|HILTON FAMILY 2017 LEISURE MARKET RATE PROGRAM FOR
|STANDARD TERMS AND CONDITIONS
TO 2017 LEISURE MARKET RATE AGREEMENT FOR
- All terms not defined herein shall have the meaning set forth in the respective 2017 Leisure Market Rate Agreement for Wholesalers/Tour Operators (collectively, with these Standard Terms and Conditions and the 2017 Tariff, the “Leisure Market Agreement”).
- Wholesaler shall procure and maintain at its expense during the term hereof policies of insurance of the types and in amounts no less than the minimum coverages specified below, with insurance companies, and upon terms, satisfactory to Hilton. Certificates of the issuance of each and every such policy shall be delivered to Hilton Worldwide, Attn: Risk Management,7930 Jones Branch Drive, Suite 1100, McLean, VA 22102,
upon the execution of the Leisure Market Agreement
and extensions or replacement certificates shall be timely delivered
(no less than ten (10) days prior to expiration of current certification)
to Hilton during the term hereof. Each such insurance policy
(except Workers' Compensation and Employer's Liability)
shall name Hilton, its hotels and each of their owners, partners,
subsidiaries, affiliates, franchisees, and each of such persons’
or entities’ officers, directors, agents, contractors, subcontractors,
guests, residents, visitors, licensees, invitees, permitees and employees
(collectively referred to as the “Indemnitees”) and each of them, as additional insureds and shall by specific endorsement acknowledge the insuring of the contractual liabilities assumed by Wholesaler in the Leisure Market Agreement and these Terms and Conditions and shall not be cancelable, terminable or subject to material change without thirty (30) days' prior written notice to Hilton. Such insurance shall be considered primary with respect to any similar insurance carried by Indemnitees.
- Commercial General Liability (including contractual and products liability): $1,000,000 per occurrence
- Workers' Compensation and Employer's Liability:
||$1,000,000 per accident
$1,000,000 disease policy limit
$1,000,000 disease per employee
- Automobile Liability (covering all owned, non-owned, leased and hired vehicles): $1,000,000 per accident
- To the extent permitted by law, you agree to protect, indemnify, defend and hold harmless Hilton, the Participating Hilton Family Hotels and their respective owners, employees and agents against and from all claims, losses or damages to persons or property, governmental charges or fines, and costs (including reasonable attorney’s fees), arising out of or connected with your performance of the Leisure Market Agreement.
- The Leisure Market Agreement shall be governed by and construed in accordance with the internal laws of the State of California, excluding any laws regarding the choice or conflict of laws.
- BY EXECUTING THE LEISURE MARKET AGREEMENT, WHOLESALER IS SIGNIFYING ITS AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE 2017 TARIFF TO THE SAME EXTENT AS IF IT HAD PERSONALLY SIGNED THIS AGREEMENT AND THE 2017 TARIFF.
- Wholesaler represents and warrants that there are no agreements or arrangements, whether written or oral, that would be breached by Wholesaler upon execution of the Leisure Market Agreement. Wholesaler shall promptly provide Hilton with all information reasonably requested by Hilton or its Compliance Committee with respect to Wholesaler and its affiliates and subsidiaries including their respective officers, directors or shareholders. The information requested may include but not necessarily be limited to financial condition, personal and family background, litigation, indictment, criminal proceedings and the like in which any of the aforementioned may have been involved (collectively, the “Requested Information”), in order for Hilton to determine that the Requested Information does not disclose any fact which might adversely affect, in any manner, any licenses or permits held by Hilton or its affiliates or the current stature of Hilton or its affiliates with any commission, board or similar regulatory agency.
Wholesaler further represents and warrants to Hilton that to Wholesaler’s actual or constructive knowledge: (1) neither Wholesaler (including its directors and officers), nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders or, to Wholesaler’s knowledge, the funding sources for any of the foregoing either is identified on the list of “Specially Designated Nationals or Blocked Persons” (“SDNs”) maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC); (2) neither Wholesaler nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders is directly or indirectly owned or controlled by the government of any country that is subject to an embargo or economic or trade sanctions by the United States government, (3) neither Wholesaler nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of nonpublicly traded shareholders is acting on behalf of a government of any country that is subject to such an embargo, and (4) neither Wholesaler nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders is involved in business arrangements or otherwise engaged in transactions with countries subject to economic or trade sanctions imposed by the United States government. Wholesaler agrees that it will notify Hilton in writing immediately upon the occurrence of any event which would render the foregoing representations and warranties of this provision incorrect. Notwithstanding anything to the contrary in the Leisure Market Agreement, no transfer (including the sale, lease, assignment or transfer in any way of any direct or indirect interest in the Leisure Market Agreement or direct or indirect interest in Wholesaler) shall be made to a Specially Designated National or Blocked Person (as herein defined below) or to an entity in which a Specially Designated National or Blocked Person has an interest. For purposes of the Leisure Market Agreement, “Specially Designated National or Blocked Person” means (i) a person or entity designated by the U.S. Department of Treasury’s Office of Foreign Assets Control from time to time as a “specially designated national or blocked person” or similar status, (ii) a person or entity described in Section 1 of U.S. Executive Order 13224, issued on September 23, 2001, or (iii) a person or entity otherwise identified by government or legal authority as a person with whom Hilton is prohibited from transacting usiness. As of the Effective Date, a list of such designations and the text of the Executive Order are published under the internet website address www.ustreas.gov/offices/enforcement/ofac.
- Wholesaler shall not at any time represent that it is employed by Hilton, or that it is authorized to make any contracts, agreements or obligations on behalf of Hilton or any of its affiliates, any Hilton hotel or owners thereof, and Wholesaler shall not take any actions on behalf of Hilton or in Hilton’s name. Wholesaler hereby covenants and agrees not to use Hilton names, or any variation thereof, or the names “Hilton,” “Hampton”, “Homewood”, “Doubletree”, “Conrad”, or “Embassy” or the stylized “H” or other logo types, trademarks, service marks, trade names or other Hilton Intellectual Property now or hereafter used by Hilton, subsidiaries, Hotels or their owners, and shall not use any “metatags”, “scumware”, “spyware”, search word preference, hidden text, doorway pages, other “cloaking techniques”, or any other service that results in Wholesaler being referenced in regard to Internet searches for such marks, attracts Internet users to its web sites, call centers or other services, or otherwise use any such marks, directly or indirectly, in any way in connection with any of Wholesaler’s business or operations, without the prior written approval of Hilton and, in the event of such approval, only in the manner and at such times as shall be prescribed in such approval. Wholesaler shall not use any e-mail or search engine marketing to promote Hilton or Wholesaler’s participation in the 2017 Leisure Market Rate Program. Wholesaler shall not claim to be Hilton in any pay-for-placement and other search engines. Wholesaler agrees to comply with the requirements of the CAN-SPAM Act of 2003 (the “Act”) in its distribution of email that contains messaging regarding Hilton Family hotels. Subject to the foregoing, Hilton hereby gives Wholesaler the right, solely for the purposes of marketing and obtaining reservations for Hotels pursuant to the Leisure Market Agreement, to use Hilton names, subject to Hilton’s right to disapprove particular uses at any time and from time to time, including, without limitation, approval of any and all advertising referencing such marks.
- Wholesaler acknowledges that it may obtain or develop information or materials (including without limitation the Leisure Market Agreement) from Hilton and/or others, without warranty or representation of any kind, which Hilton considers or which Wholesaler should consider proprietary and confidential to or of independent economic value to Hilton, actual or potential, regardless whether otherwise protectible under any law, and regardless of protection, markings or dissemination (“Confidential Information”). Wholesaler covenants and agrees that all Confidential Information will be considered, deemed and protected as proprietary and confidential to Hilton. Wholesaler will not disclose or permit inevitable disclosure of Confidential Information by any Wholesaler Party (including without limitation storage or transmission in any electronic medium now known or hereafter developed), it will not allow or permit any Confidential Information to be corrupted or infected or misappropriated or used except and solely to Hilton’s right, title, interest and benefit, and Wholesaler shall execute such further instruments as Hilton may require to carry out these covenants and agreements. Both parties agree that the restrictions herein are mutually agreed to be and shall be deemed to constitute reasonable efforts to maintain its confidentiality.
- Wholesaler shall comply with all applicable federal, state and local laws, codes, regulations, ordinances and rules (including but not limited to federal anti-terrorism laws and regulations including all provisions of the Patriot Act and regulations of the Department of Homeland Security and the Office of Foreign Assets Control and the provisions of 29 CFR Part 470) with respect to the work or services it performs promulgated by any and all federal, state, municipal or other legislative bodies, courts or agencies having jurisdiction over the business of Wholesaler, over services of the nature of the services you provide, including but not limited to, if applicable, the uniform computer information transactions act (“UCITA”).
- Wholesaler may not assign or encumber the Leisure Market Agreement or any rights of Wholesaler hereunder nor delegate or subcontract any performance or other obligations hereunder without the prior written consent of Hilton and compliance with all other terms and conditions herein. Hilton may assign the Leisure Market Agreement or any rights, obligations or benefits hereunder to any party, including without limitation its owners or successors, whether now in being or formed at some future time. The Leisure Market Agreement is by and between Hilton and Wholesaler and
there are no third party beneficiaries to the Leisure Market Agreement. Subject to the foregoing, the Leisure Market Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
- Hilton may terminate the Leisure Market Agreement at any time, without cause, by sending notice to Wholesaler as provided below. Notwithstanding any such termination of the Leisure Market Agreement, the rights acquired or obligations incurred by the parties thereto prior to such termination shall not be affected and Wholesaler shall remain liable for any and all damages, consequential and otherwise, sustained by Hilton by reason of such ermination or by reason of Wholesaler’s default or breach and Hilton shall have and retain unimpaired all pertinent rights and remedies, whether at law or in equity. Hilton shall be entitled to recover its reasonable attorney’s fees, costs and disbursements in any action brought to enforce or interpret the Leisure Market Agreement. The right of Hilton to require strict performance and observation of any obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
- Wholesaler acknowledges and agrees that Hilton’s remedy at law for breach of Wholesaler’s obligations hereunder would be inadequate, and agrees and consents that temporary and permanent injunctive relief and/or specific performance may be granted in any proceeding which may be brought to enforce the Leisure Market Agreement without the necessity of proof of actual damage, in addition to all other remedies provided hereunder or available at law.
- All notices, requests, demands and other communications under the Leisure Market Agreement shall be in writing and shall be deemed to have been given on the date of service if (a) telefaxed (transmission receipt received) to the telefax numbers of the parties listed below, (b) served personally on the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, and properly addressed to the party at the address set forth below, or to any other address that a party may designate by written notice to the other party, or (c) sent by electronic mail.
- Hilton notice information is as set forth in the respective Leisure Market Agreement with a copy of legal notices to be provided to the following:
7930 Jones Branch Drive, Suite 1100, McLean, VA 22102
- Wholesaler notice information is as set forth in the respective Leisure Market Agreement.
- Wholesaler shall not make or issue any public statement or announcement regarding the fact or the content of the Leisure Market Agreement, except, as Hilton shall agree in writing to such statement or announcement prior to its issuance. Wholesaler agrees that, except as may be required by applicable law or regulation, it shall not use in advertising, publicity or otherwise, any information concerning the Leisure Market Agreement, the trademark, service marks, trade names or company names of Hilton, or disclose the terms and conditions of the Leisure Market Agreement without prior written consent of Hilton.
- Hilton may modify any of the terms and conditions contained in these Standard Terms and Conditions, at any time in its sole discretion. If any modification is unacceptable to Wholesaler, Wholesaler’s only recourse is to terminate this Agreement. Wholesaler acknowledges and agrees that it is Wholesaler’s responsibility to periodically review such terms and conditions. Wholesaler’s continued participation in the 2017 Leisure Market Rate Program following modification will constitute binding acceptance of the modification.
- Hilton may modify any of the terms and conditions contained in these Standard Terms and Conditions at any time in its sole discretion. Notification to Wholesaler of any change by email or by posting a notice on www.hiltonfamilyleisurerates.com , at Hilton’s sole option, shall be considered sufficient notice to Wholesaler of such modification. If any modification is unacceptable to Wholesaler, Wholesaler’s only recourse is to terminate this Agreement. Wholesaler’s continued participation in the 2017 Leisure Market Rate Program following notice of a modification will
constitute binding acceptance of the modification.
- Neither party hereto shall be deemed to be the drafter of the Leisure Market Agreement and, if the Leisure Market Agreement is construed in any court or arbitration proceeding, said court or arbitrator shall not construe the Leisure Market Agreement or any provision hereof against either party as the drafter hereof. Wholesaler is solely and directly responsible for prompt payment of any and all international, national, federal, state and local excise, sales, use, value-added, duty, tariff and all other taxes or charges imposed on any party related in any way to the Leisure Market Agreement or the services, now known or unknown and now imposed or hereafter imposed and hereby indemnifies and holds harmless the Indemnitees from any such impositions. Sections I, V, VI, and IX of the Leisure Market Agreement and any other provisions hereof which expressly provide that they survive expiration or termination or which must survive expiration or termination in order to be fully operative shall survive the expiration or termination of the Leisure Market Agreement. The parties agree that subject to the exclusion of intellectual property matters as set forth below, any dispute in any way arising out of or relating to this contract will be resolved by arbitration before JAMS or American Arbitration Association in Los Angeles, California; provided, however, a dispute relating to patents, trademarks, trade dress, copyrights, trade secrets, false advertising, false representation, unfair competition and/or infringement of intellectual property rights shall not be subject to this provision. The parties further agree that in any arbitration proceeding they may conduct reasonable discovery pursuant to the arbitration rules, and that any arbitration award will be enforceable in state or federal court. If any term of this Leisure Market Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. It is expressly agreed that the terms of this Leisure Market Agreement shall supersede the terms in any purchase order or other non-Hilton document and no terms included in any such purchase order or other non- Hilton document shall apply to any services purchased or ordered. This Leisure Market Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of you and Hilton.
I have read and accept the terms and conditions