Master Services Agreement
NoiseAware Inc. d/b/a Rest
MSA Updated: 10/17/23
This Master Services Agreement ("MSA") is entered into between NoiseAware, Inc., doing business as Rest ("Rest"), and the individual or entity ("Customer") executing an Order Form that references this MSA. By incorporating this MSA in the Order Form, Customer agrees that the terms and conditions herein shall govern both Customer's access to, and Rest's provision of, the Services specified in the Order Form. This MSA takes effect on the date specified as the "Effective Date" in the executed Order Form and remains in effect for the duration of the "Initial Term" and any applicable "Renewal Term," collectively referred to as the "Term."
BY ACCESSING AND USING THE SERVICES IN ANY WAY, CUSTOMER AGREES TO BE BOUND BY THIS MSA, INCLUDING THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS BELOW. IF CUSTOMER DOES NOT WISH TO BE BOUND TO THESE TERMS AND CONDITIONS, CUSTOMER IS ADVISED NOT TO USE THE SERVICES.
1. DEFINITIONS AND INTERPRETATION.
All capitalized terms used in this MSA but not defined herein have the meanings set forth elsewhere in this MSA or the Order Form. Unless the context otherwise requires, capitalized terms used in both singular and plural forms shall be interchangeable and interpreted to have the same meaning. In addition, the following definitions apply for the purposes of this MSA and the Order Form:
1.1 “Accepted Currency” means the United States Dollar (“USD”) unless another currency is otherwise specified and mutually agreed upon as the Accepted Currency in a validly executed Order Form.
1.2 “Affiliate” or “Affiliates” means any entity or person that directly or indirectly, through one or more intermediaries, owns, controls, is controlled by or is under common control with, aligned with, or under the influence of any person or entity to which the reference is made. For the purposes of this definition “owned, controlled, aligned with, or under the influence of” shall mean more than fifty percent (50%) ownership of voting power or beneficial interest, or an officer, director, trustee, employee, stockholder of fifteen percent (15%) or more of the voting stock or interests (each an “Affiliate”). The Customer is jointly and severally liable for the acts of its Affiliates in relation to the Agreement (as defined below) and access and use of the Services (as defined below).
1.3 “Aggregated Data” shall mean numerical or non-numerical data derived from various sources, including but not limited to the Customer, Authorized Users (as defined below), and Customer Data, or data generated as a result of the Customer's use of the Services that is either masked or otherwise rendered anonymous and cannot be traced back to its original source. All Aggregated Data shall be the exclusive property of Rest. Aggregated Data shall not be considered to include Customer Data or to comprise Customer's Confidential Information. Rest and its Affiliates may also collect specific types of technical information for the purpose of providing support services and improving Rest Solutions and Services. Rest will not disclose such technical information in a form that personally identifies the Customer, except as required by law or regulation.
1.4 “Agreement” means collectively the Order Form (including any schedules, addendums, amendments, appendices, or statements of work attached thereto) and this MSA, incorporated thereto in its entirety, as amended from time to time.
1.5 “Authorized Users” means individuals who are employees of Customer or other end users authorized by Customer to access the Rest Solutions and Services.
1.6 “Business Day” means a day that is not a Saturday, Sunday, or public holiday in the United States.
1.7 “Contracted Room” means the room count at each Property as specified in the Property Description Schedule attached to the Order Form and/or any addendums or amendments associated therewith.
1.8 “Customer” shall mean the Customer’s legal entity listed on the Order Form, its employees, agents, and Authorized Users.
1.9 “Customer Data” shall mean data retrieved from, or inputted by, the Customer, data added by Customer to a Services application as a result of Customer’s access to the Service(s), or any other data or information of Customer accessed, obtained or provided to Rest by Customer pursuant to the Agreement. In no event shall Aggregated Data be considered as, or being comprised of, Customer Data.
1.10 “Confidential Information” of a Party means any information that one Party (“Disclosing Party”) discloses to the other Party (“Receiving Party”) that is marked as confidential or which by its nature the Receiving Party knows or ought to know is confidential (regardless of the form of the information and when it was acquired) and includes (without limitation) contracts and contract terms, pricing and fees, trade secrets, technical knowledge, computer source and object code, concepts, design details and specifications, plans, precedents, processes, methods, techniques, know-how, innovations, ideas, procedures, research data, financial information, databases, personnel data, computer software and programs, partner and supplier information, correspondence and letters and papers of every description including all copies or extracts of the same relating to the affairs or business of the Party.
1.11 “Documentation” means any training guides, technical documents, reports, online dashboard contents, and other documents related to the Services (as defined below) that Rest may make available to Customer.
