Internet Advertising Terms and Conditions

Hotel Engine Internet Advertising Terms and Conditions

This document, accepted and acknowledged electronically, represents the parties’ common understanding for doing business.

These Terms and Conditions are based upon the IAB/AAAA Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0, modified to cover purchases of Internet advertising made directly by a contracting party (“Customer”) from Hotel Engine, Inc., a Delaware corporation (“Hotel Engine”).

By registering and using the Hotel Engine advertising platform (the “Service”), you fully and unconditionally agree to these terms and conditions. Hotel Engine may modify these Terms and Conditions at any time, in its sole discretion, and your continued use of the Service after the effective date of any such modification shall constitute as acceptance of it. Hotel Engine further reserves the right to discontinue or modify any part of the Service at any time, without liability to you or any third party.

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AUTHORITY TO USE SERVICE
1. You represent and warrant to Hotel Engine that: (1) all information in your registration is complete and accurate; and (2) you have full power and authority to use the Service on behalf of the Customer identified in your registration.
DESCRIPTION OF SERVICE
1. The Service provides the ability for a Customer to create, pay for, and manage advertising campaigns to be served on Hotel Engine’s website and platforms (the “Site”), targeted to Hotel Engine visitors (an “Ad”).
AD PLACEMENT AND POSITIONING
1. Service Delivery. Hotel Engine will make all reasonable efforts to ensure the digital order, including all Ad placement restrictions, is delivered in accordance with the order details.
2. Changes to Sites and Technical Specifications. Sites and technical specifications, in their entirety, are provided during order creation. Hotel Engine will use commercially reasonable efforts to provide the Customer at least three (3) business days prior notice of any material changes to the Site that would materially change the targeting or materially affect the placement of the Ad specified on the applicable order. Should such a modification occur with or without notice, as the Customer’s sole remedy for such change, the Customer may cancel the remainder of the affected Ad placement without penalty within a ten-day (10-day) period of the changes.
REPORTING
1. Hotel Engine Reporting: Reporting is provided within and as part of the Service.
2. Customer agrees to notify Hotel Engine within sixty (60) days of receipt if reporting is incomplete or inaccurate. Hotel Engine agrees to investigate and resolve reporting notices in a commercially reasonable timeframe.
CANCELLATION AND TERMINATION
1. Without Cause. Hotel Engine may cancel the entire order, or any portion thereof, without notice. If the order is cancelled by Hotel Engine, a refund for remaining undelivered impressions will be provided. The Customer shall be entitled to terminate any order in accordance with Section IX herein.
2. For Cause. Either the Customer or Hotel Engine may terminate an order at any time if the other party is in material breach of its obligations hereunder, if the breach is not cured within ten (10) days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms regarding specific breaches. Additionally, if the Customer breaches its obligations by violating the same policy three times (and such policy was provided to the Customer) and receives timely notice of each such breach, even if the Customer cures such breaches, then Hotel Engine may terminate the order or placements associated with such breach upon written notice. If the Customer does not cure a violation of a policy within the applicable ten-day (10-day) cure period after written notice, where such policy had been provided by Hotel Engine to the Customer, then Hotel Engine may terminate the order and/or placements associated with such breach upon written notice.
DELIVERY
1. Under-delivery. The Customer will have the ability to monitor delivery within the Service. Hotel Engine does not have any responsibility to monitor delivery or provide remedy for or notice of under-delivery.
FORCE MAJEURE
1. Generally. Excluding payment obligations, neither the Customer nor Hotel Engine will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God or labor disputes (“Force Majeure event”).
2. Cancellation. If a Force Majeure event has continued for five (5) business days, Hotel Engine and/or the Customer has the right to cancel the remainder of the order without penalty.
AD MATERIALS
1. Approvals. Hotel Engine reviews all material provided by the Customer relating to an Ad (collectively, “Advertising Material”) prior to order execution. If the Advertising Material does not meet the terms of this agreement, Hotel Engine will notify the Customer to remedy. No impressions will be delivered until Hotel Engine has approved the order’s Advertising Material.
2. Paused Creative. If the Customer requests to pause a campaign at any point during the term of the order, the order details are subject to change or cancellation based upon availability at the time of resumption of the campaign, in Hotel Engine’s sole discretion. Hotel Engine will notify the Customer either electronically or in writing as soon as possible if Hotel Engine believes that any such change or cancellation may occur.
3. Compliance. Hotel Engine reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript) or the website to which the Ad is linked do not comply with its Policies, or that in Hotel Engine’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial, legal or administrative order. In addition, Hotel Engine reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule or scorn upon Hotel Engine or any of its affiliates, provided that if Hotel Engine has reviewed and approved such Ads prior to their use on the Site, Hotel Engine will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Customer.
4. Pixel Placement. If the Customer is permitted to collect any information from users of any website of Hotel Engine through a pixel, tag or other tracking method (“Advertiser Tag”) then: (a) the Customer shall provide Hotel Engine with prior written notice of all information collected by the Advertiser Tag; (b) the Customer shall not, without Hotel Engine’s prior written consent, (i) use information collected through the Advertiser Tag for any purpose other than delivering the Ads under the order including but not limited to the delivery of ads for third parties; or (ii) share any information collected through the Advertiser Tags with any third party; and (c) Hotel Engine may remove Advertiser Tags at any time in its sole discretion.
TERM AND PAYMENT
1. General Terms: Payment is due immediately upon receipt of an invoice. Any amount due that remains unpaid for 5 days after the invoice date will be subject to late fees. Account activity will be suspended if any amount remains unpaid for more than 15 days from the invoice date.
