, etc…) shall not be itemized for, disclosed to or discernible by the guest at any time (including but not limited to billing statements) and you must not provide functionality that would permit guests to strip the package down to view Hotel room rates separately at any time.
4.2 The guest may request additional nights to be added to their package, which may be offered by us to them in our discretion at then-available rates or the net rate for room-only nights.
4.3 We have the right of prior approval for all elements of packages in order to ensure the accuracy of material details and maintenance of the highest level of quality relating to our rooms. Accordingly, you agree that:
(i) the price of the Hotel rooms will not be visible to the end customer;
(ii) the total value of the package is substantially greater than the room only component;
(iii) the end customer is not able to purchase the Hotel room without purchasing all the travel elements of the package; and
(iv) the Hotel rooms are not packaged with inappropriate items (e.g., city transport card, airport transfer, museum ticket, etc.).
4.4 If we become aware of any violation of this section, we may immediately terminate by unilaterally refusing to perform this Agreement without incurring any liability to you for contracted rooms or rates. Furthermore, you agree to compensate Hotel for any loss or damage arising from your breach of this Section.
If your Specific Terms include allotment(s) (also sometimes known as allocations), the following will apply:
5.1 We may review your productivity and allotment usage on a quarterly basis to determine future rate structures and number of allotment rooms confirmed. Should production not meet reasonable requirements, we reserve the right to change the room allotment and rate at the end of each quarter.
5.2 We also reserve the right to reduce the allotment as we deem appropriate upon one month’s notice if you are not using 80% or more of the allotment each month calculated on the basis of the quarterly average for the Hotel and/or if in our opinion reservations submitted by or through you are not genuine, cancelled frequently and/or altered frequently.
5.3 Allotments mean the number and type of bedrooms we will hold available for you until the specified release date. You understand and agree that with respect to any allotment(s), you would be assisting us by helping us to sell the allotment of rooms that we make available to you and only in the manner described in this Agreement. For clarity, you have no risk of inventory loss if rooms within the allotment are not consumed and paid for by guests booking through your services.
5.4 Until you establish direct connectivity, reservation requests must be faxed or emailed to us at least the required minimum days in advance or else your allotment will be released. For inquiries, please feel free to contact us. Rooms over allotment may be available at package rates or at prevailing rates.
6. Blackout Dates.
If your Specific Terms include blackout dates, blackout dates are subject to change by us without notice. Please contact us for last minute availability. We will endeavor to accommodate your request at the best available rate.
Guestrooms are based on Run of House (ROH). For example, and without limitation, specific location of a guestroom within our Hotel, smoking versus non-smoking rooms, or bed type is not guaranteed. Consequently, confirmation of a guestroom with a particular characteristic (e.g., a room not near an elevator, non-smoking, or two beds) is on a request basis.
8. Your Obligation to Establish Direct Connectivity.
You shall use your best efforts to establish fully functional direct connectivity to Hilton’s reservation system, which shall be no later than six (6) months from the Effective Date of the Agreement. Before then and at all times throughout the term hereof, you shall be solely and directly responsible for all costs, fees, charges, expenses and compensation of any kind due or payable at any time in relation to bookings, reservations and all cost hereunder, notwithstanding any other agreements or understandings of any kind relating to payment of charges or fees relating to the bookings and reservations and including without limitation all charges, fees or costs of any kind due or payable to you or any third party (e.g., Global Distribution Systems (GDSs), switch providers and the like). All payments to you are processed by us through our payment processing system, which includes fees payable by you or by deductions from payments due to you and may require a payment processor. Payments will be paid solely to you and not to any third parties under any circumstances. Once direct connectivity is established, you must source Hotel rates directly through Hilton and the Hotel and not through other third parties.
9. Early Checkout.
If a guest checks out prior to the guest’s reserved checkout date, we will add an early checkout fee to that guest’s individual account. Guests wishing to avoid an early checkout fee should advise us at or before check-in of any change in planned length of stay. You may contact us for the current early departure fee, which is subject to change in the Hotel’s sole discretion.