1.12 Event Related Definitons:
a. “Compliance Fee” refers to the fee assessed by Customer based on an Event Record displayed on the Program Dashboard, for a guest’s violation of Customer’s no-smoking policy, which in no event shall be less than $250 if Customer is invoiced based on Variable Fees. Customer shall indicate for each Event Record whether a Compliance Fee has been charged and if so, the amount must be specified next to the corresponding Event Record. Compliance Fees will be charged by Customer to the guest's folio after the check-out time, but before date-roll in Customer’s property management system, on the date of the guest's departure.
b. “Event Action Rate” refers to the percentage of Event Records that result in recorded Compliance Fees within a particular time frame. The Event Action Rate is determined by dividing the number of recorded Compliance Fees by the total number of Event Records and multiplying by 100. For instance, if a Property records ninety (90) Compliance Fees during a month where one-hundred (100) Event Records were generated, the Event Action Rate for that month would be ninety percent (90%).
c. "Event Record" refers to the initial automated digital record displayed on the Program Dashboard, generated by Rest's proprietary algorithms, indicating smoking activity within a designated area for a given reservation night. Each Event Record serves as the foundational record for that night’s activity and the primary reference point for assessment of Compliance Fees that may be recorded by the property. These automated records are intended for review and potential action in accordance with Property policies, without necessitating immediate intervention.
d. “Event Update” refers to a subsequent automated digital record for the same room and reservation night, displayed on the Program Dashboard, following the initial Event Record. These automated updates are provided to document the frequency of smoking activity within a designated area. They are intended for review and potential action in accordance with Property policies, without necessitating immediate intervention.
1.13 “Fees” means the fees payable by the Customer to Rest for the Rest Solutions, Services, training, or other forms of service in connection with the Agreement.
1.14 “Go-Live Date” means the date after substantial completion of installation Services and Initial Training when Customer is granted access to the Program Dashboard and begins receiving Alerts at a particular Property.
1.15 “Hardware” means a sensor leased by Rest to Customer in connection with the Services, for purposes of non-intrusive, active monitoring, of hotel rooms and short-term rental locations, including metrics such as (i) sound (decibel) levels, and/or (ii) the presence and usage of combustible tobacco and marijuana; vaporized nicotine and THC; and other smoke-products. All Hardware must be returned to Rest upon the Agreement's termination or expiration.
1.16 “Intellectual Property” means any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship, including but not limited to copyrights and moral rights; (ii) trademark, trade name and trade dress rights and similar rights; (iii) trade secret rights; and (iv) patents, designs, database rights, algorithms and other industrial property rights; (v) software, including its structure, organization, software code, binary code, compiled code, source code, scripting, code and associated Documentation; (vi) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated), whether arising by operation of law, contract, license or otherwise; and (vii) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
1.17 “Order Form” means the document executed by Customer and Rest (including any schedules, addendums, amendments, appendices, or statements of work attached thereto) from which Services (as defined below) were ordered and to which this MSA in its entirety, as amended from time to time, is incorporated.
1.18 “Party” or “Parties” means, respectively, either Rest or Customer, and as the context requires both Rest and Customer.
1.19 “Property or Properties” refers to each individual location or collective locations as detailed in the Property Description Schedule attached to the Order Form.
1.20 “Program Dashboard” means the web-based software interface provided by Rest to Customer to manage and track Event Records, Event Updates, and Compliance Fees, adjustments, and comments by Customer’s Authorized Users.
1.21 “Rest” means NoiseAware, Inc. d/b/a Rest, a Delaware corporation.
1.22 “Rest Data” means any and all information contained in any Rest Solutions or Services including, but not limited to, pricing information and the output, but excluding only the Customer Data.
1.23 “Rest Solutions” means the Program Dashboard, Hardware, along with any other software, equipment, or system provided by Rest to Customer pursuant to a fully executed Order Form, in accordance with the terms of this MSA.
1.24 “Services” means Rest’s supply of services to Customer, which may include (without limitation) any of the following, each as more particularly described under a fully executed Order Form:
- a limited License to use any Rest Solutions;
- training and Documentation;
- installation, integration, maintenance, assistance or backup services;
- help desk and support services;
- other connectivity applications and interfaces;
- conversion or adaptation of data and information from Customer systems; or
- professional services as specified under any accompanying Statement of Work (“SOW”).
