RoomKeyPMS Standard Terms and Conditions

By executing a RoomKeyPMS Customer Order or other ordering document, or by placing an order for an Ancillary Product and Service by phone or email (each an “Order”), the customer placing such Order (“Customer”) acknowledges and agrees that each such Order incorporates by reference these RoomKeyPMS Standard Terms and Conditions (the “Terms”). Further, as set forth below, these Terms may be binding on Customer upon renewal of any prior subscription as set forth below. In any such event, these Terms govern Customer’s purchase, receipt and use of the Products and Services (defined below) set forth on the Order or otherwise provided to Customer by or through RK-PMS Technologies Corp., a company organized and existing under the laws of the Province of British Columbia, and doing business as RoomKeyPMS (“RoomKeyPMS”), and that these Terms together with the Order constitute a binding contract between Customer and RoomKeyPMS.

If  Customer executes more than one Order, each such Order, together with these Terms, will constitute a separate and independent agreement between Customer and RoomKeyPMS, each incorporating these Terms and the terms and conditions set forth in the applicable Order.

  1. Definitions.
    1. “Agreement” means these Terms together with the applicable Order and each other schedule, addendum or policy referenced herein or therein.
    2. “Ancillary Products and Services” means RoomKeyPMS’s Rate Shopper Services, eRes/Internet Booking Engine, and select interfaces for API, POS, Text Messaging, PBX, Call Accounting, Voicemail, Movie, Internet, ID Scanners, and Accounting. This does not include digital key cards or Vertical Booking product items.
    3. “Documentation” means the then current RoomKeyPMS product documentation relating to the operation and use of the Products and Services published by RoomKeyPMS at http://support.roomkeypms.com/ or its successor website. Documentation includes technical program or interface documentation, user manuals, operating instructions, and release notes. With respect to Third-Party Materials, “Documentation” means any of the foregoing maintained by the applicable Third-Party Licensor and which may be provided to Customer by RoomKeyPMS and/or be available from such Third-Party Licensor’s website or accessed from within the Third-Party Materials themselves.
    4. “Effective Date” means the effective date set forth in the Order, or if not specified, the date the Order was signed by Customer, or if not dated, the date the RoomKeyPMS Hotel PMS Software were first made available to Customer as recorded in the books and records of RoomKeyPMS. Where Customer has a month-to-month subscription for the RoomKeyPMS Hotel PMS Software (e.g., where an original one year order term has lapsed), Effective Date means the earlier of (i) the effective date set forth in a notice to Customer from RoomKeyPMS that Customer’s continued use of the RoomKeyPMS Hotel PMS Software after the date specified in such notice will constitute its acceptance of these Terms and (ii) the effective date set forth in an Order entered into by Customer for any Ancillary Products and Services.
    5. “Hardware” means any physical computer devices or equipment provided in any form by RoomKeyPMS to Customer pursuant to the terms of the Order. If there is no Order (e.g., where Customer has accepted these Terms in connection with a renewal), Hardware means the physical equipment provided by RoomKeyPMS to Customer as of the date of such renewal. Hardware includes, as applicable, and without limitation, all associated Documentation.
    6. “Initial Term” means the initial term of the Agreement as set forth in the Order. If no initial term is designated on the Order, the initial term will be three (3) years from the Effective Date. If there is no Order (e.g., where Customer has accepted these Terms by continuing to access the RoomKeyPMS Hotel PMS Software following a written notice like that described in clause d.(i) above), Initial Term means the one (1) year period beginning on the Effective Date. Notwithstanding the foregoing, any subsequent Orders for Products and Services entered into after the date of an initial Order for the RoomKeyPMS Hotel PMS Software will have an Initial Term that expires upon the expiration of the then current Initial Term or renewal Term (i.e., subsequent Orders will be coterminous with such original Order so that all such Orders expire or renew on the same schedule as Customer’s subscription for the RoomKeyPMS Hotel PMS Software itself). Notwithstanding the foregoing, however, if Customer executes an Order for additional Products and Services while subject to a month-to-month subscription for the RoomKeyPMS Hotel PMS Software, Customer’s subscription to the RoomKeyPMS Hotel PMS Software will be extended for the duration of the Initial Term set forth in such new Order and thereafter its subscription to all such Products and Services (including the RoomKeyPMS Hotel PMS Software) will renew on an annual basis as set forth in Section 3.a. below. For example, if Customer has a month-to-month subscription for the RoomKeyPMS Hotel PMS Software and enters into an Order with an Initial Term of three (3) years, Customer’s subscription for the RoomKeyPMS Hotel PMS Software will be extended to a three (3) year term.