10. Guest Changes
If a guest, upon arrival or during their stay, requests changes to their reservation (including for an extended stay) directly from the Hotel, then the Hotel shall charge the guest directly for such additional charges, including any applicable fees, incidental charges, other charges, and taxes. These charges must be paid in full prior to the guest’s departure, with individual credit being established upon check-in.
Individual cancellations must be received by the time set by us prior to scheduled check-in time to avoid a charge of one night’s room and tax. Cancellations received after this time will incur a charge in the amount of one night’s room and tax. You will be liable to pay this charge either through a deduction from your prepayment or by direct billing to your account, whichever applies. Hilton’s payment processing program may reduce payments due to you accordingly in the event of cancellations or early departure. Notwithstanding any other provision of this Agreement, we may cancel a booking in the case of an error. In such circumstances, you will provide all such reasonable assistance as we may require in respect of the cancellation of the relevant booking (e.g., help in contacting the prospective guest(s) and in handling inquiries).
12. Check-in/Check-out Times.
You may contact us for current check-in and checkout times and late checkout fees, each of which is subject to change in our sole discretion. All times are local Hotel times and fees are Hotel’s currency unless otherwise specifically stated. All guests arriving before our check-in time may be accommodated as rooms become available, provided that such early arriving guests elect to pay an early arrival fee if such a fee is charged by the Hotel. You may contact us for the current early check-in fee (if we charge such a fee), which is subject to change in our sole discretion. Our Guest Services Department can arrange to check baggage for those guests arriving prior to our check-in time when rooms are not yet available.
13. Bag Handling/Porterage Fees; Incidental Charges.
13.1 Payment of bag handling/porterage fees is the responsibility of the individual guest. Please contact the Hotel for the current baggage handling fee, which is subject to change in our sole discretion. If baggage handling is requested, you must provide the guest’s arrival and departure time.
13.2 Each individual guest is responsible for their own incidental charges. This may include, without limitation, porterage, business services (including faxes, meeting rooms, etc.) and all meals (including breakfast, lunch and dinner, any other food and/or room service). It is our policy that these charges must be paid in full prior to the guest’s departure, with individual credit being established upon check-in.
14. Loyalty Programs.
Guests will not receive HHonors points for reservations and bookings made through your service.
If your Specific Terms include “net” rates or package rates that are payable by invoice, then the following shall apply:
15.1 You must establish credit with the Hotel. We may require that you provide the Hotel with an irrevocable letter of credit drawn on an American Bank or bank with US affiliate acceptable to the Hotel, in the amount of US$ 10,000 or equal to your average billings for a two month period at the Hotel, whichever is greater. ALL COSTS/CHARGES FOR THE LETTER OF CREDIT ARE TO BE PAID FOR BY YOU. The letter of credit must be maintained for minimum of 12 months. By signing this form, you assume responsibility for advising Hilton in writing of any change in your company ownership PRIOR TO THE CHANGE. Failure to do so may result in Hilton immediately terminating by unilaterally refusing to perform this Agreement without incurring any liability to you for contracted rooms or rates.
15.2 Unless you have received notification in writing from us that your credit has been approved, all reservations must be paid in full by the required number of days prior to the guest’s arrival. If full payment is not received as required, the guest will be required to make a new reservation at the prevailing rate upon arrival at our Hotel.
15.3 If your credit has been approved in writing by us, we will be pleased to extend thirty (30) day credit privileges to you for room and tax.
15.4 All undisputed invoiced amounts are due and payable within thirty (30) days of receipt of the invoice, unless otherwise stated in the Specific Terms. Payments of undisputed amounts not made within thirty (30) days of receipt of the applicable invoice may be subject to late charges equal to an interest rate of U.S. Prime + 2%, or the maximum amount permitted by law, whichever is lower, of the overdue amount for each month (or portion thereof) that the payment remains overdue. To avoid this charge, you must pay all undisputed charges in a timely manner and send written notice describing all disputed charges.