2. ACCESS TO SERVICES & LIMITED LICENSE.
Subject to the Customer’s continual timely payment of all Fees owed to Rest and abidance by the terms of the Agreement, Rest grants to Customer a limited, non-exclusive, fully revocable, non-transferable, non-sublicensable license (“License”) to use the Services in accordance with the terms of this MSA and any applicable Order Form for the Term of the Agreement. All rights not expressly set forth in the Agreement, including rights to Aggregated Data, are reserved by, and automatically inure to the sole ownership and benefit of, Rest. Customer acknowledges that all Services are provided on a subscription basis and Rest will not deliver copies of any software or code to Customer as part of the Services. Customer is not permitted to make any copies of Rest Solutions or Services. Customer and its Authorized User’s right to use the Services shall terminate immediately upon termination of the Agreement or upon termination of Authorized User’s employment or authorization to access the Services. Customer shall be solely responsible for monitoring and terminating, when appropriate, its Authorized Users’ access to all Rest Solutions and Services. Customer hereby grants to Rest a non-exclusive, fully paid, world-wide and irrevocable license to use Customer Data as required to provide the Services, and to copy, anonymize, aggregate, process, disaggregate and display Aggregated Data for the sole purposes of deriving, compiling or incorporating such Aggregated Data with or into other similar data and information available, derived or obtained from other clients, customers, licensees or users of the Services for internal statistical or performance analysis by Rest. Customer’s grant of license herein for Aggregated Data shall survive the expiration or termination of the Agreement. Rest represents and warrants that the scope of use of the Aggregated Data will be limited to the terms of this Section and upon disaggregation the Aggregated Data, will be anonymous and incapable of re-assembly or identification as to its specific source.
2.1 Initial Training. Rest will provide Customer with up to two (2) initial system training sessions on the Rest Solutions provided under a validly executed Order Form at no cost (“Initial Training”). Each Initial Training session shall last for a duration that is reasonably required to learn the applicable Rest Solutions, which shall be determined at Rest’s sole discretion. Any additional training requested beyond what is described under this Section will be charged by Rest to Customer in accordance with the scope of training required by Customer, subject to the advanced written approval of both Parties. If Customer requires Rest to provide any on-site training or support, Customer must reimburse Rest for any expenses incurred (including travel, lodging, and meals), subject to Customer’s prior written approval.
3. INVOICING AND PAYMENT.
Customer shall pay Rest for the Services in accordance with the Fees set forth in the executed Order Form.
3.1 Payment Terms. All Fees are due to Rest within fifteen (15) days of the invoice date and payments shall be made by Customer in the Accepted Currency. If Customer remits payment in any currency other than the Accepted Currency, Customer shall be responsible for all expenses incurred by Rest to accept such payment, including (without limitation) any associated currency conversion or transaction fees. All payments shall be made by wire transfer, Automated Clearing House (“ACH”) electronic funds transfer, or credit card (subject to credit card processing fees). Rest will submit itemized and detailed invoices for Fees, Taxes (if applicable), and expenses to Customer on a regular basis and will provide appropriate supporting documentation reasonably requested by Customer. If Customer has a good faith dispute with any invoice, Customer must provide written notification to Rest detailing the amount disputed, the nature of the dispute, and the relief requested, within ten (10) calendar days of the invoice date. Customer shall be obligated to pay ninety-five percent (95%) of the amount billed while an invoice is under dispute. Once the dispute over the invoice has been resolved, either: (i) Customer shall pay the remaining amount due to Rest within five (5) calendar days of such resolution; or (ii) Rest shall apply any overpaid amount as a credit to Customer’s next invoice. Customer’s failure to dispute in accordance with this Section shall constitute Customer’s waiver of any objection to the amount billed on an invoice. Except for invoices which are subject to a good faith dispute, Customer’s failure to pay, in whole or part, any invoice within five (5) calendar days of the due date, shall entitle (but not require) Rest to suspend all Services provided to the Customer without notice until such payment breach is cured by Customer. If Customer fails to pay a late invoice (not including any amounts subject to a good faith dispute) within ten (10) calendar days of the due date, then such unpaid amount shall bear annual interest at a rate of fifteen percent (15%) per annum, or the maximum rate allowed by law, whichever is lower, calculated from the date payment was first due to the date of actual payment. Customer shall pay any collection costs, including reasonable attorneys’ fees, and other expenses incurred by Rest to collect any sums due under the Agreement. Customer agrees that its obligations to make payments under the Agreement shall persist without interruption under various conditions including but not limited to: (i) the discontinuation of ownership, leasing, management, or control of any Property covered by the Agreement; (ii) alterations or impositions in franchise requirements affecting Rest's ability to provide Services; or (iii) any comparable events. In the event that Customer ceases to own, lease, manage, or control a Property ("Divested Property"), the financial obligations pertaining to such Divested Property may be waived at Rest’s sole discretion, conditional upon the succeeding party entering a separate agreement with Rest to receive Services for a period no less than the remainder of the current Term or a minimum of one (1) year, whichever is longer.
