This StarRez Master Subscription Agreement (“MSA”) together with all applicable ordering documents including the Statements of work (“SOW”) (collectively, the “Agreement”) is entered into by and between the entity licensing the Services (“Customer”) and the StarRez entity identified in the Statement of Work (“StarRez”). Customer and StarRez are individually a “Party” and collectively, the “Parties”. This MSA, SOW, and any other documents or terms incorporated by reference, constitute the entire agreement and understanding between the Parties on the subject matter.
This Agreement is a binding contract on the Customer and governs our supply and the use of and access to the Services by the Customer and its Authorized Users.
By accepting this Agreement, either by executing a Statement of Work, accessing or using the Services, or by authorizing or permitting any Authorized User to access or use the Services, the Customer agrees to be bound by this Agreement and is responsible for compliance with this Agreement by Authorized Users. To the extent of any inconsistency between this MSA and a SOW, the terms of the SOW shall prevail.
1.1. Grant of rights. Subject to the Customer paying the applicable fees as set out in the SOW, StarRez grants the Customer a non-exclusive, non-transferable, limited right to access and use the Services during the Term in accordance with the Agreement. StarRez shall provide the Customer access to the Services via the internet for the Term in accordance with this Agreement. StarRez Software and Services are for the Customer’s Housing and Accommodation Operations only.
1.2. Use of the Services. The Customer will use the Services (a) solely for its own internal purposes for managing booking and residential activities for its residents and (b) otherwise in accordance with this Agreement and SOW. The Customer will not provide access to any portion of the Services to any person or entity other than an Authorized User or as otherwise expressly permitted in this Agreement. Customer will promptly and without undue delay notify StarRez upon learning of any unauthorized use of the Services or any other breach of security related to the Services. The Customer is fully liable for its Authorized Users’ use of the Services and compliance with the Agreement. StarRez may communicate with any Authorized Users about the Services, including how to use the Services.
1.3. Acceptable Use Policy. In its use of the Services, without limiting any other term of this Agreement, the Customer agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than Authorized Users or as expressly permitted by this Agreement; (b) use the Services to process data on behalf of any third party; (c) modify, adapt, or attempt to gain unauthorized access to the Services; (d) use the Services in any unlawful manner; (e) use the Services to send unsolicited or unauthorized mail, spam, other forms of duplicative or unsolicited communications; (f) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (g) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software which comprises the Services; (i) use the Services to knowingly post, transmit, upload, link to, send or store any viruses, malware, or any other similar harmful software; or (j) attempt to use, or use the Services in violation of this Agreement; (k) perform any significant load or security testing that is not expressly authorized by the Service Level Agreement without first obtaining StarRez’s written consent; and/or (l) fraudulently use the Services. If Customer violates this Acceptable Use Policy in any way, StarRez’s shall have the right to immediately suspend Customer’s access to the Services and/or terminate this Agreement.
2.1. Provision of information. The Customer is responsible for providing StarRez with the information necessary for StarRez to provide the Services. The Customer is solely responsible for the accuracy, quality and legality of such information.
2.2. Compliance with Laws. The Customer is solely responsible for ensuring that use of the Services, including the storage and transmission of Customer Data, is compliant with all applicable Laws and any policies and agreements which may be in place between the Customer and an Authorized User
2.3. Authorized Users. The Customer represents and warrants that (a) all Authorized Users are highly competent, suitably qualified and appropriately trained to be able to use the Services and (b) it has the minimum resources, including its own in-house support, as required to enable Authorized Users to adequately use the Services. The Customer acknowledges and agrees that StarRez will provide commercially reasonable assistance to the Customer as specified in this Agreement (including in the SOW and service level agreement) and to the extent that additional training and support is requested by the Customer beyond what is reasonably required, the Customer may be liable to pay additional fees to StarRez for such support.
2.4. Testing. It is the Customer’s responsibility to thoroughly test the Software at the time of delivery and throughout the term of the Agreement, and raise any configuration, integration or other issues with StarRez during the term of the Agreement. If the lack of testing becomes the reason for poor results and performance of the Software, StarRez is not liable for the outcome or results.
2.5. Additional Users. Should Customer utilize the Services in excess of the Services contracted for in the relevant SOW, StarRez shall have the right to contact Customer to discuss the overages and at StarRez’s sole option either (a) require Customer to pay additional fees commensurate with the then-current rate under the SOW and charging from the time of overage or (b) require Customer to change its usage so that it conforms to the current SOW.
3.1. Fees. The Fees applicable to the Customer’s use of the Services for the initial Term will be as set out in the SOW.
3.2. Payment. Customer agrees to pay StarRez for the Services in accordance with the payment terms set out in the applicable SOW. Except as approved in writing by StarRez, orders for Services are non-cancellable, Fees paid to StarRez are non-refundable, and the Services purchased cannot be decreased or reduced during the relevant Term.
3.3. Taxes. Unless otherwise stated in the SOW, the Customer shall pay for all applicable federal, state, and local taxes and assessments due in connection with this Agreement as set out in the SOW. All Fees are exclusive of taxes.
4.1. Customer Data. The Customer is solely responsible for the content of all Customer Data. The Customer must secure and maintain all rights in Customer Data necessary for StarRez to provide the Services to the Customer without violating the rights of any third party or otherwise obligating StarRez to the Customer or to any third party. StarRez does not and will not assume any obligations with respect to the Customer Data or to the Customer’s use of the Services other than as expressly set out in this Agreement or as required by applicable Law.
4.2. Right to use. The Customer hereby authorizes StarRez to use the Customer Data for the purpose of enabling StarRez to perform the Services. Customer Data will not be replicated into a test environment unless requested in writing by the Customer. Customer warrants that throughout the term of this Agreement (a) Customer has the right to authorize StarRez’s use of the Customer Data as set forth in this Agreement; and (b) the Customer Data is valid and accurate in all material respects. In addition, the Customer grants StarRez the right to de-identify and aggregate Customer Data and to use such de-identified and aggregated data for its own purposes, provided that such data is never re-identified or associated with the Customer.
4.3. Data protection. StarRez maintains appropriate administrative, physical, and technical safeguards for the protection, security, confidentiality and integrity of Customer Data, including having measures for preventing unlawful or unauthorized access, use, modification or disclosure of such data.
4.4. CCPA. To the extent that StarRez’s processing of personal information (as such term is defined in the CCPA) on behalf of Customer falls within the scope of the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”), the parties agree that (i) Customer is considered a “Business” under the CCPA and (ii) StarRez is acting as a “Service Provider,” as such terms are defined pursuant to the CCPA. Accordingly, Customer as the “Business” bears the primary responsibility for ensuring that any processing of personal information is compliant with the CCPA. StarRez will use, process and transfer any personal information provided by Customer solely for the purpose of performing StarRez’s obligations under this Agreement, and for no commercial purpose other than the performance of such obligations and improvement of the Service. For the avoidance of any doubt, StarRez will not sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate personal information of Authorized Users to a third party for monetary or other valuable consideration. StarRez may share aggregated and/or anonymized information regarding Customer’s use of the Services with third parties to help StarRez develop and improve the Services in accordance with Section 4.4.
5.1. Third Party Services. The Services may contain features designed to be integrated and/or configured with Third Party Services. To use such features, the Customer may be required to obtain access to such Third Party Services and may be required to grant StarRez access to account(s) of the Customer associated with such Third Party Services. By enabling any Third Party Services, the Customer is expressly permitting StarRez to disclose any information and Customer Data necessary to facilitate the use or enablement of such Third Party Services. StarRez cannot guarantee the continued availability of such features and may cease providing them without entitling the Customer to any refund, credit, or other compensation, if for example and without limitation, the third party provider ceases to make the Third Party Services available in a manner acceptable to StarRez and/or which can be configured with the Services. If the Customer decides to enable, access or use Third Party Services, the Customer’s access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and StarRez does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage the Customer’s data, or any interaction between the Customer and the provider of such Third Party Services.
5.2. Disclaimer of liability. StarRez is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by a third party provider and StarRez disclaims any and all liability for the use of any Third Party Services. The Customer irrevocably waives any claim against StarRez with respect to such Third Party Services, and StarRez is not liable for any damage or loss caused or alleged to be caused by or in connection with a Customer’s enablement, access or use of any such Third Party Services, or any reliance on the privacy practices, data security processes or other policies of such Third Party Services.
6.1. Confidentiality. In consideration of one party, as “Discloser” disclosing or making available any Confidential Information to the other party, as “Recipient” under the terms of this Agreement, the Recipient shall (a) keep the Confidential Information secret and preserve its confidential nature; (b) not use, copy or reproduce the Confidential Information for any purpose other than for the purpose of using the Services; (c) not use, copy or reproduce the Confidential Information to the disadvantage of the Discloser; (d) keep the Confidential Information secure and protected from loss and not disclose, cause, or permit the disclosure of Confidential Information to any person other than as permitted under this Agreement; and (e) maintain appropriate security measures, in no case less than the security measures taken by the recipient to protect their own Confidential Information, to protect the Confidential Information against unauthorized access, use, or disclosure.
6.2. Permitted Disclosures. The Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided Recipient remains responsible for their compliance with this Section 6 and they are bound to confidentiality obligations no less protective than this Section 6. Recipient may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt written notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest, limit, or protect such required disclosure, at Discloser’s sole cost and expense.
6.3. Privacy. Any personal information forming part of the Customer Data will be collected and used by StarRez in accordance with its privacy policy issued or made available to the Customer from time to time and otherwise in accordance with Privacy Laws. The Customer acknowledges and agrees that in collecting, soliciting, holding, using, and/or disclosing personal information as part of its use of the Services, the Customer is responsible for complying with Privacy Laws at all times. The Customer must ensure that at all relevant times it holds all approvals required to permit StarRez to provide the Services and must inform StarRez as soon as it becomes aware that it does not hold any such approvals.
7.1. Ownership. The Customer acknowledges that all intellectual property rights in the Services, and all material published by StarRez in respect of the Services, including but not limited to text, graphics, photos, logos, images, trade-marks, audio and audio visual clips, databases, data compilations, data, and software (but excluding any content uploaded by the Customer or any other Authorized Users) (“Content”) are (as between the Customer and StarRez) owned and controlled by or licensed to StarRez. The Customer shall not copy, adapt, display, communicate to the public or otherwise use any Content except as otherwise provided in this Agreement or expressly permitted by StarRez in writing.
7.2. The Customer grants StarRez a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services (including, without limitation, into the Software) any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its Authorized Users relating to the Services.
8.1. Term. This Agreement commences on the Effective Date and remains in force until all SOWs are terminated or expired.
8.2. Termination. Either Party may elect to terminate this Agreement at the end of the then current Term by providing written notice to the other Party of not less than forty-five (45) days prior to the end of such Term. Either Party may immediately terminate this Agreement or a SOW if (a) the other Party materially breaches any of the terms of this Agreement and fails to remedy such breach within thirty (30) days written notice of such breach; or (b) the other Party is the subject of an Insolvency Event. StarRez may terminate this Agreement on written notice if the Customer is the subject of a change in Control.
8.3. Suspension. If, at any time, the Customer is in breach of this Agreement (including by failing to pay any fees due to StarRez under this Agreement), then StarRez may, in its sole discretion and without prejudice to its other rights, suspend any part or all of the Services and the Customer’s access to the Service upon providing notice to the Customer. Any such suspension will not relieve the Customer from its obligation to pay StarRez in respect of the Services.
8.4. Effect of termination. Termination of this MSA or a SOW will not relieve the Customer from its obligation to pay StarRez any incurred and outstanding fees stated in any applicable SOW. Upon termination of this Agreement: (a) the Customer shall immediately pay StarRez for all unpaid fees accrued up to the effective date of termination; (b) the Customer will notify Authorized Users that their access to the Services has terminated; and (c) at the Customer’s written request, StarRez will make available for export or download an electronic copy of the Customer Data and any Confidential Information of the Customer, provided that such request is made by the Customer within 30 days of termination. StarRez then current Services fees will apply to any required work. Termination of this Agreement shall not be construed to waive or release any claim that a Party is entitled to assert at the time of such termination, and the applicable provisions of this Agreement shall continue to apply to such claim until it is resolved. Termination of a SOW does not terminate this MSA; however, termination of this MSA will result in the immediate termination of this Agreement and all SOWs.
9.1. Mutual Warranty. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
9.2. Provider Limited Warranties. StarRez warrants that: (a) it has the necessary rights to provide the Services to the Customer; (b) the Services do not and will not infringe the intellectual property rights of a third party; and (c) the Services will perform materially as set forth in the SOW during the Term. The Customer’s sole remedy and StarRez’s sole liability for a breach of the warranties provided for in 9.2 (a) and 9.2 (b) is StarRez’s obligation to defend and indemnify the Customer under Section 11.1. The Customer’s sole remedy for breach of the warranties provided for in this Section 9.2(c) is at StarRez’s sole option to either repair the Services, replace the Services with substantially similar functionality, or refund the Customer the amounts paid for the time-period under which it is claimed the Services were not performing. The warranties set forth in Sections 9.1 and 9.2 are the sole warranties provided by StarRez hereunder, and except for such limited warranties, the Services are provided on an “as is” and “as available” basis, to the fullest extent permitted by law.
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS.
10.1. Limitation of liability. EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY THE CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY PROVISION SHALL NOT APPLY TO ANY CLAIMS FOR (A) FEES DUE UNDER THIS AGREEMENT; (B) THE INDEMNIFYING PARTY’S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION); (C) A BREACH OF STARREZ’S TRADE SECRETS OR INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT; AND/OR (D) LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF LIABILITY SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
10.2. Consequential Damages Waiver. NEITHER PARTY WILL HAVE ANY LIABILITY FOR LOST PROFITS OR LOSS OF BUSINESS OR LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR SERVICES, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
10.3. Survival. The foregoing limitations will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.1. Indemnification by StarRez. StarRez will defend the Customer from and against all third-party claims, demand, or lawsuits to the extent resulting from or alleged to have resulted from the Services’ infringement of a third party’s intellectual property right; provided, however, this does not apply to any infringement claim caused in whole or part by the Customer or its Authorized Users or related to Customer Data. StarRez will indemnify against all awarded costs related to the immediately preceding sentence that are granted by a court of competent jurisdiction or in a settlement agreement agreed to in writing by StarRez. If a third-party claim is made or appears possible pursuant to this Section, Customer agrees to permit StarRez, at StarRez’s sole discretion to (a) modify or replace the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue use. If StarRez determines that neither alternative is reasonably available, StarRez may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to the Customer.
11.2. Indemnification by Customer. The Customer will defend and indemnify StarRez, its Affiliates, and their respective directors, officers and employees from and against all third-party claims to the extent resulting from or alleged to have resulted from (a) the infringement of a third party’s intellectual property right by any content, data or other information uploaded into StarRez’s system or otherwise provided by the Customer; or (b) any and all claims that result from Customer uploaded data that’s processed by StarRez in compliance with the terms of this Agreement and as permitted by Customer.
11.3. Indemnification procedure. The indemnifying party’s obligation in this Section 11 are subject to receiving from the indemnified party (a) prompt written notice of the claim; (b) the exclusive right to control the investigation, defense, and settlement of the claim; and (c) reasonable cooperation at the indemnifying party’s expense. If the indemnifying party’s consent is required to enter into a settlement, such consent shall not be unreasonably withheld. The indemnified party shall have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligation.
11.4. Claims. Any claims or rights to damages that the Customer may have against StarRez under this Agreement shall only be enforceable against StarRez and not any other entity (including any of its Affiliates) or its officers, directors, representatives or agents.
12.1. Notices. All notices which are required to be given under this Agreement shall be in writing, with a copy sent via email, be sent to the address of the other Party as set out in the applicable SOW, and sent by international overnight courier or prepaid certified or registered U.S. mail.
12.2. Governing Law and Disputes. The construction, interpretation and performance of this Agreement shall be governed by the laws of the country of incorporation of the relevant StarRez entity as noted in the applicable SOW, and each party irrevocably submits to the exclusive jurisdiction of its courts and the courts of appeal from them. The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from this Agreement.
12.3. Attorneys’ Fees and/or Costs. In any action to enforce the terms of this Agreement, the party that does not substantially prevail shall be liable to the substantially prevailing party for all reasonable costs incurred in the substantially prevailing party’s enforcement of this Agreement, including, but not limited to, its reasonable attorneys’ fees and costs.
12.4. Modification. StarRez reserves the right to amend and/or modify this Agreement’s terms and conditions and such modifications will become effective upon the renewal of the then-current Term or entry into a new SOW after the updated terms go into effect. StarRez will provide notification to Customer by posting the amended version on its website and sending Customer written notification via email.
12.5. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
12.6. Severability. If any provision or term of this Agreement is held invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement and will be limited to the minimum extent necessary so that the remaining provisions of this Agreement will continue in full force and effect.
12.7. Force majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any unforeseen event beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects (“Force Majeure Event”). A Force Majeure Event does not include an act of negligence by either party. Any Party claiming a Force Majeure Event shall use reasonable diligence to remove the condition that prevents performance and shall not be entitled to suspend performance of its obligations in any greater scope or for any longer duration than is required by the Force Majeure Event. The Party affected by a Force Majeure Event shall give prompt notice to the other Party, shall be excused from performance of its obligations hereunder on a day-to-day basis to the extent those obligations are prevented by the Force Majeure Event, and shall use reasonable efforts to remove or mitigate the Force Majeure Event. In the event a Force Majeure Event exceeds a continuous period of two (2) months or longer, either Party shall have the right to terminate this Agreement by giving written notice to the other Party.
12.8. Relationship. The Agreement does not create a partnership, agency relationship, or joint venture between the parties.
12.9. Survival. All provisions of this Agreement that, by their nature should survive termination of this Agreement, shall survive including all limitations on liability, releases, indemnification obligations, disclaimers, choice of law and intellectual property protections.
12.10. Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement other than by an authorized representative in an explicit written waiver. The failure and/or delay of a party to enforce its rights under the Agreement shall not be construed as a waiver of the right to enforce such rights in the future. In the event a party waives enforcement of any term of the Agreement, such waiver shall not be deemed or construed as a waiver of such terms for the future.
12.11. Publicity. Both Parties shall have the right to display and use the other’s name and logo in its customer lists, vendor lists, or on its website and/or marketing materials showing the other Party is a Customer or Vendor.
12.12. No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement. For clarification, even though an employee of an Affiliate may be an Authorized User under this Agreement, an Affiliate may not bring a claim against StarRez arising from, based on, or under this Agreement unless such Affiliate has entered into its own Agreement directly with StarRez.
Unless otherwise defined, all capitalized terms in in this Agreement have the following meaning:
