HPG R&D LTD (Israel company’s number: 516129939) (hereinafter referred to as “HyperGuest” or “Company” or “We”) owns, operates and offers to Travel Providers a proprietary online digital connectivity platform on a software-as-a-service basis (“Platform”) that enables direct technology and commercial connectivity with Accommodation Providers.
HyperGuest is willing to grant access to the Platform to you as the company or the legal entity that will be utilizing the Platform (referenced below as “Customer” or “Travel Provider” or “You”) on the condition that you accept all of the terms of this agreement (as defined below).
By entering into this agreement on behalf of an entity or organization, you represent that you have the legal authority to bind that entity or organization to this agreement. Customer and HyperGuest may each also be referred to as a “Party” and together, the “Parties”.
Please read this agreement carefully before using the Platform. This terms of service (“Agreement” or “Terms and Conditions” or “Contract”) constitutes a legal and enforceable contract between Customer and HyperGuest. By indicating consent electronically, or accessing or otherwise using the Platform, Customer agrees to the terms and conditions of this Agreement. If you do not agree to this agreement, do not indicate consent electronically and make no further use of the Platform.
- These Terms and Conditions govern the agreements concluded between the respective Customer and HyperGuest regarding the use of the Platform, unless expressly agreed otherwise in writing.
- The Platform is provided exclusively to businesses and contracts will only be made with businesses. The Platform cannot be used by consumers and consumers may not enter into contracts for its use.
- The purpose of the contract is the provision of access to the Platform via a user account created for the respective customer and the storage and processing of the data (reservations etc.) either online accessed via a digital interface (API) with customer’s demand side systems and/or via a HyperGuest own demand side system provided (accessed by a login), all in accordance with these terms and conditions.
The Platform is designed for and designated to allow the customer to book directly with various accommodation providers and get access to their (dynamic) inventory (bookable data: such as rate and availability, reservations, rate-plans etc.) and static data (non-bookable data: such as: images, descriptions, amenities etc.). HyperGuest only acts as a technology enabler by making the Platform available for the use of the customer. HyperGuest does not act as a commercial intermediary or any similar role.
The Travel Provider as the following options:
- To connect to and book directly with Accommodation Provider/s via the Marketplace.
In this case the Marketplace Terms will govern any and all bookings done via the Marketplace;
- Pending the relevant Accommodation Provider/s prior approval and consent, to connect to and book directly with Accommodation Provider/s based on a bilateral agreement to be agreed between the Accommodation Provider/s and the Travel Provider.
In this case, the Marketplace Terms are not applicable and the relevant Accommodation Provider and the Travel Provider have full liberty to set the terms and conditions to be applied as they wish on their absolute discretion.
In case the customer wishes to use and utilize the Platform Payment Model then it is acknowledged and agreed that HyperGuest is collecting/transferring payments and/or fees, only on behalf of the Customer and acting as the Customer’s proxy for this purpose.
- HyperGuest will provide the customer with the current version of the Platform for the purpose of digital real-time connectivity to various accommodation provides inventory (rate and availability for allowing placement of reservations) with the currently (as of the date of signing/concluding the agreement per the process described in § 6 (Contract) below) available functions, features, models and services.
- To the extent HyperGuest offers an open 2-way API to allow 3rd parties to create non-HyperGuest applications and connect them to the Platform using the interfaces defined by HyperGuest, HyperGuest is solely liable for the proper functionality of said interface as defined. HyperGuest neither guarantees nor is liable for the functioning of any non-HyperGuest applications in any specific form; this liability rests solely with the customer’s other contractual partners.
4. Fees and Payments
- The use of the Platform by the Travel provider and the services provided by HyperGuest under this agreement are subject to a charge as defined in Annex A.
- In case Hyperguest settles payments, for and on behalf of the Travel provider, for reservations made by the Travel provider then Annex B shall be applied.
- HyperGuest may provide to the Travel provider additional premium or extra functions, features and models and services if and as agreed between the parties, and if so, those will be subject to a separate agreement to be concluded and executed between the parties.
5. Platform Availability
The expected average availability of the platform is 99.9% of the time, determined on a monthly basis and not including scheduled maintenance work of no more than one hour per week. The expected availability refers to the quality of the Platform offered for customer use at HyperGuest’s interface with the internet. Any degradation to data transmission along the internet on its way to the customer and/or the customer’s IT system is not covered by this guarantee.