3.2 Taxes. Customer will pay all sales, use, service, excise, value added, and similar taxes, duties and fees levied by any taxing authority (“Taxes”) in connection with Rest’s performance of the Agreement, whether foreign, national, state, or local. In no event shall Customer be liable for taxes of Rest in respect of its net income, payroll, or any other business activity unrelated to Rest’s provision of Services to Customer hereunder. Except as expressly stated otherwise in the Agreement, all Fees exclude any applicable Taxes
3.3 Fees. Customer shall pay Rest the Fees set forth under any validly executed Order Form in accordance with the following terms and conditions, as applicable to the type of Fee (“Fee Type”) specified therein:
a. Installation Fees. Fees for professional services required to install Rest Solutions and to provide Initial Training (“Installation Fees”) will be invoiced immediately upon execution of any Order Form that includes Installation Fees.
b. Subscription Fees. Fees for Customer’s subscription to Rest Services will be invoiced after the Go-Live Date of each Property. Subsequent invoices will be issued in accordance with the billing frequency—annually, quarterly, or monthly—as specified in the Order Form. This billing schedule will continue for the entire duration of the Term. All Subscription Fees outlined under the Order Form are for Customer’s use of the Services and are not contingent on Customer’s successful collection of Smoking Fees. Subscription Fees may consist of fixed and/or variable Fees, as specified under the Order Form in accordance with the following terms and conditions set forth below:
i. Fixed Subscription Fees are predetermined amounts to be charged for a given Service (e.g. $25 per Contracted Room per month), as detailed in the Order Form (“Fixed” Fees”). Fixed Fees are not subject to change from month to month, unless otherwise agreed between the Parties in the Order Form.
ii. Variable Subscription Fees are calculated based on the Compliance Fees assessed by the Customer, either as a percentage of each Compliance Fee or as a specific dollar amount for each Compliance Fee, as detailed in the Order Form (“Variable” Fees). All Variable Fees are subject to Customer achieving an Event Action Rate of at least eighty percent (80%) for each Property on a monthly basis (“Event Action Minimum”). Customer agrees that if any Property subject to the Agreement fails to meet or exceed the Event Action Minimum in any month, Variable Fees for that month will be calculated as though the Event Action Minimum of eighty percent (80%) was achieved.
iii. Rest acknowledges that, due to the specific needs and circumstances of Customer's business, Hardware units may occasionally be unplugged or otherwise deactivated. Customer agrees to take specific measures, as agreed upon by both parties, to ensure that the Hardware remains activated in all Contracted Rooms. Any period of seven (7) continuous days during which a Hardware unit remains disconnected within a given monthly billing cycle shall be considered a "Customer Unit Outage." For each Customer Unit Outage within a monthly billing cycle, Rest reserves the right (but not obligation) to impose an additional Fee of $6.25. This Fee will accrue for each separate seven (7) day period of a Customer Unit Outage within the same monthly billing cycle. This Fee is intended to fairly compensate Rest for the lost opportunity to generate Event Records, which could otherwise lead to the assessment of Compliance Fees.
4. TERMINATION.
4.1 Termination Upon Breach. Either Party may terminate the Agreement if the other Party breaches or is in default of any material obligation, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) Business Days after receipt of written notice of such default from the non-defaulting Party. Customer’s intentional deactivation of the Hardware in bad faith to avoid payment of any Fees shall be considered a material breach under the Agreement. Termination upon breach in no way limits any rights or remedies the non-breaching Party may be entitled to in law or in equity pursuant to the Agreement.
4.2 Termination Upon Change in Financial Position. Rest may terminate the Agreement by giving written notice to the Customer if the Customer ceases to do business as a going concern; becomes insolvent, bankrupt or the subject of a receivership or administration; has a trustee or liquidator appointed for it; or has a substantial part of its Property subjected to any levy or seizure for or by any third party.
4.3 Force Majeure. Neither Party shall be responsible for delays or failures in performance resulting from acts beyond their reasonable control. Such acts shall include, but not be limited to: acts of God, strikes, lockouts, riots, acts of terrorism or war, fire, communication line failures, power failures, earthquakes, or other natural disasters (collectively, “Force Majeure Events”). Notwithstanding the foregoing, Customer’s obligation to make payments hereunder shall not be affected by any Force Majeure Events and Customer shall make any payments due and payable to Rest during such Force Majeure Events.
