SmartHost Standard Terms and Conditions

These SmartHost Standard Terms and Conditions are incorporated into each addendum and/or agreement executed by Xplorie and Lodging Provider in which they are referenced, as though fully set forth therein (such referencing addendums and/or agreement are each referred to herein as a “Primary Agreement” and collectively as the “Primary Agreements”). To the extent that these SmartHost Standard Terms and Conditions shall conflict with any provisions of a Primary Agreement, the terms contained in such Primary Agreement shall control. Any capitalized terms not otherwise defined herein shall have the definition given to such terms in the applicable Primary Agreement.

 

1. Defined Terms:

a. “Activities” shall mean recreation, transportation, dining, concerts, events, entertainment, tours and attractions, and other similar activities.

b. “Confidential Information” shall mean any non-public information obtained from the other Party that has been identified by the disclosing Party as confidential and/or proprietary at the time of disclosure or that a reasonably prudent person under the circumstances would expect to be confidential. “Confidential Information” does not include information, data or know-how that (i) is or becomes publicly available without breach of any agreement between the Parties; (ii) can be shown by documentation to have been known to the receiving Party prior to its receipt from the disclosing Party; (iii) is rightfully received from a third Party who did not acquire or disclose such information by a wrongful or tortious act; (iv) can be shown by documentation to have been developed by the receiving Party without reference to any Confidential Information; or (v) that the receiving Party becomes legally obligated to disclose to a governmental entity with jurisdiction over it.

c. “Device” shall mean the actual electronic hardware device, including power cord, utilized to transmit the Voice Assistant, examples of which are the Amazon Echo Dot and the Amazon Show 8.

d. “Device Cost” shall mean the greater of (1) the current retail value of the Device, and (2) the Device Setup Fee.

e. “Market Information” shall mean information regarding a particular lodging market area, including but not limited to Activities.

f. “Party” shall mean either Xplorie or Lodging Provider (collectively Xplorie and Lodging Provider may be referred to as the “Parties”).

g. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

h. “Virtual Concierge Platform” shall mean the Xplorie virtual concierge software as a service platform, all underlying software, all copyrights, patents, trade secrets and other intellectual property rights therein and associated therewith, and all such services, items and offerings therein (as such currently exists together with other related products and services which Xplorie may develop in the future) which enables the control and customization of certain Voice Assistants for use as a virtual concierge, and any embedded third party software, libraries, or other components which form a part of such platform.

i. “Voice Assistant” shall mean a digital assistant that uses voice recognition, natural language processing and speech synthesis to provide aid to users through phones and voice recognition applications (also referred to collectively as “Voice Assistants”).

j. “Xplorie Business” shall mean collectively the provision, whether by sale or otherwise, of Activities to Guests.

k. “Xplorie Content” shall mean all Market Information generated by Xplorie and/or others acting on its behalf and stored at any time within the Virtual Concierge Platform. Unless expressly provided otherwise, Xplorie Content shall be deemed Confidential Information.

l. “Xplorie Intellectual Property” shall mean all Intellectual Property made, developed, conceived, first reduced to practice, fixed in any tangible medium of expression, or created independently by Xplorie and its partners with or without contribution from Lodging Provider during the Term, including, to the extent applicable, the Xplorie Content.

 

2. Xplorie shall provide Lodging Provider with Voice Assistant enabled Devices, together with access to its Virtual Concierge Platform. Xplorie agrees to replace broken, lost, or stolen Devices; provided, however, that Xplorie shall have the right, exercisable in its sole discretion, to charge Lodging Provider the Device Cost for stolen and lost devices in the future.

