January 25, 2021
January 25, 2021
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This document sets out the terms and conditions (referred to as the “Agreement” or “Terms & Conditions”) on which you may make use of the Reputation Pro Solution as a provider of an Internet Booking Engine, a Technology Service, or a Property Management System (referred to as “Partner” or “You”). Please read these Terms and Conditions thoroughly before using the TA Sites and the Reputation Pro Solution (collectively the “TA Services”). By using the TA Services you acknowledge and agree to be bound by these terms and conditions. Failure to comply with these terms and conditions will result in immediate withdrawal of the TA Services. Tripadvisor may, in its absolute discretion modify, suspend or terminate the TA Services at any time.
2.1. Subject to these Terms and Conditions, Tripadvisor shall provide a platform to make Transaction Data from a Feed provided by Partner available to a Participating Property for use with the Reputation Pro Solution.
2.2. Within one calendar month of commencement of this Agreement, Partner shall provide Tripadvisor with data (in the form required by Tripadvisor and notified to Partner) relating to all eligible Participating Properties. Partner shall update Tripadvisor on a weekly basis (or otherwise as mutually agreed) with newly eligible Participating Properties and Participating Properties that cease to be eligible in respect of the Reputation Pro Solution. Eligibility shall be determined at Tripadvisor’s sole discretion.
2.3. Within two calendar months of commencement of this Agreement, Partner shall ensure that End Users’ Transaction Data may be received by Tripadvisor for Participating Properties via the Feed.
All Transaction Data provided by Partner to Tripadvisor for use by a Participating Property are governed by these Terms and Conditions and must be submitted through a valid Feed. For the avoidance of doubt, the Reputation Pro Solution will only accept a request for a Reputation Pro Solution Communication received at any time prior to the day after the End User’s check-out date. No other conditions, provisions, or terms of any sort appearing in any writings or other communications, including without limitation those contained on or accompanying any form of payment, will be binding on Tripadvisor, whether in conflict with or in addition to these Terms and Conditions. Partner will always use the TA Services in accordance with applicable law and in a manner which does not interfere with, disturb, or disrupt other network users, services, or equipment, as determined by Tripadvisor in its sole discretion.
4.1. Tripadvisor reserves the right, without liability, to reject, remove and/or cancel any Feed which contains content or links which do not meet Tripadvisor’s specifications, at Tripadvisor’s sole discretion. Tripadvisor may redesign its site at its sole discretion at any time.
4.2. Partner hereby grants Tripadvisor the right and a royalty free license to use the Transaction Data in connection with the Reputation Pro Solution.
4.3. Partner shall be solely responsible for the content and accuracy of its Feed and any website linked to from such Feed. Partner shall ensure that any End User booking cancellations are recorded and Partner shall update its Feed accordingly to remove any End User booking cancellations.
4.4. Partner shall comply with Tripadvisor’s content policies, including without limitation, (i) not being selective about which End Users to contact to solicit reviews; (ii) not incentivizing review collection in any way; or (iii) any other policies or guidelines posted on the TA Sites (such as, but not limited to ), as such policies may be updated from time to time by Tripadvisor.
4.5. Reviews generated via the Reputation Pro Solution will be subject to Tripadvisor’s standard terms and conditions, and neither Partner nor any Participating Property shall have any rights in such reviews. When published, such reviews will be (a) displayed on TA Sites and, at Tripadvisor’s discretion, TA Licensee Sites; and (b) attributed on TA Sites with the phrase ‘review collected in partnership with this hotel’ or similar.
4.6. Public Announcements. Partner hereby grants Tripadvisor permission to publicize the fact that it is a client of Tripadvisor in a press release. However, Partner shall not make any public announcements about this Agreement or use/display Tripadvisor’s trademarks in any manner without the prior written consent of Tripadvisor.
5.1. Subject to the provisions of this Section 5, nothing in this Agreement shall prohibit or restrict either party from collecting, using, storing, disclosing or sharing any data collected from End Users or other individuals who interact with the TA Sites or Partner Site, respectively. Each party will have a privacy policy in place governing its use of End Users’ and other individuals’ personal information that meets or exceeds any applicable laws, rules and regulations governing the use of such information. Both parties shall ensure that any collection, use, storage, and disclosure of information obtained pursuant to this Agreement comply with all applicable laws, regulations and privacy policies, including all of the requirements of Data Protection Laws. Partner agrees not to send any unsolicited marketing email or other online communication (e.g., “spam“) through to Tripadvisor users or otherwise via the TA Services and shall comply with all applicable law regarding bulk mail and online communications. Without prejudice to the aforementioned, Partner ensures that it complies with all applicable laws, including directive 2002/58/EC, relating to the sending of Reputation Pro Solution Communications to End Users.
5.2. If You provide a Property Management System, You shall (a) procure that Participating Properties have obtained all necessary consents from PMS End Users, (b) document such consents, and (c) transfer to Tripadvisor only Transaction Data where consent has been obtained for processing. Each of the parties shall comply with its respective obligations under all Data Protection Laws relating to the protection of the fundamental rights and freedoms of natural persons and, in particular, their right to privacy with respect to the processing of personal data as defined within such Data Protection Laws and any applicable codes of practice.
5.3. If (a) You operate an Internet Booking Engine, You shall prominently display a privacy statement on each guest booking page and on each page on which you collect Personal Data from IBE End Users, and if (b) You operate a Technology Service, You shall prominently display a privacy statement on each page on which you collect Personal Data from TS End Users. In each case (a) or (b), such privacy statement must comply with all applicable Data Protection Laws and, without limitation, should explain: (a) that Partner is using third-party service providers, including Tripadvisor’s services, to process End Users’ Personal Data; (b) what information Partner collects from End Users; (c) why Partner collects it; (d) how Partner uses the Personal Data; (e) how End Users can access and update information; and (f) any other information necessary to meet or exceed any applicable Data Protection Laws.
5.4. Partner must also certify that the End Users associated with the Personal Data that Partner is submitting or processing (or has submitted or processed), including on behalf of Participating Properties as applicable, in conjunction with the TA Services have: (a) visited the applicable Property; (b) consented to have their Personal Data sent to Tripadvisor to receive Reputation Pro Solution Communications about the applicable Participating Property in accordance with all applicable Data Protection Laws; (c) have no personal or business relationship with the applicable Participating Property; and (d) have not been offered any incentives or payment for writing a review. Partner understands that (ii) Partner must store accurate and sufficient records of consent captured from End Users to receive Tripadvisor Reputation Pro Solution Communications about the applicable Participating Property; (iii) Partner may be asked to evidence how it obtained consent from the End Users to pass on their Personal Data to Tripadvisor; and (iv) Tripadvisor shall refer any queries it receives to Partner in the event an End User complains about receiving a Tripadvisor Reputation Pro Solution Communication.
5.5 This Section 5 shall survive the completion, expiration, termination or cancellation of this Agreement for a period of five (5) years.
Each Party expressly undertakes to retain in confidence and to require its agents and contractors to retain in confidence all information and know-how transmitted to such Party that the disclosing Party has identified as being proprietary and/or confidential or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential. All terms and conditions of this Agreement will be considered confidential and will not be disclosed (except to both Party’s attorneys and accountants on a need-to-know basis) without the prior written consent of the other Party. The parties further agree that the recipient of any confidential or proprietary information of the other party provided or received hereunder will use such confidential information solely for the purposes for which it is provided by the other party; will not disclose such confidential information to any third party; and will protect such confidential information from unauthorized use and disclosure; provided, however, that Tripadvisor may share the confidential or proprietary information that it receives hereunder with its affiliates and subsidiaries. The foregoing obligations will not apply to any (a) information that becomes generally publicly available through no fault of the recipient, (b) information that the recipient obtains from a third party (other than in connection with this Agreement); (c) information that is independently developed or acquired by the recipient; (d) disclosure with the prior written consent of the disclosing party; or (e) disclosures which are required by applicable law. Notwithstanding the foregoing, the recipient may disclose such confidential information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order.
This Agreement is effective upon the date that Partner accepts these terms. Tripadvisor may terminate this Agreement at any time with immediate effect. Partner may terminate this Agreement at any time through the platform, and Tripadvisor will endeavor to cease use of any Transaction Data within forty-eight (48) hours of such cancellation. NEITHER TRIPADVISOR NOR ANY OF ITS AFFILIATES WILL HAVE ANY OTHER LIABILITY OF ANY NATURE TO PARTNER OR ITS CUSTOMERS.
8.1. EXCEPT FOR (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, AND (II) BREACHES OF SECTION 5 (PRIVACY) OR SECTION 6 (CONFIDENTIALITY) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. EXCEPT FOR (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, AND (II) BREACHES OF SECTION 5 (PRIVACY) OR SECTION 6 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED $200,000. THE PARTIES AGREE THAT (I) THE MUTUAL AGREEMENTS MADE IN THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK, AND (II) THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
8.2. EXCEPT AS OTHERWISE STATED HEREIN, TRIPADVISOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES DISPLAYED ON THE TRIPADVISOR SITE OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE TRIPADVISOR SITE. TRIPADVISOR DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY PARTNER OR ANY THIRD PARTY AND SHALL IN NO EVENT BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.
8.3. Partner represents, warrants and covenants to Tripadvisor that at all times, (i) it has the express authority of each End User to provide the Transaction Data submitted in the Feed to Tripadvisor; (ii) each End User has visited a Participating Property; (iii) Partner’s collection and sharing of Transaction Data complies with all applicable laws and regulations and does not violate any laws or infringe the rights (including, but not limited to intellectual property rights and/or privacy rights) of any person; (iv) it shall comply with its respective obligations under all laws relating to the protection of the fundamental rights and freedoms of natural persons and, in particular, their right to privacy with respect to the processing of personal data as defined within such laws, including, but not limited to, the General Data Protection Regulation EU/2016/679 as supplemented by EU Member State law and as incorporated into the EEA Agreement (“GDPR”), the UK Data Protection Act 2018, and the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. (“CCPA”), directive 2002/58/ec, and successor legislation (“Data Protection Laws”) and any applicable codes of practice; (v) it has obtained or will obtain as soon as possible all the necessary consents and approvals required to carry out its obligations under, and ensure compliance with, this Agreement including the consent of any regulatory authority if necessary; and (vi) it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder, and its execution of this Agreement does not and will not violate any agreement to which it is a Party or by which it is otherwise bound, or any applicable law, rule or regulation.
8.4. Partner agrees to defend, indemnify and hold harmless Tripadvisor and each of Tripadvisor’s affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all losses, costs, (including reasonable attorney’s fees) expenses, damages, assessments, or judgments (collectively, “Liabilities”), resulting from any breach of warranty set out herein or any claims made by third parties against Tripadvisor arising out of Partner’s conduct in accordance with these Terms and Conditions, including without limitation in connection with Partner’s Feed, the sending of Reputation Pro Solution Communications to End Users, or data provided by Partner to Tripadvisor.
These Terms and Conditions are governed by the laws of the Commonwealth of Massachusetts, USA. By entering into this Agreement, Partner consents to the exclusive jurisdiction and venue of courts of Boston, Massachusetts, for all disputes related to the subject matter hereof. No joint venture, partnership, employment, or agency relationship exists between Partner and Tripadvisor. Tripadvisor will not be deemed to have waived or modified any of these Terms and Conditions except in writing signed by its duly authorized representative. The English language version of this Agreement is the definitive and controlling legal version. In the event this Agreement is translated into another language, it will be for the convenience of Partner only, and will have no legal effect. Partner may not assign its rights hereunder to any third party unless Tripadvisor expressly consents to such assignment in writing. If any provision of these standard Terms and Conditions is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be deemed modified to the extent necessary to make them enforceable. These Terms and Conditions will be deemed to be controlling over all other writings or agreements of any kind between the parties. All notices to Tripadvisor relating to any notices, termination, legal claims or other such related matters must be made in writing to Tripadvisor, attn: Legal Department, 400 1st Avenue, Needham, Massachusetts, 02494, USA. Tripadvisor may amend this Agreement at any time, by giving Partner notification of the amendments in writing or via email. Unless otherwise stated in the notification or unless Partner cancels this Agreement (as permitted by Section 7 herein or the notification), any amendments shall be automatically effective thirty (30) days after they are notified to Partner.
Last Updated: November 2020
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