15.5 We reserve the right to review your credit periodically and to require pre-payment at any time, in our sole discretion, should your credit status change in any manner.
15.6 Please send payment to the Hotel as directed in your Specific Terms.
16. Payment Processing Program.
Payments by you, through you or to you for net rates or package rates will be made according to the terms of Hilton’s payment processing program, as they may change from time to time, unless otherwise indicated in the Specific Terms.
17. Retail Rates.
If your Specific Terms include retail rates, the following shall apply:
17.1 You will not favor those retail rates over any other rate included in your Specific Terms, and you will treat all rates contained in your Specific Terms equally and without discrimination and you will be paid according to Hilton’s standard payment program policies. Those policies, which may change from time to time, may include specifications such as the total amount used as a basis for the payment (e.g., only the room rate and not incidentals, meals, VAT/GST, or any equivalent taxes, etc., whether or not bundled, collected or paid at the same time), fees payable by or deductible from payments to you and required payment processor(s).
17.2 You acknowledge and agree that in some instances, payments will not be due or paid on rooms offered as special or discounted rates/promotions.
17.3 As used herein, a “consumed booking” means a reservation at our Hotel resulting in a paid stay (which at our option may include guaranteed no-show bookings), excluding (i) amounts collected for sales taxes, VAT/GST, duties, handling, and similar charges and (ii) 0.30% of the total amount of each transaction to offset operating and administrative costs associated with the centralized travel agency commission program.
The term of this Agreement shall be three years beginning on the effective date set forth in your Specific Terms and shall be renewed automatically for one successive one year period. After the end of the initial three year term, either party may elect not to extend the Agreement for the additional one year period by providing written notice of its intent not to extend to the other party at least 60 days in advance of the end of the initial period. If Hilton assigns a unique ID number to you, you will use that unique identifier to track all bookings.
20. Room Terms and Conditions.
You acknowledge and agree that you will advise prospective guests as part of the terms and conditions for the room that: (i) guests are subject to, and accept our terms and conditions prevailing at the time of the booking; and (ii) that the room will not normally be available earlier than 15:00 hrs on the relevant day of the guest’s arrival. You acknowledge and agree that you will advise prospective guests that the room must be vacated no later than noon on the relevant date of the guest’s departure, or such later time as we may establish. You acknowledge and agree that you shall ensure guests are informed that failure by the guest to do so may incur a late departure charge being applied to the guest’s account, which must be settled by the guest on their departure.
21. 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 guests booking through your service, in the event any guest with a confirmed reservation cannot be accommodated by the Hotel, the Hotel will provide the following:
21.1 Accommodation paid by the Hotel at a comparable hotel as close as possible for the first night the guest is displaced from the Hotel.
21.2 One complimentary round trip ground transportation between the Hotel and the alternate hotel.
21.3 The Hotel will make necessary arrangements for the displaced guest’s telephone messages and mail to ensure that they are properly forwarded.
21.4 You will receive credit for any guests displaced toward your quarterly room night production numbers for purposes of this Agreement.
21.5 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.
22. Right to Refuse/Remove Guests.
We and Hilton reserve the right to refuse entry to, and remove any guest from, our Hotel and accommodation at our Hotel if any of our authorized employees considers, in his or her reasonable opinion, that the guest is under the influence of drink or drugs, is unsuitably dressed or is behaving in a threatening, abusive or otherwise unacceptable manner.
23. Communicating Information to Guests.
23.1 You acknowledge and accept that you must properly and effectively communicate to the guests all reasonable material information that we have provided to you relating to their stay at our Hotel. Such information shall include, but not be limited to, information about any facilities at the Hotel being unavailable, that building, refurbishment or repair work is taking place at, or near the Hotel, or that other reasons exist why their stay at the Hotel may not be as they anticipated.
23.2 You shall ensure that guests accept and agree with any terms or conditions in this Agreement that relate to them, and in addition our terms, conditions, rules and procedures from time to time in force governing guests staying at our Hotel (a current copy of which is available from us upon request) including, but not limited to, health and safety, security procedures and requirements as to registration.
