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 General Definitions:
a. Accepted Currency: 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.
b. Affiliate or Affiliates: 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).
c. Aggregated Data: 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.
d. Agreement: 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.
e. Authorized Users: individuals who are employees of Customer or other end users authorized by Customer to access the Rest Solutions and Services.
f. Business Day: a day that is not a Saturday, Sunday, or public holiday in the United States.
g. Customer: the contracting business entity listed on the Order Form, including its employees, agents, and Authorized Users.
h. Customer Data: 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 (including Reservation Data), 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.
i. Confidential Information: 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.
j. Documentation: 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.
k. Fees: the amounts payable by Customer to Rest for Rest Solutions, Services, training, or other forms of service as specified under the Order Form, including (without limitation):
i. Installation Fees: Fees for professional services required to install Rest Solutions and to provide Initial Training.
ii. Subscription Fees: Ongoing Fees for Customer’s subscription to the Services, as specified under the Order Form.
l. Intellectual Property: 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.
m. Order Form: 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.
n. Party or Parties: respectively, either Rest or Customer, and as the context requires both Rest and Customer.
o. Property or Properties: each individual location or collective locations as detailed in the Property Description Schedule attached to the Order Form.
p. Rest: NoiseAware, Inc. d/b/a Rest, a Delaware corporation.
q. Rest Data: 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.
r. Rest Solutions: the Program Dashboard, Contracted Sensors, along with any other software, hardware, equipment, or system provided by Rest to Customer pursuant to a fully executed Order Form, in accordance with the terms of this MSA.
s. Services: 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 certain 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”).
1.2 Definitions Related to Services:
a. Billable Smoking Fees: the total Smoking Fees that Customer can charge in a given billing cycle (e.g.monthly). The calculation of Billable Smoking Fees is dependent on whether Customer provides Rest with Reservation Data. If Customer provides Rest with Reservation Data, Billable Smoking Fees are computed by multiplying the Smoking Fee by the number of Billable Reservations. If Customer does not provide Rest with Reservation Data, Billable Smoking Fees are computed by multiplying the number of Billable Rooms. Each individual Billable Reservation or Billable Room (as applicable) is considered a distinct "Billable Smoking Fee." i. Billable Reservation: a unique Reservation with at least one (1) documented Policy Violation shall be counted as one (1) Billable Reservation. Billable Reservations are only used as a metric for measuring Billable Smoking Fees if Customer provides Rest with Reservation Data.
ii. Billable Room: a room with at least one (1) Policy Violation documented during the 24-hour period from 12:00 PM to 11:59 AM the following day (Property local time). This time frame is used to identify and document any Policy Violations that occur during a single night of stay. For multi-night Reservations, repeated Policy Violations that occur for the same room within sixty (60) hours from the last reported Policy Violation will be treated as a single Billable Room only if Customer indicates "Repeat Offense" as the adjustment reason for the subsequent Policy Violation. The "Repeat Offense" adjustment reason only applies when a subsequent Policy Violation was caused by the same Reservation occupying the same room. Billable Rooms are only used as a metric for measuring Billable Smoking Fees if Customer does not provide Rest with Reservation Data. In the absence of Reservation Data from Customer’s Property Management System, this structure adapts the calculation of Billable Smoking Fees using the Billable Room approach to more closely align with the method applied in the Billable Reservation framework. Any attempt to reduce valid Billable Smoking Fees by misrepresenting a Policy Violation from two separate Reservations as a "Repeat Offense" will be considered a breach of this MSA.
b. Charged Smoking Fees: the actual fees Customer charges and collects from guests for Policy Violations in a given billing cycle (e.g.monthly). Charged Smoking Fees are represented by Customer as recorded in the Program Dashboard. Charged Smoking Fees may vary from the standard Smoking Fee in certain instances, depending on the Customer's discretion, specific circumstances of the violation, or negotiated settlements with guests.