    7. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. Malicious Code does not include the ability of RoomKeyPMS to remotely access, monitor, update, suspend operation of or disable Customer’s access to the Products and Services.
    8. “Products and Services” means the product and services to be provided by RoomKeyPMS to Customer pursuant to the terms of the Order. If there is no Order (e.g., where Customer has accepted these Terms in connection with a renewal), Products and Services means the products and services being provided by RoomKeyPMS to Customer as of the date of such renewal. Products and Services include, as applicable, and without limitation, all associated Documentation. Products and Services include the RoomKeyPMS Hotel PMS Software itself together with any Ancillary Products and Services Customer requests pursuant to an Order. Products and Services also include Third Party Materials.
    9. “Recurring Service Fees” means all monthly and other recurring service and support fees (priced on a per room basis) payable by Customer to RoomKeyPMS, together with any taxes accruing with respect thereto for which Customer is responsible, pursuant to the terms of the Agreement.
    10. “RoomKeyPMS Hotel PMS Software” means RoomKeyPMS’ proprietary cloud-based hotel property management Software.
    11. “Software” means all computer software that is included in or delivered or made available to Customer as part of the Products and Services, and includes software provided on a software-as-a-service basis or via the cloud as well as any software that may be installed locally on Customer’s hardware, as applicable. Software may also include software proprietary to RoomKeyPMS or that is distributed by and proprietary to a third party.
    12. “Third Party Licensor” means, with respect to any Third Party Materials, the manufacturer, supplier or publisher of such Third Party Materials.
    13. “Third Party Materials” means any hardware, software or other materials not proprietary to RoomKeyPMS that constitute a part of or are incorporated in any part of the Products and Services. Third Party Materials include third party hardware, software and other materials that RoomKeyPMS resells to Customer.
  2. Products and Services. RoomKeyPMS will provide the Products and Services to Customer in accordance with the terms of this Agreement and the applicable Documentation.
  3. Term and Termination.
    1. Renewal. Unless terminated in accordance with Section 3.b below or either party provides notice of non-renewal not less than 90 days prior to expiration of the then current term, upon expiration of the Initial Term, and annually thereafter, the Agreement will automatically renew for additional one year periods (except in the case where Customer is on a month-to-month subscription, in which case renewal terms will be on a month-to-month basis, unless the term is extended by execution of a new Order as set forth in Section 1.e. above or upon Customer’s continued use of the RoomKeyPMS Hotel PMS Software after receipt of notice that such continued use will constitute Customer’s agreement to an extension of the Customer’s subscription to an annual renewing subscription). The Initial Term, together with all such renewal terms, is referred to herein as the “Term.”
    2. Termination.
      1. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party if such material breach remains uncured sixty (60) days after the date of written notice thereof from the non-breaching party. Notwithstanding the foregoing, RoomKeyPMS may suspend Customer’s access to the Products and or Services and/or terminate this Agreement immediately if Customer fails to pay any amount due hereunder when due and such amount remains unpaid ten (10) days following written notice thereof from RoomKeyPMS.
      2. Either party may terminate this Agreement immediately in the event the other party ceases to function as a business entity, or is declared insolvent, or becomes the subject of an involuntary petition in bankruptcy, which petition is not stayed or dismissed within sixty (60) days, or makes an assignment for the benefit of all or substantially all of its creditors.