24. Your Other Responsibilities.
24.1 Perform all of your obligations under this Agreement with reasonable skill, care and diligence, in an efficient, competent and professional manner and in accordance with best industry practice and in compliance with all applicable national and international laws and codes of practice from time to time in force (including, but not limited to, the Package Travel, Package Holidays and Package Tours Regulations 1992 (the “Regulations”) or equivalent local law where these Regulations do not apply to you);
24.2 Hold, and ensure that all your distributors and sub-contractors and employees hold, all permits, licenses and authorizations necessary or desirable to enable you to comply with your obligations under this Agreement;
24.3 Liaise with your Hilton account manager on a regular basis to review, discuss and monitor your satisfaction of your obligations hereunder;
24.4 Promptly provide to Hilton management information at such times and from time to time as Hilton may reasonably require; and
24.5 Promptly and fully notify Hilton and us of any complaint, claim or query raised by a guest or prospective guest relating to our Hotel or rooms.
25. Prohibited Actions.
You shall not without Hilton’s and/or our prior written consent:
25.1 Bind (or hold yourself out as being able to bind) Hilton or us to any contract or create any liability against Hilton or us nor describe yourself as anything other than an independent contractor of Hilton or us; and/or
25.2 Make or give any representation, warranty, statement or claim about Hilton or us or any of the facilities in any Hilton hotel except as and to the extent specifically authorized in writing by Hilton and / or us (for example, you are permitted to provide guests with information about the lodging accommodations and related services as provided to you by us).
26.1 To the fullest extent permissible by law, you shall fully compensate Hilton and us from and against any losses, claims, demands, damages, penalties, costs or expenses (including reasonable attorney’s fees) awarded against or incurred or paid by Hilton or us in relation to any claim made against Hilton or us by a third party (collectively, “Claims”) arising out of 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 you or “your parties” (as such term is defined in Section 28 below); or
(ii) the services provided by you or any of your parties hereunder or any related act or failure to act by you or your parties, including but not limited to the obligation of compliance with applicable laws and regulations, including without limitation any Claims related to violation of any privacy or data protection law, regulation or requirements, or infringement by you or any of your parties of the rights of any person, including without limitation, copyright, patent, trade secret, trade mark, or other intellectual property laws.
26.2 Nothing in this Section 26 shall require you to compensate Hilton or the Hotel from that portion of any Claim that has been caused by the negligence or willful misconduct of Hilton or us, or the breach by Hilton or us of any of the terms or conditions of this Agreement, or the breach of any law or regulation by Hilton or us, or from the guest/host relationship between Hilton or us 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 booking through your service.
27. Force Majeure.
Neither we nor Hilton shall be liable to you or any guest by reason of any failure to or delay in performing any of our obligations under this Agreement if the delay or failure was due to ‘Force Majeure’. For the purposes of this Agreement, “Force Majeure” shall mean any cause beyond Hilton’s or our reasonable control including without limitation: fire, flood, explosion, earthquake, storm or other natural disaster, civil commotion, strike, embargo any fault or delay by their sub-contractors or any industrial or civil dispute confined to part or all of their workforce, hostilities (whether war is declared or not), sabotage, terrorist attack, or the acts or decisions of any governmental, public or judicial authority (otherwise than pursuant to the act or default of the party concerned) or the imposition of any independent government sanction, or similar action made after the date of this Agreement.