c. Contracted Sensor: a hardware unit 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) the presence and usage of combustible tobacco and marijuana; vaporized nicotine and THC; and other smoke-products, and/or (ii) sound (decibel) levels, as specified under the applicable Order Form. The number of Contracted Sensors leased to Customer at each Property shall be specified in the applicable Order Form, addendum, or amendment associated therewith. Each Contracted Sensor shall be returned to Rest upon termination or expiration of the Agreement.
d. Go-Live Date: the date after substantial completion of installation Services and Initial Training when Customer is granted access to the Program Dashboard and begins receiving Policy Violations at a particular Property.
e. Policy Violation: the automated digital record generated by Rest's proprietary algorithms and displayed on the Program Dashboard to log instances of smoking activity within a designated location.
f. Program Dashboard: the web-based software interface used to manage and track Policy Violations, Smoking Fees charged, adjustments, and comments by Customer’s Authorized Users. Policy Violations are correlated with the Reservation occupying the room when the violation occurred using the Reservation Data. If Customer does not provide Rest with Reservation Data, Policy Violations will only be correlated with the room number. Each Policy Violation logged in the Program Dashboard is accompanied by a smoke report to support Customer’s imposition of a Smoking Fee to the associated Reservation.
g. Reservation: means the record within Customer’s Property Management System that corresponds to a guest's booked accommodation.
h. Reservation Data: refers to the anonymized data for each in-house Reservation, which shall include the confirmation number, arrival date, departure date, and room number of each in-house Reservation. Rest's access to the Reservation data shall be limited solely to the anonymized, non-personally identifiable information. Updated Reservation Data will be provided by Customer to Rest regularly (usually hourly) through automated reports from the Customer’s property management system or as otherwise stipulated in the Order Form.
i. Smoking Fee: refers to the standard fee Customer charges per Billable Reservation or Billable Room, as applicable pursuant to Section 1.2 (a) (Billable Smoking Fees). Customer’s minimum Smoking Fee in connection with the Services provided under this Agreement shall be specified under the Property Description Schedule and attached to the Order Form. Customer will accurately document each time a Smoking Fee is charged in the Program Dashboard. If any Policy Violation is charged less than the standard Smoking Fee, Customer will document the reason in the Program Dashboard.
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) (each, an "Accepted Method of Payment"). 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 Fee Specific Terms. Customer shall pay Rest the Fees set forth under a validly executed Order Form in accordance with the following terms and conditions, as applicable to the type of Fees specified therein:
a. Installation Fees. Rest will invoice Customer for all Installation Fees specified under the Order Form upon signature thereof.
b. Subscription Fees. Rest will begin invoicing Customer for Subscription Fees upon 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 are calculated based on the Fee (“Fee Type”) specified under the applicable Order Form and will include either: (i) “Fixed” Subscription Fees or “Variable” Subscription Fees, as described herein.
c. Fixed Subscription Fees. Fixed Subscription Fees are based on predetermined amounts to be charged for a given Service on an ongoing basis (e.g. $25 per Contracted Sensor per month). Fixed Subscription Fees are not subject to change from month to month, unless otherwise specified in the Order Form.
d. Variable Subscription Fees. Variable Subscription Fees are calculated as a percentage or a specific dollar amount per Billable Smoking Fee, as specified and agreed under the Order Form.
e. Contracted Sensor Outages. Rest acknowledges that, due to the specific needs and circumstances of Customer's business, a Contracted Sensor may occasionally be unplugged or otherwise deactivated. Customer agrees to take commercially reasonable measures to ensure that each Contracted Sensor remains activated. Any period of three (3) continuous days during which a Contracted Sensor remains disconnected shall be considered a "Contracted Sensor Outage." If Customer is invoiced based on any type of Variable Subscription Fees, Rest reserves the right (but not obligation) to impose an additional Fee of $1.00 per day for each offline Contracted Sensor during the Contracted Sensor Outage. This Fee will accrue for each separate three (3) day period of a Contracted Sensor Outage and may extend across multiple billing cycles if unresolved by Customer. This Fee is intended to fairly compensate Rest for the lost opportunity to generate Policy Violations, which could otherwise lead to the assessment of Smoking 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 Contracted Sensors and/or failure to make timely payment of the Fees agreed under the Order Form shall be considered a material breach of 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 theAgreement.
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 Sensor. 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 Contracted Sensors) in the Customer's possession immediately upon termination at Customer’s sole expense. If Customer does not return all Contracted Sensors supplied under the Agreement within thirty (30) Business Days following its termination or expiration, Customer must submit a payment of $100 per Contracted Sensor to Rest in addition to all other Fees due upon termination or expiration. Any Contracted Sensors provided to Customer 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 Contracted Sensor. 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, provided that it first gives notice to the Disclosing Party and takes all practicable steps to cooperate with the Disclosing Party, as requested, in order 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 and/or excessive noise policy violations. Additionally, Rest collects non-personally identifiable information, such as confirmation number, arrival date, departure date, and room number, to assist Customer with identifying and enforcing smoking and/or excessive noise policy violations. The Contracted Sensors are designed to not record voices or sound files. Beyond activities related to smoking detection, the Contracted Sensors are 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 of Customer's guests ("Guest PII") and agrees not to input such information into the Program Dashboard or any Rest Solutions. Customer agrees that Rest will not be liable for the inclusion of Guest PII in the Rest Solutions by Customer or its Authorized Users. The Customer is responsible for ensuring that no Guest 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 any time 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 Contracted Sensors 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 and Rest shall repair or replace non-conforming Contracted Sensors at Rest’s sole cost and expense. Such replacement shall be made as soon as practicable after Rest retrieves the non-conforming Contracted Sensors 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 Contracted Sensor 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 Contracted Sensors are intended for installation by qualified professionals. Rest cannot provide any assurance that Customer is properly trained or experienced to correctly install the Contracted Sensors. Replacement of any Contracted Sensor 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.
11. GENERAL TERMS & CONDITIONS.
11.1 Third Party Services. Rest retains the right to subcontract any of the Services in the Agreement to a third party. As the contracting Party with Customer, Rest will remain liable for all terms of service set forth in the Agreement, whether the Service is fulfilled by Rest’s own employees, contractors, or a third-party entity. Rest reserves the right to direct Customers to third parties for support of those parties’ services.
11.2 Notices. Rest will send communications and notices in connection with the Agreement to Customer via electronic mail using the email addresses provided by Customer. Such email notices shall be deemed given and received on the day in which the email was sent. Customer agrees that all Agreements, notices, disclosures, and other communications Rest provides electronically shall satisfy any and all legal requirements that such communications would satisfy if it were in written paper form. The foregoing does not affect Customer’s non-waivable rights. Rest may also use Customer’s email address to send other messages, including information about the Services, Rest, its Affiliates and/or special offers. Customer may opt out of such promotional emails, but not Rest’s official notices pertaining to the Agreement or the Services.
All other notices or other communications between the Parties shall be sent to the addresses provided by the respective Party on the applicable Order Form by (i) first-class, registered, or certified mail, or similar service with postage prepaid; or (ii) sent by overnight courier service (for next Business Day delivery if within the country of the sender or second Business Day delivery if outside the country of the sender) return receipt requested. Such notices shall be deemed given and received at the time of delivery or refusal of delivery.
11.3 Severability. If any provision of the Agreement is prohibited by law or held to be invalid or unenforceable, the remaining provisions hereto shall not be affected, and the Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law.
11.4 Survival. In addition to the instances of survival specifically set forth in the Agreement, any provision that imposes an obligation after the termination or expiration of the Agreement shall survive such termination or expiration. Customer acknowledges that its payment obligations under the Agreement will continue uninterrupted under the following circumstances: (i) if Customer ceases to own, lease, manage, or otherwise control the Property subject to the Agreement for any reason; (ii) if Customer's franchise changes or imposes conditions that interfere with Rest's ability to perform the Services; or (iii) if any similar event occurs that prevents Rest from fulfilling its service commitments. Should Customer cease to be the management company for a given Property, the Customer's obligations under the Agreement for that Property may be excused, provided that the new management company or property owner taking control agrees to enter into a separate contract with Rest for the same services for the remainder of the then-current Term, but no less than one (1) year, at Rest’s sole discretion.
11.5 Waiver. Except as otherwise provided herein, the delay or failure of a Party to exercise any of its rights or to enforce any of the provisions of the Agreement on any occasion will not be a waiver of such right or provision, nor affect the right of such Party thereafter to enforce such right or provision. All waivers must be in writing and signed by the Party waiving the right. Any waiver by either Party shall be a specific, limited waiver and shall not constitute a continuing waiver.
11.6 Governing Law; Jurisdiction. The Agreement and all of the rights and obligations of the Parties hereto and all of the terms and conditions hereof shall be construed in accordance with and governed by and enforced under the laws of the State of Texas (without giving effect to its conflict of laws principles). Any legal action, claim, proceeding or Dispute (as defined below) must be resolved in accordance with Section 11.7 (Arbitration), provided that actions pursuant to Section 11.8 (Equitable Remedies) may be instituted in the state or federal courts located in Dallas, Texas. Each party agrees to personal jurisdiction in that venue for such purposes and shall not object to the venue as an inconvenient forum or otherwise. Each Party waives its right to a jury trial in any such litigation or proceeding. The Uniform Computer Information Transactions Act or any version thereof adopted by any state in any form does not apply to the Agreement.
11.7 Arbitration. Notwithstanding the Parties’ agreement to the jurisdiction in Section 11.6 (Governing Law, Jurisdiction), and subject to Section 11.8 (Equitable Remedies), the Parties agree that any disputes arising out of, or related to, the Agreement (including, without limitation, the performance under, or breach, termination, enforcement, or validity thereof) (a “Dispute”) will be finally resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in force (the “Rules”) and the Dispute will be heard by a sole arbitrator. Within twenty (20) days of receipt by the respondent of the request for arbitration, the Parties will either mutually agree on the arbitrator or, if not mutually agreed in that time period, the arbitrator will be appointed as set forth in the Rules. The arbitrator must be fluent, and the proceedings and all documents will be, in English. The arbitrator will apply the applicable governing law of the agreement and may not award any punitive or exemplary damages or any damages not in accordance with the terms of the Agreement. The place of the arbitration shall be Dallas, Texas, but meetings and hearings may be conducted online if requested by either Party. Each Party shall, upon the written request of the other Party, provide the other with copies of documents relevant to the issues raised in the arbitration. Other discovery may be ordered by the arbitrator to the extent the arbitrator deems additional discovery appropriate, and any dispute regarding discovery, including disputes as to the need therefor or the relevance or scope thereof, shall be determined by the arbitrator, which determination shall be conclusive. Except as may be required by law, all arbitration proceedings and submissions shall be confidential, and neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties. The arbitral award will be final, binding and non-appealable, and judgment upon the award may be entered in any court having jurisdiction under applicable law.
11.8 Equitable Relief. Notwithstanding the Parties agreement to arbitrate under Section 11.7 (Arbitration) or any other provision under the Agreement regarding discussion, negotiation, mediation, or other resolution of disputes, if Customer breaches or threatens to breach Section 5 (Confidentiality and Data Use) or Section 6 (Intellectual Property) or any other provision under the Agreement regarding confidentiality, intellectual property rights, or compliance with applicable law, the Parties agree that money damages alone would not provide an adequate remedy and Rest may seek a temporary or permanent injunction or other equitable relief from any court of competent jurisdiction, without showing actual damages or posting a bond or other security. This equitable relief does not limit other rights, remedies, damages, or forms of relief.
11.9 Attorneys' Fees. In connection with any effort or action, including, without limitation any arbitration or other proceeding brought by Rest, to collect amounts due under and/or enforce any provision of the Agreement, Rest shall be entitled to recover the reasonable costs and expenses incurred by it in connection with that effort, action, arbitration or other proceeding including, but not limited to, all reasonable expenses of arbitration, including the arbitrator’s fees, administrative fees, travel expenses, out-of-pocket expenses, court costs, witness fees, and attorneys’ fees.
11.10 Assignment. Rest may freely assign the Agreement to any of its Affiliates or in the event of a sale of all or substantially all of the assets corresponding to the business to which the Agreement pertains, a sale of all or substantially all of its voting securities, a merger or other corporate reorganization, without the consent of the Customer. Customer may not assign the Agreement, by operation of law or otherwise, without Rest’s prior written consent, which shall not be unreasonably withheld. Any assignment in violation of this Section is void and unenforceable. The Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted successors and permitted assigns.
11.11 Relationship of the Parties. The Agreement does not constitute a partnership, joint venture, or similar arrangement between the Parties. Neither Party, nor any of their respective directors, officers, employees, or agents is authorized to bind the other Party or other act on behalf of the other. Nothing herein shall be construed to give any person or entity other than Rest and Customer any legal or equitable right, remedy, or claim in connection with or arising from Rest’s performance hereunder. Rest is acting as an independent contractor with respect to the Services provided to Customer. Employees of Rest performing Services for Customer will not be considered employees or agents of Customer. Rest is responsible for all employee tax and withholding and will comply with all applicable laws with respect to hiring and employment of such employees.
11.12 Publicity. Customer consents to inclusion of its name and logo in client lists that may be published as part of Rest’s marketing and promotional efforts. Customer consents to Rest’s reasonable use of Customer materials which are incorporated into any of the Services or which make use of the same, including but not limited to, the use of still photographs of and/or screen captures, and to make demonstrations of executable versions of any Rest Solutions or Services, including any that showcase Customer properties and facilities, to the extent that such use does not reveal the Confidential Information of Customer. Rest may make general references to its relationship with Customer in certain marketing materials, such as press releases, white papers, testimonials, etc. Customer agrees to provide reasonable assistance to Rest in these efforts.
11.13 Entire Agreement. This MSA (as updated by Rest from time to time) and all Order Forms, amendments, addendums, or statements of work executed by the Parties in accordance with the terms contained herein constitute the entire agreement between the Parties and supersedes and replaces all other prior or contemporaneous agreements and representations, or discussions, whether oral or written. This MSA was written in English (US). To the extent any translated version of this MSA conflicts with the English version, the English version shall control.
11.14 Interpretation. All headings in the Agreement are for reference only and shall not affect the interpretation of the Agreement. The Parties agree that the controlling language of the Agreement is English and that, if Customer has any legal right to have contracts drafted in a different language, Customer has voluntarily waived this right. Unless otherwise expressly defined in the Agreement, the words used in the Agreement shall bear their natural meaning. The Agreement has been negotiated and approved by the Parties and, notwithstanding any rule or maxim of law or construction to the contrary, any ambiguity or uncertainty will not be construed against either of the Parties by reason of the authorship of any of the provisions of the Agreement.
11.15 E-Signature and Counterparts. The Agreement may be executed in multiple counterparts, which may be shared electronically (including via email), each of which will be deemed an original, but all of which together will constitute one and the same instrument. Electronic signatures shall be considered originals hereunder, and the Parties agree that use of electronic signature software (e.g., DocuSign, Adobe Sign) to execute the Agreement or any order form hereunder is sufficient evidence of intent to be bound to the terms hereof and thereof to constitute a binding signature.