4.4 Agreed Damages Upon Early Termination. If Customer terminates the Agreement before the end of the Term for any reason other than Rest's breach, or if Rest terminates the Agreement due to Customer’s breach (collectively, “Early Termination”), Customer agrees to pay Rest as liquidated damages for such Early Termination, and not as a penalty, an amount equal to the greater of: (i) the pro-rated monthly average amount attributable to the Agreement that is reflected on billing statements issued by Rest to Customer during the twelve (12) months immediately prior to Early Termination, multiplied by the number of months remaining in the Term of the Agreement at the time of the Early Termination; or (ii) $120 per Contracted Room. The Parties agree that: (i) such amounts are liquidated damages payable to Rest for Customer’s cause of the Early Termination of the Agreement and are not a penalty; (ii) it would be difficult or impossible to ascertain Rest’s actual damages arising from such a termination of the Agreement; (iii) the amount of such liquidated damages represents a reasonable and good faith estimate of such damages; and (iv) the liquidated damages agreed upon under this Section are not indirect, punitive, special, incidental, statutory, exemplary, or consequential damages for purposes of the Agreement. If Customer causes the Early Termination of any individual Service or Services provided to a particular Property under the Agreement, the agreed upon damages provided under this Section shall apply as applicable to the specific Services terminated. Rest’s rights under this Section are in addition to any other rights that Rest may have hereunder.
4.5 Post-Termination. Upon termination or expiration of the Agreement, Customer shall pay all outstanding amounts due and payable to Rest. Rest will invoice Customer for all outstanding Fees immediately due upon termination. Customer shall cease use of all Services and return to Rest all Confidential Information received, all copies of the Documentation, and all Rest Solutions (including Hardware) in the Customer's possession immediately upon termination at Customer’s sole expense. If Customer does not return all Hardware supplied under the Agreement within thirty (30) Business Days following its termination or expiration, Customer must submit a payment of $100 per Contracted Room to Rest in addition to all other Fees due upon termination or expiration. Any Hardware units provided under the Agreement that are returned, but not in the condition in which they were originally received (except for normal wear and tear), will be subject to an additional $100 fee per unit. All other obligations of Rest and Customer that were incurred prior to the termination or expiration of the Agreement shall survive such termination or expiration.
5. CONFIDENTIALITY AND DATA USE.
5.1 Confidentiality. Each Receiving Party hereto shall not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations arising under the Agreement or as otherwise permitted herein. The Parties agree that all information concerning the design, functionality, and operation of the Services and/or Rest Solutions are proprietary and the Confidential Information of Rest. Rest acknowledges that Customer Data is the Confidential Information of the Customer.
5.2 Non-Disclosure. Each Receiving Party hereto shall use commercially reasonable efforts to keep confidential the Disclosing Party’s Confidential Information and shall not disclose such Confidential Information to any third party, other than its employees, agents, and Affiliates who are bound by confidentiality with terms at least as protective as this Section. Customer shall be responsible for the breach of this Section by its Authorized Users and Affiliates. The confidentiality provisions set forth herein shall survive termination of the Agreement.
5.3 Disclosure Required. A Party may disclose Confidential Information if required to do so by order of a court of competent jurisdiction after first giving notice to Disclosing Party and after taking all practicable steps to cooperate with Disclosing Party, at Disclosing Party’s requ to prevent the disclosure to the maximum extent permitted by law.
5.4 Public Domain. Confidential Information does not include any information that (i) is already lawfully known by the Receiving Party when received as a matter of record; (ii) is now or hereafter becomes generally available to the public through no fault of the Receiving Party; (iii) is received by the Receiving Party from a third party legally entitled to make such disclosure; (iv) is independently developed by Receiving Party without reference to or use of Confidential Information; or (v) is disclosed after the Receiving Party obtains prior written approval from the Disclosing Party for such disclosure.
5.5 Remedies. The Parties expressly agree that due to the unique nature of Confidential Information, monetary damages may be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of the covenants and agreements contained in this Section. Accordingly, the Parties agree that any such violation or threatened violation may cause irreparable injury to the Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity, or otherwise, the Disclosing Party shall be entitled to obtain injunctive relief against the threatened breach or the continuation of any such breach of this Section by the Receiving Party, without the necessity of proving actual damage.
6. INTELLECTUAL PROPERTY.
6.1 Ownership of Intellectual Property. Rest and its licensors shall retain and reserve exclusive ownership of all worldwide right, title, and interest, including without limitation, all Intellectual Property rights in and to Rest Solutions, the Services, and Aggregated Data; the design, functionality, operation, and components of the same; all derivative works, modifications, enhancements, and upgrades to the same; and Rest’s business methods. Except for the License granted herein, no right, title, or interest of any kind in the foregoing is granted to Customer pursuant to the Agreement. Customer will not and shall not acquire any rights in the underlying Rest Solutions, Services, or Aggregated Data in which Rest possesses all rights, title, and interests.
