Welcome to Hoick’s hospitality analytics services (the “Services”). Hoick provides the Services to hotels, restaurants and other hospitality businesses (“Customers”) and their guests. In these terms “you” refer to the Customer, Customer personnel using the Services (“Users”), or guests using the Services, as appropriate. By subscribing for and/or using the Services, you agree to these terms. Please read them carefully.

1. Account Terms

1.1 Subscribing

Customers subscribe for Services by executing a Service Order Form with Hoick. The Service Order Form lists the Services of the Customer’s subscription. Except as otherwise set forth on a Service Order Form, this Agreement will automatically renew for a period equal to the initial term unless either party notifies the other in writing of its intent not to renew at least thirty (90) days prior to expiration of the then-current term.

1.2 Security

You are responsible for maintaining the security of your account and password, and are responsible for all activities conducted using your account and password. Hoick cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.

2. Use Restrictions

2.1 Appropriate Use of Services

You may not: (a) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (b) modify or make derivative works based upon the Services; (c) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or strip, scrape, or mine data from the Services; (d) frame, mirror or reverse engineer the Services; or (v) overload the Hoick systems used to provide the Services.

2.2 Guest Communications

Certain Services permit Customers to send email, SMS and other messages to their guests. The sending of commercial messages is regulated by law of their country which collectively imposes requirements regarding the integrity of SMS content and compliance with acceptable use policies. Customer is responsible for complying with all applicable laws, published rules and policies regarding communication with its guests. Customer represents and warrants that it has obtained written or electronic opt-in permission from each guest to send messages to that guest. If a guest opts out of a specific form of messaging from Customer (e.g. SMS), Customer will update the Services accordingly.

2.3 Use of Proprietary Third Party Content

You may not modify, republish, reproduce, post, transmit, sell, offer for sale, or redistribute Third Party Content (as defined in section 3.4) without the prior written permission of Hoick and if applicable, the rights holder of Third Party Content (such as industry research data). You must abide by all copyright notices, information, or restrictions related to any Third Party Content.

2.4 Personal Data Protection

Where personal data is transferred, a Customer may need a Data Protection Agreement (“DPA”) in place with its subprocessors to ensure an adequate level of protection for the transferred data.

3. Ownership Rights

3.1 Ownership of Services

The Services (including all Software and Hoick Confidential Information used to provide the Services) belong to Hoick. Even if the terms “purchase” and “sale” are used, you do not receive ownership rights in the Services and have only those license and use rights in this Agreement.

3.2 Ownership of Customer Confidential Information

Customer Confidential Information belongs to Customer (or the person or other entity from whom Customer received information). Nothing in this Agreement assigns any rights in that information from you to Hoick.

3.3 Ownership of Respective Trademarks

You may not use the Hoick name, logo or other marks without Hoick’s prior written consent. Ownership of all such marks and the goodwill associated therewith remains with Hoick.

3.4 Ownership of Content Received from Third Parties

Hoick gathers, stores, analyzes, displays and uses a variety of information, such as: (a) publicly available reviews and hotel rankings posted on third party web sites, feedback and information provided by guests at Customer facilities, posts from social media sites and forums, news articles, blog posts, photos and videos, and (b) commercially available data regarding hospitality businesses and guest travel and hospitality trends, such as hotel occupancy rates and rate metrics, marketing engagement data and guest travel information (collectively “Third Party Content”). Some Third Party Content is public information (such as online hotel reviews) and other Third Party Content is proprietary to its creators (such as industry research data). Third Party Content may be owned by the people or entities that publish the content, or by other parties.

4. Confidentiality

4.1 Personal Data

Hoick will protect Personal Data regarding individuals as described in Hoick’s Privacy Policy (the term Personal Data is defined in the Privacy Policy).

4.2 Confidential Information

Subject to the limitations in the next paragraph, all information disclosed by Customers to Hoick or by Hoick to Customers during the term of this Agreement, whether in oral, written, graphic or electronic form, is considered “Confidential Information”.

4.3 Exceptions

Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.

4.4 Nondisclosure

Hoick and each Customer agree that during the term of this Agreement and for a period of three years following termination of this Agreement (and indefinitely as to trade secrets of the disclosing party), neither will disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who have been informed of the receiving party’s confidentiality obligations under this Agreement and who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.

5. Payment

Customer will pay Hoick in the currency described on an Order Form (or US Dollars if not specified) the fees in the amounts and at the times specified on the Service Order Form. Unless otherwise stated, all fees are due on receipt of the Hoick invoice, and all fees are non-cancelable and non-refundable. Overdue balances by 30 days or more are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law. Customer will be responsible for any sales, use, value added, excise, property withholding or similar tax and any related tariffs, and similar charges, except taxes based on Hoick’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Hoick hereunder. If an applicable tax authority requires Hoick to pay any taxes that should have been payable by Customer, Hoick will advise Customer in writing, and Customer will promptly reimburse Hoick for the amounts paid. Hoick may suspend the Services until all undisputed payments are received.

6. Indemnification

6.1 By Customer

Customer will indemnify, defend, and hold harmless Hoick, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents (the “Indemnitees”) from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys’ fees) (together, “Claims”) brought by third parties (including Users) arising from or relating to (a) any information Customer or any User submits, posts, or transmits through the Services or any other act or omission of Customer or any User in connection with the Services, (b) Customer’s, or any User’s, grossly negligent use or intentional misuse of the Services, (c) Customer’s, or any User’s, breach of its material obligations under this Agreement, and (d) Customer’s, or any User’s, violation of any rights of any other person or entity arising out of or related to the use of the Services.

6.2 By Hoick

Hoick at its own expense will defend or settle any claims, actions and demands brought by third parties against Customer and its Indemnitees where the third party expressly asserts that the Services: (i) infringe such third party’s trademark or copyright or (ii) Hoick misappropriated such third party’s trade secrets in the development of the Software (collectively, “Claims”). Hoick will conduct the defense of any such Claim, any related proceedings and actions, and all negotiations for settlement or compromise of the same. Customer may in its discretion participate in the defense of any such Claim and any related proceedings and actions at Customer’s expense. The foregoing obligations are conditioned on Customer notifying Hoick promptly in writing of such action, giving Hoick sole control of the defense thereof and any related settlement negotiations, and cooperating in such defense. If the Services become, or in Hoick’s opinion are likely to become, the subject of an infringement or misappropriation Claim, Hoick may, at its option and expense, either: (a) procure for Customer the right to continue exercising the rights licensed hereunder; (b) replace or modify the Services so that they become non-infringing and remain substantially functionally equivalent; or (c) refund to Customer any advance fees paid by Customer to Hoick for periods during which Customer is unable to use the affected Services due to such Claim and terminate this Agreement. Notwithstanding the foregoing, Hoick will have no obligation under this Section or otherwise with respect to any infringement or misappropriation Claim based upon: (w) any unauthorized use or distribution of the Services by Customer or any of its Users; (x) any use of the Services in combination with other products, software, or data not supplied by Hoick; (y) any modification of the Services by any person other than Hoick or its authorized contractors; or (z) any Third Party Content, or the collection, storage or provision of Third Party Content. This Section states Hoick’s entire liability, and Customer’s sole and exclusive remedy, for infringement and misappropriation claims and actions.

6.3 Settlement of Claims

Neither Customer nor Hoick may settle or compromise any Claim that requires the other party to pay any amount, or take any action, without the other party’s prior written consent.

7. Representations and Warranties; Warranty Disclaimer

7.1 Authority

Each of Hoick and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation and shall continuously be in good standing in the jurisdiction of its formation.

7.2 Compliance with Laws

You represent and warrant that your use of the Services will comply with all applicable laws, ordinances, rules, regulations, directives and guidelines applicable to your use of the Services (collectively “Laws”) including, without limitation, all data privacy and processing Laws.

7.2 Guest Information

Each Customer that uses Hoick’s guest-facing Services represents and warrants to Hoick that it has authority from its guests to provide to Hoick the names, email addresses, telephone numbers and other information of such guests in order to provide those Services. Hoick may republish or distribute guest-provided information (excluding Customer Confidential Information) to third parties in accordance with the Terms of Service and the Privacy Policy.

7.3

Hoick and its suppliers provide the services “as-is” and “as available” and disclaim all warranties of any kind not provided here, whether express, implied, or statutory.

8. Limitations of Liability

8.1

Without limiting claims arising from your breach of Hoick’s intellectual property rights in the Services, in no event will Hoick or you be liable for any indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data, or other intangible losses that result from the use of, inability to use, or unavailability of the Services.

8.2

Under no circumstances will Hoick be responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of the Services or your Hoick account, or the information contained therein.

8.3

Without limiting Customer’s obligation to pay fees for Services performed or claims arising from your breach of Hoick’s intellectual property rights in the Services, to the maximum extent permitted by applicable law, the total liability of Hoick pursuant to this Agreement is limited to two times the fees paid or payable by Customer to Hoick within the preceding twelve (12) months.

8.4

This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Hoick or you has been advised of the possibility of such damage. The foregoing limitations of liability will apply to the fullest extent permitted by law in the applicable jurisdiction.

9. Amendment of These Terms

Hoick may amend this Agreement from time to time by posting an amended version at its website and providing you notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”). Hoick reserves the right to modify, suspend, or discontinue the Services upon notice to Customer. Hoick shall not be liable should Hoick exercise its right to modify, suspend, or discontinue the Services. If, however, Hoick discontinues the Services, Hoick will refund to Customer any subscription fees Customer has prepaid for the period after which Hoick has discontinued the Services.

10. Miscellaneous

This Agreement will be governed by the laws of Hong Kong without giving effect to any conflicts of laws principles that may require the application of the law of a different jurisdiction. For any dispute or proceeding arising from or relating to this Agreement, you agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts in Hong Kong. The failure of Hoick to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. These terms, the Privacy Policy and the Service Order Form (if any) constitute the entire agreement between you and Hoick and govern your use of the Services, superseding any prior agreements between you and Hoick (including, but not limited to, any prior versions of these terms).