 

3. Xplorie Fees:

a. SmartHost Monthly Subscription Fee: For purposes of calculating the SmartHost Monthly Subscription Fee, the number of Devices assigned to Units for a monthly billing period shall be determined by reference to the Virtual Concierge Platform as of the 1st day of the month immediately following the applicable monthly billing period and shall exclude stock Devices and Devices assigned to administrative offices of Lodging Provider.

b. Device Setup Fees: The Device Setup Fee shall be payable on all devices ordered by Lodging Provider, including stock Devices and Devices assigned to administrative offices of Lodging Provider. Device Setup Fees for Devices ordered by Lodging Provider after the Effective Date shall be due and payable at the time of order.

c. Onboarding Fees and Device Setup Fees are non-refundable.

d. Except when bundled with Xplorie’s Experience Pro Solution, all payments owed Xplorie hereunder shall be paid via credit card. Any payment not received by Xplorie from Lodging Provider within thirty-days of invoice shall be subject to a one and one-half percent (1.5%) per month late payment charge. Prior to payment, amounts due Xplorie shall be held by Lodging Provider in accordance with all applicable local, state and federal laws, codes and ordinances, including, without limitation, those applying to trust accounts (if applicable).

 

4.  Implementation, Support, and Limited Warranty.

a. Xplorie and Lodging Provider will work together to configure the Devices and Virtual Concierge Platform utilizing remote resources. Lodging Provider shall provide Xplorie with necessary configuration-related information in a timely manner to ensure that mutually agreed implementation schedules are met.

b. Xplorie shall provide full support for the Virtual Concierge Platform at no additional charge to Lodging Provider, including technical support during normal business hours in the Pacific Time Zone with maximum response times of one hour per incident. Xplorie shall use commercially reasonable efforts to make the Virtual Concierge Platform available 24 hours a day, 7 days a week, except for necessary planned downtime, when Xplorie shall give Lodging Provider at least 48 hours’ notice. Xplorie shall provide the Virtual Concierge Platform in accordance with all applicable laws and government regulations.

c. Xplorie represents and warrants to Lodging Provider that the Virtual Concierge Platform will perform substantially as intended.

d. Xplorie’s sole obligation and Lodging Provider’s sole and exclusive remedy for any breach of the foregoing warranty is limited to Xplorie using commercially reasonable efforts to correct any non-conforming aspects of the Virtual Concierge Platform at no additional charge to Lodging Provider. In the event that Xplorie is unable to correct material deficiencies in the Virtual Concierge Platform arising during the Term, after using Xplorie’s commercially reasonable efforts to do so, Lodging Provider shall be entitled to terminate the Agreement as Lodging Provider’s sole and exclusive remedy. Xplorie’s obligations hereunder for breach of warranty are conditioned upon Lodging Provider notifying Xplorie of the breach in writing and providing Xplorie with sufficient evidence of such non-conformity to enable Xplorie to reproduce or verify the same. Lodging Provider expressly waives any and all other warranty claims of any nature whatsoever against Xplorie.

 

5.  License and Intellectual Property.

a. Subject to these Standard Terms and Conditions and the terms contained in the Primary Agreements, during the Term, Xplorie grants to Lodging Provider a worldwide, royalty-free right and license to use the Virtual Concierge Platform in connection with providing the Voice Assistants for use by Lodging Provider’s Guests.

b. Xplorie reserves the right to modify the Virtual Concierge Platform in Xplorie’s reasonable discretion; provided, however, that no such modifications shall materially adversely affect its intended use as a virtual concierge.

c. Except as expressly agreed otherwise in writing, Lodging Provider shall not attempt to place any Market Information into the Virtual Concierge Platform, and Xplorie shall at all times have the right to modify, limit and otherwise restrict the content placed within the Virtual Concierge Platform. It is expressly understood that Xplorie has the right to utilize the Virtual Concierge Platform for the Xplorie Business.

d. Unauthorized use and/or copying of the Virtual Concierge Platform is prohibited by law, including United States and foreign copyright law. Lodging Provider shall not reverse compile, disassemble or otherwise convert the Virtual Concierge Platform into uncompiled or unassembled code.

e. The Parties will promptly notify each other of any and all actual or attempted infringements or violations by third parties of any of the intellectual property rights associated with the Virtual Concierge Platform. Lodging Provider will provide reasonable assistance to Xplorie in taking such action to enforce Xplorie’s rights against the parties infringing or violating such rights. The foregoing provisions of this Section shall apply with the same force and effect with respect to all copyrights, patents, trade secrets, common law claims, and other legally protectable intellectual property rights included within the Virtual Concierge Platform.