6.2 Customer Restrictions. Customer and its Authorized Users are expressly restricted from doing the following: (i) making derivative works, customizations, or enhancements based on Rest Solutions or Services; (ii) modifying, copying, duplicating, reproducing, adapting, altering, reverse engineering, decompiling, or reverse assembling, or otherwise attempting to derive or reveal the software code, binary code, compiled code, source code or the scripting code of all or any portion of Rest Solutions or Services for any reason; (iii) renting, leasing, selling, reselling, distributing, loan, or otherwise transferring Rest Solutions or Services; (iv) sharing or permitting any third parties to access or utilize Rest Solutions or Services without the express written consent of Rest; (v) sublicensing Rest Solutions or Services; (vi) using Rest Solutions or Services as a timesharing or service bureau or other similar type of service or (vii) removing, altering, or obscuring any copyright, trademark or other proprietary rights notice or labels on or in Rest Solutions or Services.
6.3 Brands and Marks. Each Party hereby grants to the other Party a limited, non-exclusive, non-sublicensable, non-transferable, revocable license throughout the Term of the Agreement to use its trademarks for the purpose of providing and receiving Services, and for each Party’s internal business purposes.
7. NETWORK SECURITY.
7.1 Confidentiality and Security of Access Credentials. Customer and its Authorized Users are responsible for maintaining the confidentiality and security of all passwords and usernames (“Access Credentials”) issued to access Rest Solutions and Services. Rest shall maintain the confidentiality of the Access Credentials and take reasonable steps to ensure that the Access Credentials are not accessed or made available to unauthorized persons. Except as a result of Rest’s breach of the foregoing, Customer shall be fully responsible for all activities that occur while accessing Rest Solutions and Services using the Access Credentials. Rest shall not be liable for any losses, damages, or liabilities resulting from: (i) misuse of Rest Solutions or Services by Customer or its Authorized Users; or (ii) someone other than Customer or its Authorized Users gaining access to Rest Solutions or Services through the use of the Authorized User’s Access Credentials, whether by Customer, its Authorized Users, or third parties who gain access through Customer's systems or network. In the event of any such unauthorized use or access, Customer shall promptly notify Rest and take immediate steps to remedy the situation, including but not limited to terminating access for the unauthorized party and implementing security measures to prevent further unauthorized access. Upon Rest’s reasonable request, Customer shall identify the Authorized Users it has given access to Rest Solutions or Services and notify Rest of any changes to such group. Customer agrees to implement and maintain policies and procedures to protect the security of Rest Solutions and Services. Rest shall have the right, in its sole and absolute discretion, to deny any individual’s access to Rest Solutions or Services due to legitimate security concerns.
7.2 Privacy Matters. Rest's provision of the Services involves the capture of machine-generated data essential for detecting smoking activities. Additionally, Rest collects non-personally identifiable information, such as confirmation number, arrival date, departure date, and room number, solely to assist the Customer in managing reservations and enforcing smoking fees. Rest's Hardware is expressly designed to not record voices or sound files. Beyond activities related to smoking detection, the Hardware is not capable of identifying specific individual activities within a space. Data may be transferred and processed by Rest within the United States and in other countries where Rest or its service providers have facilities, in compliance with applicable data protection laws. The transfer and processing are confined to non-personal data necessary for the provision of the Services. Customer acknowledges that the Rest Solution is not intended to store personally identifiable information ("PII") of Customer's guests and agrees not to input such information into the Program Dashboard or any Rest Solutions. Customer recognizes that Rest will not be liable for the inclusion of PII by Customer or Customer’s Agents in the Rest Solutions. The Customer is responsible for ensuring that no PII is entered into the Rest Solutions and for complying with all applicable privacy laws in relation to the handling of such information.
8. RESPONSIBILTIES; INFRASTRUCTURE.
Rest will provide, maintain and support the Services according to the Fees and terms in the applicable Order Form. Customer will (i) provide documentation and information reasonably requested by Rest necessary for the provision or use of the Services; (ii) reasonably cooperate with Rest with respect to the installation, maintenance, performance, and modification or enhancement of the Services; (iii) procure, operate, maintain, and manage any hardware, software, equipment, and communication services and lines (including configuration of SSID) as may be necessary for Customer to access and receive the Services at Customer’s sole expense; (iv) obtain any authorizations, access to premises and other cooperation from any third party reasonably required by Rest for the installation or provision of the Services; (v) notify Rest in writing at least thirty (30) calendar days in advance prior to any changes to any of its equipment, software, operations, network components or procedures that would affect the operation, provision or use of the Services; and (vi) promptly report malfunctions or interruptions of, or other service issues associated with, the Services to Rest. Rest reserves the right to upgrade or transfer Customer to new or continuing Rest Solutions at any time during the Term, provided such new solutions are functionally comparable to the old.