28. Independent Contractor Status.
During the term hereof and thereafter, you and your family members and any and all of your distributors, subcontractors, agents, servants, licensees, invitees or employees, and any other person claiming by, under or through you to any extent (“your parties“) shall not be entitled to receive and shall not be eligible for any benefits of employment generally available to Hilton’s or our employees or their family members. All payments, if any, received hereunder by you shall be reported by you on your tax returns as consideration to you hereunder as an independent contractor. You acknowledge and agree that you are solely responsible and liable for the filing of all tax returns and the payment of all taxes, contributions, and other payments relating to your business and services. We will not deduct, withhold or pay (unless legally required to do so), and you shall be solely responsible for any income, employment, or wage taxes, workers’ compensation insurance premiums, unemployment benefit insurance, or any other payments that are ordinarily submitted or withheld by an employer on behalf of an employee (including without limitation any penalties or fines which may be assessed at any time). As applicable, we shall report payments to you hereunder to the tax authorities as payments to an independent contractor and you shall be solely responsible for all reporting and record keeping requirements applicable to independent contractors. If you desire any such insurance or benefits for you or your parties, you must obtain such insurance or benefits at your own cost and expense. You acknowledge and agree that you are solely responsible for performance of all duties, obligations and responsibilities as an employer of individuals hired or retained by you to fulfill your obligations hereunder, including, but not limited to, recruitment, interviewing, hiring, maintenance of personnel records, payment of wages, setting wage rates and supervision.
You shall be solely responsible and liable for out-of-pocket expenses incurred in connection with fulfilling your obligations hereunder, including travel expenses, food, and lodging, and for all other costs of conducting and operating your business.
30. Acknowledgments and Covenants.
30.1 You confirm and covenant that there are no agreements or arrangements, whether written or oral, that would be breached by you upon execution of this Agreement or that would impair or prevent you from fulfilling your obligations hereunder during the term hereof, and you further confirm and covenant and agree that you have and will maintain throughout the term hereof all qualifications required to fulfill your obligations hereunder, and that you have not made and will not make any commitment or do any act in conflict with this Agreement.
30.2 Given that Hilton is headquartered in the United States of America, hotels operating under the Hilton 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 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, you further confirm to Hilton and the Hotel that to your actual or constructive knowledge, neither you (including your directors and officers), nor any of your affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders or, to your knowledge, the funding sources for any of the foregoing, is: (i) identified on the OFAC List; (ii) subject to an embargo or economic or trade sanctions by the United States government; (iii) acting on behalf of a government of any country that is subject to such an embargo; and (iv) involved in business arrangements or otherwise engaged in transactions with countries subject to economic or trade sanctions imposed by the United States government. You agree that you will notify Hilton and the Hotel in writing immediately upon the occurrence of any event which would render the foregoing representations and warranties of this provision incorrect. Notwithstanding anything to the contrary in this Agreement, no transfer (including the sale, lease, assignment or transfer in any way of any direct or indirect interest in this Agreement or direct or indirect interest in you) shall be made by you to a Specially Designated National or Blocked Person (as herein defined below) or to an entity in which a Specially Designated National or Blocked Person has an interest. For purposes of this Agreement, “Specially Designated National or Blocked Person” means: (i) a person or entity designated by the U.S. Department of Treasury’s Office of Foreign Assets Control from time to time as a “specially designated national or blocked person” or similar status; (ii) a person or entity described in Section 1 of U.S. Executive Order 13224, issued on September 23, 2001; or (iii) a person or entity otherwise identified by government or legal authority as a person with whom Hilton is prohibited from transacting business. As of the Effective Date, a list of such designations and the text of the Executive Order is published under the internet website address www.ustreas.gov/offices/enforcement/ofac.
30.4 We may cancel by unilaterally refusing to perform this Agreement without incurring any liability to you for contracted rooms or rates if we reasonably believe it is necessary to do so in order for Hilton or the Hotel to comply with Hilton or our obligations under applicable laws, rules or regulations, including (but not limited to) if you are added to any restricted party listings as described in this Section.
31. Advertising, No Use of Names.
31.1 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”, 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 your Specific Terms that have been pre-approved by Hilton 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.
31.2 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.
31.3 You shall not modify any such approved Hilton materials or other Hilton Intellectual Property in any way. You shall 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 our prior written express consent, use any e-mail or search engine marketing to promote Hilton, us or your rights hereunder.