HyperGuest will announce any scheduled maintenance work at least seven days in advance.
When calculating the actual availability, HyperGuest will consider any downtime for which it was not responsible as available times. This includes:
- any maintenance or other services agreed with the customer which go beyond scheduled maintenance work and which do not allow access to the Platform;
- unforeseen maintenance work that becomes necessary if this work was not caused by a breach of HyperGuest’s obligations to provide its services (force majeure, in particular unforeseeable hardware failures, strikes, natural disasters, etc.);
- downtimes due to virus or hacker attacks, insofar as HyperGuest has taken the agreed or, in the absence of an agreement, the usual protective measures;
- downtimes due to the unavailability of the customer’s equipment or due to other interruptions caused by the customer (e.g. failure of the customer to cooperate);
- downtimes due to the installation of urgently needed security patches;
- downtimes due to software errors in customer applications or due to errors in the system and system-related software caused by customer applications or data;
- downtimes caused by third parties (persons not associated in any way with HyperGuest).
The agreement is concluded online via a website operated by HyperGuest in English via the following technical steps:
- Customers fill out a form provided online by HyperGuest with the necessary information. Before submitting their consent, they may check the information entered in the form for input errors and correct any errors detected.
- The customer then clicks to submit their information and consent to HyperGuest as an offer to enter into a contract.
- HyperGuest will confirm receipt of the customer’s offer by sending an email to the address provided. This confirmation does not constitute an acceptance of the customer’s offer unless expressly stated otherwise in this email or the customer is expressly informed that they can activate their account.
- HyperGuest will send an express declaration of acceptance of the customer’s offer to enter into a contract if this has not already been done, as explained above, with the confirmation of receipt.
Once the contract has been accepted, HyperGuest will store the customer’s information for any contracts concluded online. The customer may request the details of their contract from HyperGuest at any time, but this is not otherwise directly accessible to the customer once the contract offer has been accepted. We therefore recommend keeping a copy of the data entered.
7. HyperGuest’s obligations
- Upon conclusion of the contract, HyperGuest shall set up within a reasonable timeframe an account for the customer which is accessible via the internet and which will allow the customer to use the Platform for the purposes agreed. HyperGuest shall grant the customer. Authorized access consists of a user identification created by the customer and a password.
- HyperGuest will provide the customer with the documentation via the internet.
- HyperGuest provides support in the form of:
1. Pure community support via a web forum, or
2. Email support, or
3. Chat support, or
4. Telephone support.
8. Customer obligations
- The customer is obligated to use the Platform only for the purposes specified in § 3 (Purpose) and not to store therein any unlawful content, such as viruses or malicious code, which violates the laws, official requirements, or rights of third parties.
- The user password and password may only be communicated by the customer to authorized users and must otherwise be kept secret.
- The contractual use of HyperGuest’s services depends on the fact that the hardware and software used by the customer, including workstations, routers, data communication media, etc., comply with the minimum technical requirements for the use of the current version of the Platform and that the users authorized by the customer to use the application software are familiar with the operation of the same.
- The use of the Platform is available for the customer for slim fees, but as HyperGuest invested and still is investing (and is expected to continue doing so) enormous resources and costs to create, enable and maintain the network of accommodation providers (sellers), customer will engage and work with or buy from any accommodation provider that was introduced to customer via the Platform, only via the Platform and not through any other means.
For the purpose of this clause, the term “introduced” means that the customer firstly started to work directly (placed a reservation through the Platform) with that accommodation provider after the date of this agreement.
9. Rates – Restrictions and Limitations
Accommodation providers have a tremendous vested interest in controlling their rates (to maintain and protect “Rate Parity” across various channels etc. and to avoid rate leakages and disparity across various channels).
Hence the Travel Provider acknowledges, represents and warrants that the Travel Provider will always and absolutely honor the BAR restrictions and never ever under no circumstances, the Travel Provider will, directly or indirectly, intentionally or unintentionally, display, publish or offer rates which are lower than the BAR on any Open Site (whether these sites are operated or managed by the Travel Provider or by any of its third party customers). The Travel Provider holds full responsibility for the above and in case of a breach, in addition to, any other remedies, the Accommodation Provider will have the right to cancel bookings made in breach. The Travel Provider is fully responsible for any and all damages that will occur to the Accommodation Provider due to a breach of the above said obligations.