9. REPRESENTATIONS & WARRANTIES.
9.1 General. Each Party represents, warrants, and covenants that: (i) it is duly organized and validly existing under the laws of its state or location of formation or incorporation; (ii) execution of the Agreement has been duly authorized by all necessary company action; (iii) it has obtained and holds all licenses, permits and approvals of all governmental authorities necessary to perform its obligations hereunder; (iv) it will comply with all applicable laws, rules, codes and regulations; (v) that it has all power, right and authority to enter into the Agreement, to grant to the other Party the rights granted herein and to perform all of its obligations hereunder; and (vi) the execution, delivery and performance of its obligations hereunder do not conflict with and will not result in a breach or default by the other Party of any of its obligations under any other contract or agreement. In addition to the foregoing, Customer represents, warrants, and covenants that Customer and its Authorized Users will not use the Services, Rest Solutions, or Documentation in any manner that violates any local, state, or federal law or any law of other nations.
9.2 Trade Compliance. Each Party represents and warrants that neither it nor any of its Affiliates is a person or entity who: (i) is directly or indirectly owned or controlled by any person currently included on the specially designated nationals and blocked persons list or the consolidated sanctions list maintained by the office of foreign assets control, US Department of the Treasury ("OFAC") or other similar list maintained by any United States governmental entity (collectively, "SDN List"), or (ii) is directly or indirectly owned or controlled by any person or entity who is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other United States governmental entity. Customer shall immediately notify Rest if it becomes non-compliant with this Section at anytime during the Term of the Agreement and Rest shall reserve the right to terminate the Agreement immediately for cause and without further notice to Customer.
9.3 OFAC Covenant. Customer represents, warrants, and covenants to comply with all United States economic sanctions laws for the duration of the Term. Without limiting the generality of the foregoing, Customer shall not: (i) directly or indirectly export, re-export, transship, transfer, or otherwise deliver the Services or any portion of the Services to an embargoed target; or (ii) broker, finance, or otherwise facilitate any transaction in violation of any United States economic sanctions law.
9.4 Limited Hardware Warranty. Rest warrants that, upon installation and for the duration of the Initial Term (as defined under the Order Form) but in no event greater than three (3) years (“Hardware Warranty Period”), the Hardware will be free of material defects and will operate in material conformance with the applicable Documentation (“Limited Hardware Warranty”). Customer must notify Rest in writing of any alleged breach of this Limited Hardware Warranty promptly and within the Hardware Warranty Period. During the Hardware Warranty Period, upon written notice by Customer, Rest shall repair or replace the Hardware with equivalent Hardware at Rest’s sole cost and expense. Such replacement shall be made as soon as practicable after Rest retrieves the non-conforming Hardware at Rest’s expense. This Limited Hardware Warranty does not apply to any actual or alleged breaches resulting from Rest’s compliance with Customer’s instructions or where the Hardware has: (i) been subjected to abuse, theft, misuse, neglect, negligence, accident, improper storage, improper testing, improper installation, or improper handling by Customer, abnormal physical stress, or use contrary to any instructions issued by Rest, (ii) been reconstructed, repaired, or altered by persons other than Rest or its authorized representative; or (iii) been used with any third-party product, hardware, software, or product that has not been previously approved in writing by Rest. The Hardware is intended for installation by qualified professionals. Rest cannot provide any assurance that Customer is properly trained or experienced to correctly install the Hardware. Replacement of any Hardware not covered under the Limited Hardware Warranty or outside of the Hardware Warranty Period shall be subject to additional Fees.
10. DISCLAIMER OF WARRANTIES; INDEMNIFICATION; LIMITATIONS OF LIABILITY.
10.1 Disclaimer of Warranties. EXCEPT FOR THE LIMITED HARDWARE WARRANTY SET FORTH UNDER SECTION 9.4, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING (WITHOUT LIMITATION), ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, GOOD AND WORKMANLIKE SERVICE, REASONABLE SKILL AND CARE, OR NON-INFRINGEMENT, RELATING TO THE SUBJECT MATTER HEREOF ARE DISCLAIMED BY REST AND EXPRESSLY WAIVED BY CUSTOMER TO THE MAXIMUM EXTENT PERMITTED BY LAW. WITH THE EXCEPTION OF THE LIMITED HARDWARE WARRANTY, THE SERVICES PROVIDED UNDER THE AGREEMENT ARE PROVIDED AS-IS, AS-AVAILABLE, AND WITH ALL FAULTS. REST DOES NOT WARRANT OR GUARANTEE THAT REST SOLUTIONS OR THE SERVICES WILL BE FAILSAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS (INCLUDING WITHOUT LIMITATION “FALSE POSITIVES” OR “FALSE NEGATIVES”), NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. REST DOES NOT MAKE ANY WARRANTY THAT THE PRODUCTS WILL DETECT OR REPORT NOISE, SMOKE OR OTHER TRIGGERS, AND ANY STATEMENTS REGARDING DECIBELS, SMOKE LEVELS AND NOISE SCORES ARE ESTIMATES ONLY AND MAY NOT BE RELIED ON FOR DISPUTING VIOLATIONS OF APPLICABLE LAWS, INSURANCE OR ANY OTHER CLAIMS. CUSTOMER AGREES THAT REST SOLUTIONS, INCLUDING ANY ASSOCIATED USER INTERFACES, DATA OR REPORTS ARE NOT INTENDED TO BE USED AS EVIDENCE IN A LEGAL PROCEEDING AND REST SHALL HAVE NO OBLIGATION OR INVOLVEMENT THEREIN. REST FURTHER DISCLAIMS ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT OR SIMILAR LAW AS ENACTED BY ANY COUNTRY.