    3. Effect of Termination. Termination or expiration of this Agreement for any reason shall not release either party from any liability which has already accrued as of the effective date of such termination or expiration, and shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any remedies or claims, whether for damages or otherwise, which a party may have hereunder, at law, equity or otherwise or which may arise out of or in connection with such termination.
    4. Termination of Ancillary Products and Services. Notwithstanding the foregoing, Customer may terminate its subscription to any Ancillary Product and Service without terminating this Agreement or being subject to Section 3.b.iii above upon not less than 90 days prior notice to RoomKeyPMS (which may be phone, email or in writing). Customer will pay to RoomKeyPMS all fees that have accrued and remain unpaid through the effective date of termination. Customer will pay an amount equal to the Hardware provided. Such amount will be invoiced in full on Customer’s next invoice following receipt of notice of termination. For the avoidance of doubt, this clause d. does not apply to Third Party Materials specifically listed and priced separately on an Order.
  4. Fees and Payment Terms.
    1. Fees. Customer will pay the amounts set forth in the Order for the Products and Services (or if there is no Order, the amounts payable under Customer’s prior agreement with RoomKeyPMS). One time fees are billed thirty days from the Effective Date. Recurring Service Fees (priced on a per room basis) are billed within the first thirty days from the Effective Date and thereafter quarterly or monthly in advance for the duration of the term of the Agreement.  All Hardware is non-refundable.
    2. Modification. RoomKeyPMS may at any time following the Initial Term, upon not less than 30 days’ prior notice to Customer, modify the fees payable under the Agreement.
    3. Third Party Materials. Prices for Third Party Materials are subject to change without prior notice.
    4. Labor. Labor and support rates are subject to change without notice.
    5. Payment Terms. If Customer has provided a designated form of payment (e.g., a deposit account pursuant to an ACH authorization or credit or debit card), RoomKeyPMS will automatically draft or charge such form of payment for all amounts due under the Agreement, when and as such amounts come due (which are generally billed in advance of the term to which they relate). If Customer has not provided any such form of payment, RoomKeyPMS will invoice Customer for such amounts, and such amounts will be due within thirty (30) days of the date of each such invoice.
    6. Late Payment. Amounts not paid when due in accordance with this Section 4 may incur a late fee in an amount up to the lesser of 1.5% per month or the maximum amount allowed by law. In the event an amount due hereunder is not timely paid, RoomKeyPMS may also at its option and without penalty hereunder discontinue providing the Products and Services. Reconnection fees following any such discontinuance of service will apply at a rate of $300.00 per property.
    7. Taxes. Except for taxes accruing with respect to the net income of RoomKeyPMS, Customer will be responsible for any and all applicable sales, use, excise, or other taxes, whether federal, state, provincial or local, however designated, which are levied or imposed with respect to Customer’s purchase of the Products and Services, and whether or not set forth on the applicable Order.
  5. Additional Pricing. Customer shall not be entitled to any Ancillary Product or Service merely because the Ancillary Product or Service is not specifically called out in the Agreement or applicable Order. RoomKeyPMS may change the price of any Ancillary Product and Service at any time at RoomKeyPMS’s sole discretion. Such price as in effect at the time of Customer’s Order will be the effective price unless RoomKeyPMS has agreed otherwise in a written Order.
  6. Support Services. RoomKeyPMS will provide support for the Products and Services to Customer in accordance with its Support Policy. In the event that Customer chooses not to use RoomKeyPMS Payments, Customer will not be able to receive (i) RoomKeyPMS’s software upgrades (i.e. new versions); (ii) support on any other payment processing interfaces; or (iii) service on non-integrated payment solutions.  Support for Third Party Materials may depend on the support policies of and availability of support from the applicable OEM. RoomKeyPMS will coordinate on Customer’s behalf with each applicable OEM where support services are needed with respect to any Third-Party Materials.
  7. Kick-off Training Services.Customer is entitled to a kick-off training. Kick-off training must be completed within three weeks from the original kick-off call. Kick-off training will be scheduled with Customer in advance. Rescheduling more than twice will incur a rescheduling fee of $140, in addition to any cost to change flight details. Failure to attend kick-off training will incur a fee of $140. Customer must be live within two weeks of kick-off training completion, or retraining fees could apply at the same cost as the original kick-off training or $100 per hour, whichever is greater. All on-site training requires Customer to provide lodging for RoomKeyPMS’s representative at no charge and reimburse for reasonable travel expenses (including without limitation flight or mileage and meals).
  8. Compliance with Laws and Regulations. Customer agrees to abide by these Terms and all applicable laws and regulations, including but not limited to Title III of the Americans with Disabilities Act (“ADA”) and New York’s state and city level Human Rights Act, and California’s Unruh Civil Rights Act and Consumer Privacy Act. Customer agrees not to transfer, use or export the services in violation of any laws or regulations of any government or governmental agency. In the event that Customer chooses to use the email and/or the SMS features, Customer represents and warrants that Customer has a current relationship with each person to whom an email or text message is to be sent. Customer is solely responsible for ensuring that the email and/or SMS feature(s) are utilized in a manner that complies with local, state, and federal laws, rules and regulations.  This includes, but is not limited to, compliance with applicable email and telemarketing laws such as the CAN-SPAM Act and Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the EU ePrivacy Regulation, and comparable state laws. Moreover, Customer represents and warrants that each person to whom an email and/or text message is to be sent has specifically granted Customer permission to do so by whatever technology Customer chooses; and opt-outs are provided pursuant to applicable law, rule or regulation.  Customer is responsible for the content and will be identified as the sender of each email and/or text message sent on Customer’s behalf. Customer acknowledges that Customer is responsible for obtaining any and all permissions required to use the email and/or SMS features.Customer is solely responsible for compliance with applicable PCI-DSS requirements; RoomKeyPMS has no obligation to assist with PCI-DSS requirements in any way. Any assistance provided by RoomKeyPMS, or by RoomKeyPMS’s employees, contractors, agents, representatives or other related persons, at the request of Customer, is provided without warranty or liability.
  9. DISCLAIMER OF WARRANTIES.
    1. For the avoidance of doubt, RoomKeyPMS does not guarantee that its Products and Services will operate continuously without error. In particular, RoomKeyPMS’s Products and Services include interfaces with hundreds of third-party products and services, and the availability of these interfaces and related features are routinely affected by circumstances outside RoomKeyPMS’s control. In consideration of the foregoing, none of the following will constitute a material breach by RoomKeyPMS of its obligations hereunder: intermittent downtime (i.e. downtime not exceeding 24 continuous hours), downtime resulting from scheduled or emergency maintenance, downtime arising as a result of circumstances outside the control of RoomKeyPMS, or the loss of connectivity between the RoomKeyPMS Products and Services and any third party product or service. Customer understands and acknowledges that RoomKeyPMS is not the manufacturer, supplier or publisher of any Third-Party Materials offered under this Agreement, and to the extent it is providing any such Third-Party Materials as part of the Products and Services, it is doing so in a reseller capacity. As such, RoomKeyPMS will pass through to Customer, to the extent available, any such Third-Party Licensor’s warranties associated with the Third-Party Materials purchased from or through RoomKeyPMS, but RoomKeyPMS does not provide any additional warranties with respect to such Third-Party Materials. Except for any such warranties that may be passed through by RoomKeyPMS from such Third-Party Licensors, ALL SUCH THIRD-PARTY MATERIALS ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND BY ROOMKEYPMS, EXPRESS OR IMPLIED.
    2. EXCEPT FOR THE SUPPORT SERVICES, WHICH ROOMKEYPMS WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ROOMKEYPMS EXPRESSLY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, WHETHER WRITTEN OR ORAL, INCLUDING WITH RESPECT TO THE PRODUCTS AND SERVICES, AND HEREBY DISCLAIMS AND EXCLUDES ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING (BUT NOT LIMITED TO) ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR SATISFACTORY QUALITY, WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN TRADE, OR THAT THE PRODUCTS AND SERVICES WILL BE ERROR-FREE OR SECURE, OR OPERATE OR BE AVAILABLE 100% OF THE TIME. ROOMKEYPMS FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATED TO ANY CONFIGURATION, REPAIR, UPDATE, INSTALLATION OR OTHER WORK DONE ON THE CUSTOMER’S PREMISES BY AN EMPLOYEE, CONTRACTOR, AGENT, OR OTHER THIRD PARTY OF OR UNDER CONTRACT WITH ROOMKEYPMS.
  10. IMITATION OF LIABILITY. IN NO EVENT WILL ROOMKEYPMS OR ANY OF ITS LICENSORS BE LIABLE FOR LOST PROFITS, REVENUE, OR BOOKINGS, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY SPECIAL, CONSEQUENTIAL, RELIANCE, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER ROOMKEYPMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. ROOMKEYPMS’ LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF RECURRING SERVICE FEES RECEIVED BY ROOMKEYPMS FROM CUSTOMER UNDER THIS AGREEMENT WITHIN THE SIX (6) MONTHS PRECEDING THE ASSERTION OF ANY CLAIM. IN NO EVENT WILL ROOMKEYPMS BE RESPONSIBLE FOR ANY DAMAGES OR COSTS INCURRED OR THIRD PARTY CLAIMS ARISING AS A RESULT OF ANY MISUSE OF THE PRODUCTS AND SERVICES (WHICH FOR THE AVOIDANCE OF DOUBT INCLUDES ANY SUCH USE CONTRARY TO THE DOCUMENTATION OR EXPRESS INSTRUCTIONS OF ROOMKEYPMS). FURTHER, SOME ROOMKEYPMS PRODUCTS AND SERVICES PROVIDE CONNECTIVITY AND INTEROPERABILITY WITH THIRD PARTY PRODUCTS AND SERVICES. ROOMKEYPMS IS NOT RESPONSIBLE FOR THE OPERATION OF ANY SUCH THIRD PARTY PRODUCTS AND SERVICES AND CUSTOMER’S USE OF ANY SUCH THIRD PARTY PRODUCTS AND SERVICES IS AT CUSTOMER’S SOLE RISK. SUCH THIRD PARTY OPERATORS MAY MAKE MODIFICATIONS TO THEIR PRODUCTS AND SERVICES OR OTHERWISE EXPERIENCE ERRORS THAT MAY IMPAIR THE CONNECTIVITY AND/OR INTEROPERATBILITY OF ROOMKEYPMS’ PRODUCTS AND SERVICES WITH SUCH THIRD PARTY’S PRODUCTS AND SERVICES AND/OR AFFECT THE FUNCTIONALITY OF OUR PRODUCTS AND SERVICES GENERALLY. ROOMKEYPMS DOES NOT GUARANTEE THAT ANY SUCH CONNECTIVITY OR INTEROPERABILITY WITH ANY SUCH THIRD PARTY’S PRODUCTS AND SERVICES WILL BE AVAILABLE 100% OF THE TIME OR ERROR FREE OR THAT ANY SUCH THIRD PARTY WILL CONTINUE TO SUPPORT THE CONNECTIVITY AND INTEROPERABILITY OF ITS PRODUCTS AND SERVICES WITH THOSE OF ROOMKEYPMS. FURTHER, ROOMKEYPMS DISCLAIMS ANY RESPONSIBILITY FOR ANY ERRORS OR LOSS OF FUNCTIONALITY, CONNECTIVITY OR INTEROPERABILITY RESULTING FROM THE ACTIONS OR OMISSIONS OF ANY SUCH THIRD PARTIES.