31.2 You shall not claim to be Hilton or us 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 us.
31.3 Subject to the foregoing, we hereby give 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.
31.4 Except as set forth in your Specific Terms, 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“).
31.5 This Agreement does not create any legal relationship of principal buyer or seller, partnership or joint venture.
31.6 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.
31.7 Accordingly, you acknowledge and agree that this Agreement does not otherwise permit you to sell or re-sell any rooms in Hilton hotels in any way, or to display any other information about Hilton or its owned, managed, leased, licensed and/or franchised hotels, including without limitation room prices or terms of distribution.
31.8 You agree to observe Hilton’s exclusive rights as to the Hilton Intellectual Property within all pay-for-placement and other search engines. We may provide you with the Hilton logo, our Hotel name or logo and applicable photos of us 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. We shall terminate by unilaterally refusing to perform the Agreement and you shall forfeit any pending compensation if you are utilizing or distributing software downloads that potentially enable diversions of compensation from other third-party intermediaries providing similar services.
31.9 If you violate any of the terms of this Section 31, we may terminate by unilaterally refusing to perform this Agreement in accordance with the termination provisions herein below and reserve the right to charge back, and/or disallow any and all compensation.
32. Confidentiality; Privacy.
32.1 You acknowledge that you may obtain or develop information or materials (including without limitation this Agreement) from Hilton and/or us and/or others, without warranty or representation of any kind, which Hilton considers or which you should consider proprietary and confidential to or of independent economic value to Hilton and/or us, actual or potential, regardless whether otherwise protectible under any law, and regardless of protection, markings or dissemination (“Confidential Information”). You covenant and agree that all Confidential Information will be considered, deemed and protected as proprietary and confidential to Hilton and/or us. You will not disclose or permit inevitable disclosure of Confidential Information by any of your parties (including without limitation storage or transmission in any electronic medium now known or hereafter developed), you will not allow or permit any Confidential Information to be corrupted or infected or misappropriated or used except and solely to Hilton’s right, title, interest and benefit, and you shall execute such further instruments as Hilton may require to carry out these covenants and agreements. Both parties agree that the restrictions herein are mutually agreed to be and shall be deemed to constitute reasonable efforts to maintain confidentiality.
32.3 You acknowledge and agree that all Hilton provided data or data provided by us that may be processed, stored or transmitted by you in the course of providing the services (the “Hilton Data”) is Hilton and our proprietary data and is subject to the confidentiality obligations set forth herein. At any time during or after the term of the Agreement, without regard to whether this Agreement is in effect or whether any dispute may exist between you and us or you and Hilton, you shall promptly return (or destroy, at our/Hilton’s option) all of the Hilton Data that may at that time be in your possession or control to us and/or Hilton, as applicable, upon written demand made by us and/or Hilton in such form or format, and on such media, as would reasonably allow us and/or Hilton to extract the Hilton Data (the “Data Return Obligation”). You may not condition your performance of the Data Return Obligation in any manner. You confirm and covenant that any delivery of the Hilton Data under the Data Return Obligation shall be an accurate and complete copy of the Hilton Data then in your possession or control.
32.4 Until the later of three (3) years after expiration or termination of this Agreement, you will maintain and provide copies of the records described hereinafter. You will maintain a complete audit trail of all fees collected in connection with the services performed under this Agreement (if any), and data security policies and other documentation demonstrating your compliance with the confidentiality obligations hereunder. You will provide to us, Hilton, or our or its internal or external auditors, inspectors, regulators and other designated representatives, at reasonable times (each, an “Auditor”) copies of such records for the purpose of performing audits of you. Such audits shall be conducted solely to (i) verify the accuracy of any charges and invoices (if any); (ii) verify the security and integrity of information and data; and (iii) examine your security procedures and controls as evidenced by your written documentation. You shall cooperate in connection with such audits and with regard to examinations by regulatory authorities.