2. Term. The term of the Service shall be indicated on the order form between the Customer and Hotel Engine. The order form shall automatically renew for successive one-month periods until terminated in accordance with Section IX (b) below.
3. Termination. The Customer may terminate their order form at any time by providing Hotel Engine written notice. Hotel Engine shall terminate the Customer’s order within seven (7) days from the date it receives written notice of termination. The Customer shall remain liable for all pay-per-click ad payments that occur until termination is effective. After termination, Hotel Engine shall return any balance left on the Customer’s account within thirty (30) days.
4. Payment. Customer shall remit payment to Hotel Engine in the amount indicated on the order form. Customer authorizes Hotel Engine to charge the credit card on file on a monthly, reoccurring basis as indicated in the order form until terminated in accordance with this Section IX.
NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
1. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to order Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this Section X. Recipient will not use Discloser’s Confidential Information other than as provided for on the order.
2. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
3. Additional Definitions. As used herein the following terms shall have the following definitions:
  1. “User Volunteered Data” is personally identifiable information collected from individual users by Hotel Engine during delivery of an Ad pursuant to the order, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Customer.
  2. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the order (e.g., number of impressions, interactions, and header information), but excluding Site Data or order Details.
  3. “Site Data” is any data that is (A) preexisting Hotel Engine data used by Hotel Engine pursuant to the order; (B) gathered pursuant to the order during delivery of an Ad that identifies or allows identification of Hotel Engine, Hotel Engine’s Site, brand, content, context, or users as such; or (C) entered by users on any Hotel Engine Site other than User Volunteered Data.
  4. “Collected Data” consists of order details, Performance Data, and Site Data.
  5. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the order.
  6. “Aggregated” means a form in which data gathered under an order is combined with data from numerous campaigns of numerous Customers and precludes identification, directly or indirectly, of a Customer.
4. Use of Collected Data:
  1. Unless otherwise authorized by Hotel Engine, Customer will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any order Details or Site Data; (B) disclose order Details of Hotel Engine or Site Data to any affiliate or third party except as set forth in Section X(d)(iii).
  2. Unless otherwise authorized by Customer, Hotel Engine will not: (A) use or disclose order Details of Customer, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the order, compensating data providers in a way that precludes identification of the Customer, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the order.
  3. Customer and Hotel Engine (each a “Transferring Party”) will require any third party or affiliate used by the Transferring Party in performance of the order on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the order.
  4. All User Volunteered Data is the property of Customer, is subject to the Customer’s posted privacy policy, and is considered Confidential Information of Customer. Any other use of such information will be set forth on the order and signed by both parties.
5. Compliance with Law. Customer and Hotel Engine will always comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the order.
MISCELLANEOUS
1. Necessary Rights. Hotel Engine represents and warrants that Hotel Engine has all necessary permits, licenses, and clearances to sell the Deliverables specified on the order subject to these Terms. Customer represents and warrants that Customer has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the order and subject to these Terms, including any applicable Policies.
2. Assignment. Customer may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Hotel Engine’ prior written approval will be null and void. All terms and conditions in these Terms and each order will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
3. Changes to Standard Terms and Conditions. Hotel Engine may modify these Terms and Conditions at any time, in its sole discretion, and your continued use of the Service after the effective date of any such modification shall constitute as acceptance of it. Hotel Engine further reserves the right to discontinue or modify any part of the Service at any time, without liability to you or any third party.
4. Conflicts; Governing Law; Arbitration; Amendment. In the event of any inconsistency between the terms of an order and these Terms, the terms of the order will prevail. All orders will be governed by the laws of the State of Colorado. Hotel Engine and Customer agree that any and all claims, legal proceedings, or litigation (“Claims”) arising in connection with the order (including these Terms) will be resolved by binding arbitration, rather than in court, except that Hotel Engine and Customer may assert Claims on an individual basis in small claims court if they qualify. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
5. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Hotel Engine and Customer will be sent to the contact as noted on the order with a copy to the Legal Department. All notices to Customer will be sent to the address specified on the order.
6. Headings. Section or paragraph headings used in these Terms are for reference purposes only and should not be used in the interpretation hereof.
7. No Representations or Warranties; Limitation of Damages. To the fullest extent permitted by law, the service is provided “as is,” without warranties of any nature, and Hotel Engine and its related companies disclaim all warranties, express or implied, in connection with the service, including, without limitation, any implied warranties of title, merchantability, fitness for a particular purpose and non- infringement. In no event shall Hotel Engine or its related companies be liable for any consequential, indirect, incidental, or special damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of or unauthorized access to information, and the like, even if Hotel Engine or its related companies have been advised of the possibility of such damages. In no event shall Hotel Engine or its related companies be liable to you for an amount in excess of the total dollar amount received by Hotel Engine from you for the advertisement at issue.

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