10.2 Disclaimer of Use for Safety Applications. CUSTOMER UNDERSTANDS THAT REST SOLUTIONS AND SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE AS A SAFETY DEVICE REQUIRING FAILSAFE PERFORMANCE. REST SOLUTIONS THAT ARE DESIGNED TO DETECT THE PRESENCE OF TOBACCO OR MARIJUANA SMOKE, OR SIMILAR SUBSTANCES, ARE NOT INTENDED TO ACT IN THE MANNER OF A FIRE ALARM OR SMOKE DETECTOR AND MAY NOT BE USED IN PLACE OF SUCH SAFETY DEVICES.
10.3 Indemnification.
a. Customer agrees to indemnify, defend and hold harmless Rest, its subcontractors and Affiliates, and each of their directors, officers, employees, agents and members, from and against any and all third party losses, claims, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) asserted against or incurred by Rest, related to or arising from: (i) Customer’s use of the Rest Solutions or Services, including where the same results in any actual or alleged violation of any law, privacy rights, or other regulation, including without limitation damages resulting from unauthorized use of, or access to, Rest’s network; (ii) Customer’s breach of any representations, warranties or agreements under the Agreement; (iii) Rest’s valid use of information and/or data provided by Customer; (iv) any events, occurrences or accidents related directly or indirectly to the use or occupancy of a Property or its related services, including, without limitation, claims for personal injury (including death) and property damage; (v) actual or alleged infringement of Intellectual Property rights by Customer’s information it provides to Rest, including (without limitation), Customer Data, Customer’s Confidential Information, brands, trademarks, logos, trade names, and/or content.
b. Rest agrees to indemnify, defend and hold harmless Customer, its affiliates, and each of their directors, officers, employees, agents and members, from and against any and all Claims asserted against or incurred by Customer related to or arising from: (i) Rest’s breach of any representations or warranties under the Agreement as a result of its willful misconduct or gross negligence; or (ii) actual infringement of Intellectual Property rights by the Services provided by Rest, including (without limitation), Rest’s Confidential Information, brands, trademarks, logos, trade names, and/or Rest Solutions. The foregoing obligation does not apply to the extent that the alleged infringement arises from Customer’s modifications or novel uses of such Services, or from its unauthorized integration into third party software.
10.4 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, STATUTORY, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES RENDERED BY REST TO CUSTOMER INCLUDING (WITHOUT LIMITATION) DAMAGES FOR: (I) LOSS OF REVENUE, PROFITS, INCOME, OR GOODWILL; (II) ANY LOSSES RESULTING FROM INACCURATE DATA, UNTIMELY DATA, SYSTEM DELAYS, SERVICE INTERRUPTIONS, OR DOWNTIME; OR (III) ANY LOSS OF DATA, USE, OR OTHER INTANGIBLE LOSSES ARISING UNDER OR RELATING TO THE AGREEMENT. NOTWITHSTANDING ANY OTHER TERM HEREIN, IF REST IS EVER HELD LIABLE IN RELATION TO THE AGREEMENT AND WHETHER THE CLAIM IS UNDER CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY, REST’S LIABILITY UNDER THE AGREEMENT IS LIMITED TO PROVEN DIRECT DAMAGES AND WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO REST UNDER THE TERMS OF THE AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT THAT GAVE RISE TO THE LIABILITY. REST ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER OR THIRD PARTY EQUIPMENT, SOFTWARE, OR DATA RESULTING FROM ANY CAUSE. REST ALSO DISCLAIMS LIABILITY FOR LIMITATIONS, DELAYS, OR FAILURES ARISING FROM THE INTERNET, WIRELESS NETWORKS, AND ELECTRONIC COMMUNICATIONS OUTSIDE OF ITS DIRECT AND REASONABLE CONTROL. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT.