XEVA Addendum Standard Terms and ConditionsDe Sholler2022-09-09T20:36:37+00:00
XEVA Addendum Standard Terms and Conditions
These XEVA Addendum Standard Terms and Conditions are incorporated into each XEVA Addendum to Experience Pro Agreement (each referred to herein as an “Addendum”) executed by Xplorie and Lodging Provider as though fully set forth therein. To the extent that these XEVA Addendum Standard Terms and Conditions shall conflict with any provisions of the Addendum or the applicable Experience Pro Agreement, the terms contained in such Addendum or Experience Pro Agreement shall control. Any capitalized terms not otherwise defined herein shall have the definition given to such terms in the Addendum or Experience Pro Agreement.
1. Defined Terms:
a. “Activities” shall mean recreation, transportation, dining, concerts, events, entertainment, tours and attractions, and other similar activities, including, without limitation, the activities compromising one or more complimentary activity programs under the Experience Pro Agreement.
b. “Commission” shall mean the amount collected by Xplorie from a guest staying in a Unit (individually, a “Guest” and collectively, the “Guests”) in consideration for admission to an Activity (also referred to collectively as the “Commissions”).
c. “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 these Standard Terms and Condition, the Experience Pro Agreement, or any other 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 (subject to the notice requirements as set forth in the Experience Pro Agreement).
d. “Device” shall mean the actual electronic hardware device, including power cord, utilized to transmit the Voice Assistant, an example of which is the Amazon Echo Dot.
e. “Device Cost” shall mean the greater of (1) the current retail value of the Device, or (2) Forty-Nine and 99/100 Dollars ($49.99).
f. “Market Information” shall mean information regarding a particular lodging market area, including but not limited to Activities.
g. “Party” shall mean either Xplorie or Lodging Provider (collectively Xplorie and Lodging Provider may be referred to as the “Parties”).
h. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
i. “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.
j. “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”).
k. “Xplorie Business” shall mean collectively the provision, whether by sale or otherwise, of Activities to Guests.
l. “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.
m. “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 a Voice Assistant enabled Device for each Unit, 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.
3. 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. To the extent that implementation of the Devices is delayed by a period of thirty (30) days or longer, and such delay is not the result of any action or inaction of Xplorie, Xplorie shall provide written notice to Lodging Provider of such delay. If, within fourteen (14) days after receipt of such notice there are still one or more Devices that have not been implemented, Xplorie shall invoice Lodging Provider for the Device Cost of each such delayed Device plus an amount equal to Two Thousand and No/100 Dollars ($2,000.00).
c. 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.
d. Xplorie represents and warrants to Lodging Provider that the Virtual Concierge Platform will perform substantially as intended.
e. 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.
4. License and Intellectual Property.
a. Subject to the terms of the Addendum, the Experience Pro Agreement, and these XEVA Addendum Standard Terms and Conditions, 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 4, 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.
5. 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 (i) sell and distribute Activities to Guests; provided, however that any Activities sold or distributed to Guests shall be subject to Lodging Provider’s approval, which approval shall not be unreasonably withheld, conditioned, or delayed, and (ii) 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 or their placement within the Virtual Concierge Platform shall be the sole and exclusive property of Xplorie.
6. 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. All such data associated with Devices 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 the Guest Information. Usage Data is Confidential Information of Xplorie for purposes of these XEVA Addendum Standard Terms and Conditions, the Addendum and the Agreement.
7. 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.
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 an Addendum shall give a Party an interest, license, or right to otherwise use the other Party’s intellectual property outside the scope of the Addendum for any purpose other than as specifically set forth herein. Except as otherwise specified, nothing in these XEVA Addendum 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 Standard Terms and Condition shall be construed as conveying an authorization of Lodging Provider to use the logo, name or trademarks of the manufacturer of the Devices.
9. Expiration/Termination. In the event of the expiration or termination of the Experience Pro Agreement:
a. Lodging Provider shall, within thirty (30) days of the expiration or earlier termination of the Agreement, 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 9 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.
b. All licenses granted Lodging Provider hereunder, together with access to the Virtual Concierge Service, shall terminate on the effective date of any termination or expiration of the Agreement. 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.
10. 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 XEVA Addendum 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 with 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.
11. 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.