  11. Confidentiality.
    1. The parties expressly acknowledge that in the course of their performance, they may learn, view or have access to certain confidential and proprietary information of the other party (“Confidential Information”). Each party shall (i) not disclose, directly or indirectly to any third party any portion of the Confidential Information without the prior written consent of the disclosing party, (ii) not use or exploit the Confidential Information for any purpose other than as required in the performance of this Agreement, and (iii) take appropriate action to protect the confidentiality of the Confidential Information received hereunder, utilizing at least the same standard of care it uses to protect its own Confidential Information, but in no event less than a reasonable standard of care. A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the receiving party, (ii) was in the receiving party’s lawful possession prior to the disclosure, or (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure. If the receiving party is required to disclose Confidential Information of the other party to satisfy any legal requirement, the receiving party may disclose the Confidential Information provided that the receiving party gives the disclosing party reasonable prior notice to contest such order (to the extent legally permitted to do so) and that the receiving party discloses only such portions of the Confidential Information as required by such legal requirement.
    2. This Section 11 will not be deemed to prohibit RoomKeyPMS from collecting non-personalized, aggregate usage data relating to the Products and Services and using and further commercializing and distributing such usage data.
    3. Confidential Information RoomKeyPMS may collect or receive from Customer and its users is further subject to the RoomKeyPMS Privacy Policy, a copy of which is available at https://roomkeypms.com/privacy-policy/ or its successor website.
    4. RoomKeyPMS will retain Customer’s data in the RoomKeyPMS Hotel PMS Software for a period of 90 days following termination to provide Customer with an opportunity to export or download such data as provided in the Documentation. After such 90-day period, RoomKeyPMS will have no obligation to maintain or provide any such data, and thereafter may delete or destroy all copies of such data in its systems or otherwise in its possession or control, subject to applicable law.
  12. Malicious Code. Where applicable and to the extent available, RoomKeyPMS uses commercially available anti-malicious code software intended to keep its systems and the Products and Services free of Malicious Code. Customer acknowledges that no such software is perfect, and in particular, it is difficult to protect against Malicious Code that has not yet been detected and countered by commercial anti-malicious code software providers. Other than using commercially reasonable efforts to keep such anti-malicious code software up to date on its systems, RoomKeyPMS assumes no obligation or liability whatsoever with respect to any Malicious Code.
  13. Intellectual Property.Customer acknowledges that, notwithstanding any other provisions of this Agreement and/or references to any “purchase” or “sale” of any Products and Services in this Agreement or elsewhere, the title to, and ownership of, the Products and Services, inclusive of any Software and Documentation included therein (collectively, the “Proprietary Materials”), will at all times remain with RoomKeyPMS and its third party licensors. Customer is hereby granted for the duration of the term of the Agreement a non-exclusive, non-transferrable, and non-sublicensable license to use the Proprietary Materials only as delivered by RoomKeyPMS and in accordance with the terms of this Agreement. RoomKeyPMS, on behalf of itself and its third party licensors, retains all copyright, patent, trademark, trade secret and other intellectual property rights in and to the Proprietary Materials.  Customer acknowledges that the Proprietary Materials, all copies of the Proprietary Materials, any derivative works, compilations, and collective works of the Proprietary Materials, and any know-how and trade secrets related to the Proprietary Materials, are the sole and exclusive property of RoomKeyPMS and its licensors and contain such parties’ confidential and proprietary materials.  Customer will not attempt to reverse engineer, disassemble, or decompile any portion of the Proprietary Materials. Portions of the Proprietary Materials may utilize or include Third Party Materials.  Additional acknowledgements, licensing terms, proprietary notices and disclaimers for such Third Party Materials may be contained in the Documentation for such Third Party Materials, attached to an Order, accessed from within the Third Party Materials themselves, and/or referenced on the applicable Third Party Licensor’s website, and use of such Third Party Materials will be governed by the terms of this Agreement together with any such additional acknowledgements, licensing terms, notices and disclaimers.
  14. Miscellaneous
    1. Access to Products and Services. Customer is solely responsible for the cost of providing computers, Internet access, and any third-party software necessary for Customer to access the Products and Services.
    2. Assignment. This Agreement is not assignable by Customer without RoomKeyPMS’ prior written authorization and payment of a transfer fee in the amount of $500.00. Customer will provide not less than 30 days prior written notice of any request to transfer this Agreement. Any transfer by Customer will be further conditioned on the transferee executing a new agreement directly with RoomKeyPMS, to begin effective as of the date of transfer. RoomKeyPMS may freely assign its rights and obligations under this Agreement, provided RoomKeyPMS will remain responsible for the performance of any subcontractor to which RoomKeyPMS has delegated any of its obligations hereunder.
    3. Independent Contractor. RoomKeyPMS is an independent contractor and nothing contained in this Agreement will be construed to create the relationship of employer/employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
    4. Choice of Law & Venue. This Agreement shall be governed by the laws of the Province of British Columbia and Canadian federal law, without reference to its conflicts of law provisions. Any dispute arising out of or relating to this Agreement will be resolved exclusively by binding arbitration to be conducted in Vancouver, British Columbia in accordance with the then effective Arbitration Rules of the Canadian Arbitration Association (the “Rules”). Such matter will be heard by a single arbitrator. The arbitrator will be selected by mutual agreement of the parties, or if they cannot agree, in accordance with the Rules. The decision of the arbitration will be final and binding on the parties and may not be appealed except as the Rules may permit. Such decision may be enforced by any court of competent jurisdiction. The prevailing party in any such dispute will be entitled to recover its reasonable costs of arbitration, including reasonable attorneys’ fees and expenses. The foregoing will not prevent either party from seeking purely injunctive relief in any court of competent jurisdiction. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. FURTHER, ANY LITIGATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER CUSTOMER NOR ROOMKEYPMS MAY JOIN OR CONSOLIDATE CLAIMS IN ANY ACTION BY OR AGAINST ROOMKEYPMS OR OTHER ROOMKEYPMS CUSTOMERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
    5. Entire Agreement; Amendment; Integration; Severability. This Agreement, together with the policies and schedules incorporated herein by reference, expresses the entire understanding between the parties with respect to the subject matter hereof. RoomKeyPMS may, upon notice to Customer, change, substitute, modify, add or discontinue any aspect of or feature of the Products and Services, including but not limited to content, functionality, and means of access or use. Such changes, substitutions, modifications, additions or discontinuances shall be effective immediately upon posting on the RoomKeyPMS website. If any term or provision of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be found invalid or unenforceable, this Agreement shall be deemed to be amended only to the extent necessary to render it valid and enforceable. To the extent of any conflict between the terms set forth herein and in an Order, the terms set forth in the Order will control, but solely with respect to such Order.
    6. Third Party Beneficiary. This Agreement is solely between and for the benefit of Customer and RoomKeyPMS, and no person or entity other than the parties themselves has any rights or remedies under this Agreement.
    7. Warranties. Customer warrants that it is duly formed and existing as a legal entity and otherwise fully authorized to conduct business as a legal entity in the state in which it exists, if such party is a legal entity.
    8. Notices. For purposes of this Agreement, any notice that may or must be delivered by one party to another shall be deemed sufficient if made in writing and sent by certified mail or overnight courier to, in the case of Customer, Customer’s address as set forth on the Order, and in the case of RoomKeyPMS, as follows (or to such other address as a party may specify in the same manner): RoomKeyPMS, Unit 8152, 200-375 Water Street, Vancouver, BC V6B 0M9, Attn: Legal Notices
    9. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
    10. Language. This Agreement and all related documents have been drafted in the English language at the express request of the parties. Le present document ainsi que tous documents s’y rattachant ont été rédigés en langue anglaise à la demande expresse des parties.
    11. Security Policy for PCI. RoomKey maintains all applicable PCI controls over the payment card information stored, processed, or transmitted while in our custody.

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