f. All Xplorie Intellectual Property, will be the sole and exclusive property, including the entire right, title and interest, of Xplorie. Lodging Provider agrees not to obtain or claim any rights in or ownership interest to the Virtual Concierge Platform or the Xplorie Intellectual Property and agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Lodging Provider through the Virtual Concierge Platform. Lodging Provider agrees to perform all acts that Xplorie may reasonably request to assist in obtaining the full benefits, enjoyment, rights, title, and interest in the United States and throughout the world, in the Xplorie Intellectual Property; provided, however, that Xplorie shall reimburse Lodging Provider for all actual out-of-pocket expenses incurred with regards to such assistance. Such acts shall include, without limitation, execution of documents, and the assistance in the prosecution of patents, copyrights, trademarks, and trade secrets.

g. Lodging Provider shall not represent that it has any proprietary interest in Xplorie, or its technology, trade secrets, or intellectual property, nor shall Lodging Provider attempt to reverse engineer or replicate the technology or access the proprietary computer code of Xplorie.

 

EXCEPT AS PROVIDED FOR IN THIS SECTION 5, XPLORIE HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE VIRTUAL CONCIERGE PLATFORM, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE VIRTUAL CONCIERGE PLATFORM IS NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED.

 

6. Third-Party Costs, Fees and Commissions.

a. Xplorie shall be responsible for the payment of all third-party royalty or licensing fees associated with use of the Virtual Concierge Platform.

b. Xplorie shall have the exclusive right to monetize the Market Information, including, without limitation, the placement of Activities within the Virtual Concierge Platform. Any consideration paid in connection with the sale of Activities (collectively, the “Commissions”) or their placement within the Virtual Concierge Platform shall be the sole and exclusive property of Xplorie.

c. Lodging Provider shall be responsible for remitting any and all federal, state, and local taxes that may become due as a result of these SmartHost Standard Terms and Conditions and/or any Primary Agreement.

 

7.  Content and Data.

a. Data Security. As part of the Virtual Concierge Platform, Xplorie shall provide commercially reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of content residing or being stored therein. Lodging Provider acknowledges that such safeguards endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Lodging Provider should consider any particular Xplorie supplied security-related safeguard as just one tool to be used as part of Lodging Provider’s overall security strategy and not a guarantee of security. Both parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the Parties hereunder.

b. Usage Data. Subject to the limitations set forth herein, data generated by the Virtual Concierge Platform in connection with use by Guests is the property of Xplorie and shall be deemed Confidential Information of Xplorie for purposes of these SmartHost Standard Terms and Conditions and the Primary Agreements. All Usage Data associated with Devices and provided to Lodging Provider hereunder is licensed to Lodging Provider for the duration of the Term. Examples of Usage Data includes, but is not limited to, records regarding interactions with Devices by users of the Virtual Concierge Platform including, without limitation, specific topic inquiries and responses; provided, however, that the Usage Data specifically excludes booking data received by Xplorie from Lodging Provider (by electronic mail or other application program interface), including the registered guest’s first and last name, unit occupied, dates of arrival and departure, and reservation number (collectively, the “Guest Information”). Unless otherwise agreed to by Lodging Provider, Xplorie shall not use the Guest Information or other information obtained as a result of such guest’s patronage with Lodging Provider, including email addresses and cell phone numbers, for any purpose other than that which is reasonably necessary for Xplorie to perform its obligations pursuant to these SmartHost Standard Terms and Conditions and/or one or more Primary Agreements. Xplorie agrees not to share or sell the Guest Information, and Xplorie further agrees not to use such information for solicitation of guests. Notwithstanding this Section 7(b), however, Lodging Provider understands that Xplorie and/or its affiliates engages, and in the future may engage, in marketing activities that include, but are not limited to, the development of one or more websites, social media platforms, and purchasing third party consumer lists for direct and digital advertising (the “Xplorie Marketing Activities”) and that all information and customer data obtained through such Xplorie Marketing Activities shall not be deemed Guest Information.

 

8. Each Party shall keep confidential and not disclose to any third party any Confidential Information. It is expressly understood and agreed by the Parties that money damages may not be a sufficient remedy for any breach of this Section 8 and that the disclosing Party shall be entitled to specific performance, including, without limitation, injunctive relief, as a remedy for a breach by the receiving Party. Such remedy shall not be deemed to be the exclusive remedy for breach of this Section 8 but shall be in addition to all other remedies available at law or equity.

 

9. Marketing.

a. Each Party shall have the right to make use of the logo or name of the other for marketing purposes; provided, however, that the prior written authorization of the other is obtained prior to such use, which prior written authorization shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, however, nothing contained in the Primary Agreements shall give a Party an interest, license, or right to otherwise use the other Party’s intellectual property outside the scope of the Primary Agreements for any purpose other than as specifically set forth herein. Except as otherwise specified, nothing in these SmartHost Standard Terms and Conditions shall be construed as a transfer, sale, license, or waiver of either Party’s intellectual property. Neither Party shall take action that would compromise or have the effect of diminishing any of the other Party’s intellectual property rights.

b. Nothing contained in these SmartHost Standard Terms and Conditions shall be construed as conveying an authorization of Lodging Provider to use the logo, name or trademarks of the manufacturer of the Devices.

 

10. Expiration/Termination.

a. Except as otherwise expressly provided in a Primary Agreement, these SmartHost Standard Terms and Conditions and all agreements in which they are referenced, may be terminated only for failure of either party to perform its obligations or meet the conditions required hereunder or in a Primary Agreement. In the event of a breach of the terms of these SmartHost Standard Terms and Conditions or those of a Primary Agreement, the non-conforming party must be given written notice of its deficiency or non-performance and an opportunity to correct the deficiency or non-performance within (10) days of receipt of such notice. If such deficiency is not timely corrected, the other party may terminate the applicable Primary Agreement by written notice to the non-conforming party. In addition to termination for such breach, the parties hereby reserve all other remedies that may be available at law or in equity, and the prevailing party in any dispute arising under these SmartHost Standard Terms and Conditions and/or a Primary Agreement shall be entitled to recover costs, reasonable attorneys’ fees, and any interest due under the terms of this Agreement, in addition to any award of damages.

b. Lodging Provider shall, within thirty (30) days of the expiration or earlier termination, return all Devices in Lodging Provider’s possession, either in Units or otherwise, to Xplorie via hand-delivery or nationally recognized carrier. Any Device not returned pursuant to this Section 10 shall be invoiced by Xplorie at an amount equal to the Device Cost, which invoice shall be due and payable within ten (10) days following Lodging Provider’s receipt of same.

c. All licenses granted Lodging Provider hereunder, together with access to the Virtual Concierge Service, shall terminate on the effective date of such termination or expiration. For purposes of clarification, all content stored within the Virtual Concierge Service shall be the property of Xplorie; provided, however, that such ownership shall not extend to Guest Data.

 

11.  Acceptable Use.

a. Lodging Provider shall use commercially reasonable efforts at all times to ensure that no unauthorized Persons have access to the Virtual Concierge Platform, and to ensure that no Persons authorized to have such access shall take any action that would be in violation of these SmartHost Standard Terms and Conditions.

b. Lodging Provider represents and warrants to Xplorie that Lodging Provider has the right to publish and disclose any content placed by Lodging Provider within the Virtual Concierge Platform. Lodging Provider represents and warrants to Xplorie that the content placed by Lodging Provider within the Virtual Concierge Service: (a) does not infringe or violate any third-party right, including but not limited to intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable person, and, (c) is not hateful or threatening.

c. Lodging Provider will not (a) use, or allow the use of, the Virtual Concierge Platform in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Virtual Concierge Platform any virus or other code or routine intended to disrupt or damage the Virtual Concierge Platform, or alter, damage, delete, retrieve or record information about the Virtual Concierge Platform or its users; (c) except in concert with Xplorie, perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan; or (d) otherwise act in a fraudulent, malicious or negligent manner when using the Virtual Concierge Platform.

d. Only Devices obtained from Xplorie shall be connected with the Virtual Concierge Platform.

e. For Amazon Devices, the Virtual Concierge Platform is built on the Alexa for Hospitality service, which is provided by Amazon. Lodging Providers utilizing Amazon Devices agree to the Alexa for Hospitality – Owner/Manager Terms of Use, which are accessible at https://www.amazon.com/alexahospitality/owner-manager-terms-of-use and in such instances Amazon and its affiliates shall be deemed third-party beneficiaries of these SmartHost Standard Terms and Conditions and the Primary Agreements. Additionally, for Amazon Devices located in the United Kingdom, Lodging Provider hereby acknowledges receipt from Xplorie of signage containing data and privacy disclosures required by Amazon and hereby agrees to post such signage wherever the devices are in use.

 

12. In any controversy or claim arising out of, or relating to these SmartHost Standard Terms and Conditions or any Primary Agreement(s), or their breach, (i) venue shall lie exclusively in the state and federal courts of Okaloosa County, Florida, and Lodging Provider expressly waives any defenses to such jurisdiction and venue, and (ii) the prevailing party shall be entitled to recover, in addition to any award of damages, costs, reasonable attorneys’ fees including such fees and costs incurred on appeal, and any interest due hereunder.

 

13. Except as expressly provided otherwise, Lodging Provider shall not make use of the logo or name of any company providing an Activity, whether in broadcast or print advertisements, promotions, brochures or literature of any kind without the prior written authorization of such company being obtained for the specific use in each instance in which Lodging Provider desires to use the name or logo.

 

14. Any notice required or desired to be given under these SmartHost Standard Terms and Conditions or a Primary Agreement shall be deemed received if in writing and sent by electronic mail to the email addresses for the parties set forth in a Primary Agreement, or such other email address as either party may designate from time to time.

 

15. Any waiver of a breach or failure to enforce any term or provision of these SmartHost Standard Terms and Conditions or a Primary Agreement shall not operate or be construed as a waiver of any subsequent breach.

 

16. Lodging Provider may not assign its rights or delegate its duties or obligations under these SmartHost Standard Terms and Conditions or a Primary Agreement without the prior written consent of Xplorie. The parties’ rights and obligations under this Agreement shall inure to the benefit of, and shall be binding upon, the parties’ successors and approved assigns. Lodging Provider hereby consents to the assignment of rights and delegation of duties arising under this Agreement by Xplorie to any entity with which Xplorie may merge or by which Xplorie may be acquired.

 

17. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, understandings, negotiations, and discussions, whether written or oral, between the parties regarding the subject matter hereof. Except as expressly provided in Paragraph 19 below, no amendment, modification, or waiver of any provision of this Agreement will be effective unless in writing and signed by the parties hereto.

 

18. The Parties agree that if there are any typographical errors, mathematical mistakes, or other obvious “scrivener” errors in the documentation prepared in connection with the Addendum, the Parties agree to make appropriate corrections in good faith, and each party hereby further agrees and covenants to execute and deliver to the other such documents as may be reasonably required and/or requested by Xplorie to accomplish the correction of such mistakes or errors.

 

19. At any time and from time to time during the Term, Xplorie may amend and update these SmartHost Standard Terms and Conditions as determined in Xplorie’s sole and arbitrary discretion, provided that Xplorie shall give reasonable notice to Lodging Provider of any material changes that may adversely affect Lodging Provider, in which case Lodging Provider, as its sole and exclusive remedy, may elect to provide written objection to such material change within thirty (30) days of receipt of such notice and thereafter Xplorie shall have the option to either revise/retract such proposed change or terminate these SmartHost Standard Terms and Conditions and the related Primary Agreement(s), which election shall me made no later than that date which is thirty (30) days following receipt of Lodging Provider’s objection.