For the purpose of this section (and the agreement), the following terms shall have the following meanings:
- “Best Available Rate (BAR)”: is the rate/s indicated by the Accommodation Provider as such (with the meaning that these are the rate/s which the Travel Provider need to honor and MUST NOT undercut on any Open Site).
- “Open site”: any online website, mobile app etc. that is generally open for the public and can be accessed freely by consumers, users etc.
- HyperGuest grants the customer a simple, non-exclusive, and non-transferable license to use the Platform for the duration of the contract for the purposes and within the scope agreed therein.
- Unless otherwise expressly agreed, the customer shall not make the Platform or its use available to third parties (anyone who is not employed by the customer) for free or for pay. The customer is expressly not permitted to sublet or lend or make the Platform accessible to third parties or to make copies of the software.
- Insofar as the customer stores copyright-protected content in their allocated storage space on the Platform, they grant HyperGuest the right to make the content stored there accessible to the same when queried and, in particular, to reproduce and transmit it for this purpose. The customer also grants HyperGuest the right to reproduce the data for backup purposes and further warrants that they have the authority to grant these rights.
11. Data protection
In order to use the Platform as contractually agreed, the parties are also entering into a contract for the third-party processing of personal data. The customer is solely responsible for compliance with data protection regulations within the scope of the personal data processed by the Platform.
The Data Processing Addendum which is integral part of this Agreement is available here: https://www.hyperguest.com/data-processing-addendum/
12. Duration, termination
The contract is for an indefinite period of time and may be terminated by either party at any time without notice. Travel provider’s obligations arising from existing reservations will survive the termination.
- The contracting parties shall treat all business and trade secrets of the other party (“confidential information”), in particular all documents in electronic or other form, the code of the software application, its documentation, customer information, reservations data, accommodation providers information, procedures and methods of HyperGuest in the provision of the services, as well as any other expertise of HyperGuest, confidentially and only use them for the purposes of the contract. A party’s confidential information does not include information which (i) is or becomes generally known without the other party being responsible for such disclosure; (ii) was already known to the other party before it was made available to it and which the other party had received neither directly nor indirectly from the protected party; (iii) was lawfully disclosed to the other party by a third party without restrictions on disclosure; (iv) was developed by the other party itself without using or referring to the confidential information of the protected party.
- This information may only be disclosed to third parties if the protected party has expressly given its prior written consent and if this is absolutely necessary for the execution of the contract. This obligation to maintain secrecy does not apply to persons (auditors, tax consultants, lawyers) of the respective party who are bound by law to maintain professional secrecy, nor does it apply to authorities who have a right to information, nor does it apply to the extent that publication has been ordered by a competent court. In the event of a request for information from an authority or a court, the parties shall cooperate in order to keep the disclosure of confidential information to the minimum necessary. Third parties do not include not agents, freelancers, and subcontractors of HyperGuest.
- Upon termination of the contract on whatever grounds, both parties shall immediately destroy or return all confidential information of the other party at their option, unless mandatory storage obligations require otherwise.
- The rights and obligations arising from §13.1 to § 13.3 shall remain unaffected by the termination of the contract.
14. Ownership and Intellectual Property
- The parties acknowledge that HyperGuest shall have the sole and exclusive ownership of all proprietary right, title and interest in and to the Platform and its services and all of its other technology, software, source codes, commercial relationships, products, platform system, including any patents, trademarks, service marks, logos, trade names, database rights, design rights, know-how and copyright (whether registered or not) in all territories, any enhancements thereto, any documentary or other materials regarding the use thereof and related thereto, and any applications for any of the aforesaid and any data or information, including confidential information provided to the other party in whatever form or media in this regard, and any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not which may subsist in any part of the world (together for the purpose of this section and the entire Agreement “Intellectual Property Rights”) . The Intellectual Property Rights are exclusively owned by HyperGuest and are fully reserved to HyperGuest. HyperGuest is absolutely free to use the Intellectual Property for any matter, purpose or need. Except as expressly provided in this agreement, Customer may not copy, modify, sell, distribute, sublicense or in any manner transfer the Platform and HyperGuest’s services and/or the Intellectual Property Rights or attempt to do any of the foregoing and under no circumstance may customer reverse-engineer, decompile or otherwise attempt by any means to create or derive the source code related to the Intellectual Property Rights, nor authorize any third party to do the same. Customer may use the Platform, HyperGuest’s services and/or Intellectual Property Rights only for the purposes contemplated hereunder. Customer agrees not to use the Intellectual Property Rights for its own benefit except as expressly permitted herein. Any and all ideas, inventions, product enhancements and work product of any kind whatsoever made, devised, and/or discovered by the Customer and/or its employees and/or subcontractors in connection with the Intellectual Property Rights, shall be the exclusive property of HyperGuest and Customer shall cooperate reasonably in order to facilitate HyperGuest’s legal assertion and/or registration of such rights.