33. Compliance with Laws; Licenses and Regulations.
You shall comply with all applicable laws, codes, regulations, ordinances and rules with respect to the work to be performed and the equipment or materials to be furnished hereunder promulgated by Hilton and/or us and any and all federal, municipal or other legislative bodies, courts or agencies having jurisdiction over your business, and over services of the nature of the services provided hereunder. You shall, at your expense, procure and maintain all permits or licenses which may be required at any time in connection with the fulfillment of your obligations hereunder.
34. Assignment and Subcontracting.
You may not assign or encumber this Agreement or any of your rights hereunder nor delegate or subcontract any performance or other obligations hereunder without our prior written consent and compliance with all other terms and conditions herein. You may from time to time recommend additional third-party intermediaries, but we shall have no obligation to contract with any such third-party intermediary. We may assign this Agreement or any rights, obligations or benefits hereunder to any party, including without limitation our owners, successors or affiliates, whether now in being or formed at some future time. This Agreement is by and between us and you and, except Hilton in regard to sections hereof benefiting Hilton, there are no third party beneficiaries to this Agreement. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
We may terminate by unilaterally refusing to perform this Agreement at any time, without cause, by sending notice to you as provided herein. Notwithstanding any such termination of this Agreement, the rights acquired or obligations incurred by the parties thereto prior to such termination shall not be affected and you shall remain liable for any and all damages, including real damages and lost profit, sustained by Hilton or us by reason of such termination or by reason of your default or breach and Hilton and we shall have and retain unimpaired all pertinent rights and remedies. Hilton and we shall be entitled to recover our reasonable attorneys’ fees, costs and disbursements in any action brought to enforce or interpret this Agreement. The right of Hilton and us to require strict performance and observation of any obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been given on the date of service if: (i) telefaxed (transmission receipt received) to the telefax numbers of the parties listed herein; (ii) served personally on the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, or private mail delivery service (i.e. Fed Ex), and properly addressed to the party at the address set forth below, or to any other address that a party may designate by written notice to the other party; or (iii) sent by electronic mail. 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 attached or by facsimile transmission will be considered as enforceable and valid as an original signature by the party signing. Hilton notice information is as follows:
Hilton Worldwide, Inc.
7930 Jones Branch Drive McLean, Virginia 22102
Attention: General Counsel
Your and our notice information is as set forth in your Specific Terms.
You shall not make or issue any public statement or announcement regarding the fact or the content of your Specific Terms, except as Hilton and/or us shall agree in writing to such statement or announcement prior to its issuance. You agree that, except as may be required by applicable law or regulation, you shall not use in advertising, publicity or otherwise, any information concerning this Agreement, the trademark, service marks, trade names or company names of Hilton or us, or disclose the terms and conditions of this Agreement without prior written consent of Hilton.
You shall procure and maintain at your expense during the term hereof policies of insurance of the types and in amounts no less than the minimum coverage specified below, with insurance companies, and upon terms, reasonably satisfactory to Hilton. Certificates of insurance of each and every such policy shall be delivered to Hilton Worldwide, Inc., Attn: Risk Management, 7930 Jones Branch Drive, McLean, VA USA 22102, Risk.Management@hilton.com, +1-703-288-1210 (TELEFAX) upon the execution of your Specific Terms and extensions or replacement certificates shall be timely delivered to Hilton during the term hereof. The General Liability policy shall name Hilton, us and each of our owners, partners, subsidiaries, affiliates, franchisees, and each of such persons’ or entities’ officers, directors, agents, contractors, and employees (collectively referred to as the “Indemnitees”) and each of them, as additional insureds. Changes, if any, to these coverage amounts and terms may only be granted by Hilton Risk Management in writing. You shall keep such insurance in force during the course of this Agreement and for a period of not less than one (1) year thereafter.
39.1 Commercial General Liability (including contractual, products liability and worldwide jurisdiction): USD1,000,000 per occurrence. With respect to any Claims or other liability for which you are responsible, your insurance will apply as primary to any insurance maintained by the Hilton Indemnified Parties.
39.2 Occupational Injury Insurance as required by law or custom, including statutory Workers’ Compensation insurance.
39.3 Professional Liability Insurance, Errors and Omissions, or equivalent coverage for liability arising out of your activities, in an amount of not less than Five Hundred Thousand US Dollars (USD500,000) per claim which shall include the coverage for attorney’s fees and investigation. Such policy shall cover claims arising out of negligent errors or omissions during the performance of professional services. The retroactive date of the policy must be shown on the certificate of insurance and must be before the Effective Date of the 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, Hotel shall make evidence of coverage available to you. 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.
40. Governing Law and Venue.
The parties agree to use their commercially reasonable efforts to informally and timely resolve any dispute concerning any matter related to the Agreement by presenting the dispute to senior representatives of each party for their discussion and possible resolution in the order set forth herein; provided, however, a dispute relating to infringement of intellectual property rights shall not be subject to this provision. If within thirty (30) calendar days after submission of a disputed matter in accordance with this clause, the parties 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 litigation. The Agreement will be governed by and interpreted pursuant to Russian law. Any dispute, controversy or claim which may arise out of or in connection with the present contract (Agreement), or the execution, breach, termination or invalidity thereof, or in tort shall be settled by the Arbitrazh Court of the City where the Hotel is located.
41. Entire Agreement.
This Agreement, including any documents referenced herein, contains the entire agreement and understanding between the parties with regard to the subject matter hereof, and supersedes all prior and contemporaneous oral or written agreements and representations.
The following additional terms and conditions shall apply:
42.1 Neither party hereto shall be deemed to be the drafter of this Agreement and, if this Agreement is construed in any court or arbitration proceeding, said court or arbitrator shall not construe this Agreement or any provision hereof against either party as the drafter hereof.
42.2 You are solely and directly responsible for prompt payment of any and all international, national, federal, state and local excise, sales, use, value-added, duty, tariff and all other taxes or charges imposed on you related in any way to this Agreement or your obligations hereunder, now known or unknown and now imposed or hereafter imposed.
42.3 Any provisions hereof which expressly provide that they survive expiration or termination or which must survive expiration or termination in order to be fully operative shall survive the expiration or termination of this Agreement.
42.4 Intentionally deleted.
42.5 Any dispute between the parties arising out of or in connection with this Agreement, or any alleged breach hereof, shall first be promptly submitted for discussion and possible resolution by your and our senior officers. If within a period of thirty (30) calendar days after submission of a disputed matter in accordance with this Section 42, the respective senior officers are unable to agree upon a resolution of such dispute, either party may give notice to the other party of its intention to pursue litigation. All negotiations pursuant to this Section 42 are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
42.6 If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provisions shall be deemed to be restated to reflect the parties’ original intentions as nearly as possible in accordance with applicable law.
43. No Partnership.
This Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties.
44. Certain Defined Terms.
If used in the Specific Terms, 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.
“Available Room” means any right or contingent right of hotel accommodation made available from time to time by us under this Agreement for possible reservation by or through an entity to customers.
“Customer Amount” means the total amount charged by you to the general public booking an IA Available Room.
“Full Price” means the amount for each available room charged to the general public, exclusive of Occupancy Taxes or other fees.
“IA Available Room” means an Available Room that we provide you access to for booking by customers.
“Net Rate” means the amount charged by a Participating Hotel for each reserved IA Available Room, exclusive of Occupancy Taxes.
“Occupancy Taxes” means any and all taxes imposed by a federal or local government upon the occupancy of a hotel, motel, rooming house or like entity, including, without limitation, VAT/GST, sales taxes, lodging taxes, resort taxes, room taxes, tourism development taxes and transient hospitality taxes, whether the tax obligation falls upon the individual occupant of hotel facilities or upon the operator of the hotel facilities, you, or otherwise, and any similar tax imposed on the basis of rental, possession, or use of hotel facilities, on the Net Rate or “Full Price” (as defined above) or difference between the Net Rate and the Full Price.
Last Updated: November 13, 2013