- Customer hereby grants to HyperGuest a non-exclusive, royalty-free, world-wide, non-transferable, non-assignable license during the term of this agreement, to use and reproduce customer data stored on the Platform platform to such extent as necessary to allow HyperGuest to perform its obligations under this agreement and as reasonably inferred thereby.
- In the event of damage due to legal defects or flaws in the Platform, HyperGuest shall only be obliged to compensate the customer for the damage resulting from any defects or flaws it has fraudulently concealed. In the event of a breach of protective duties that are not connected with the provision of the Platform, HyperGuest shall be liable without limitation for damages resulting from injury to life, body or health resulting from a negligent breach of duty by HyperGuest or an intentional or negligent breach of duty by a legal representative or vicarious agent of HyperGuest. Otherwise, HyperGuest is only responsible for damage caused with intent or out of gross negligence.
- Limitation of Liability:
Mutual Limitation of Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.
Limitation on HyperGuest’s Liability. HyperGuest will not be liable for any damages that result from any downtime or failure of performance of the Platform, or customer otherwise not being able to use or access the Platform, in excess of the total cumulative amounts paid to HyperGuest by the customer during the last 12 months.
16. Bookings via Third Parties
HyperGuest may source and offer the Travel Provider the option to book accommodation from third parties (which are not the ultimate accommodation provider, such as: wholesalers, Destination Management Companies, Tour Operators and other travel providers). If such options are available, then these offers will be clearly communicated and indicated as “Indirect” (either on screen or via the API response).
The Marketplace Terms (all relevant stipulations) will cover and apply to these offers/booking, mutatis mutandis.
17. General & Miscellaneous
- Force Majeure. Neither party will be deemed to be in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, act of terrorism, war, shortages of material or supplies or any other cause reasonably beyond the control of such party (“Force Majeure”), provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its diligent, good faith efforts to cure the breach. In the event of such a Force Majeure, the time for performance or cure will be extended for a period equal to the duration of the Force Majeure but not in excess of six (6) months, at which point this Agreement may be terminated in accordance with the terms hereunder.
- Assignment. Neither party may assign or transfer its rights or obligations under this Agreement to any third party without the express written permission of the other party, which permission will not be unreasonably withheld or delayed; provided, however, that HyperGuest may freely assign its rights and obligations under this Agreement to an affiliate or to a successor to all or a substantial part of its business activities relating to the subject matter of this Agreement. For greater certainty, a change of ownership of HyperGuest’s shares will not be considered an assignment of HyperGuest’s rights and obligations hereunder.
- Successors and Assigns. Subject to any provisions herein with regard to assignment, all covenants and agreements herein shall bind and inure to the benefit of the respective heirs, executors, administrators, successors and assigns of the parties hereto.
- Notices. Except as otherwise provided herein, any notice hereunder shall be in writing and shall be given by registered, certified or express mail, or reliable overnight courier addressed, or by facsimile, or by email. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed.
- Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such determination will not affect any other provision of this Agreement, and the parties shall negotiate in good faith a replacement provision.
- Counterparts. Any number of counterparts may be executed by the Parties. Each such counterpart shall be deemed to be an original instrument but all such counterparts, taken together, shall constitute one and the same Agreement.
- No Implied Waivers. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the right to require such performance at any time thereafter, nor shall it affect in any way the right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any subsequent breach of the same provision or any other provision.
- Knowledge of a Party. For purposes of this Agreement, a party shall be deemed to know or have knowledge of facts or events to the extent that any of that party’s statutory officers personally knows or has knowledge of such facts or events, or upon one party having notified the other party, or its statutory officers, thereof.
- Arbitration, Any and all disputes, controversies or differences which may arise between the parties under or in connection with this Agreement or for the breach thereof or as to the arbitrability of such disputes, controversies or differences, shall be finally settled by final and binding arbitration conducted in a place mutually agreed by the parties. The arbitration shall be conducted by one person (“Arbitrator”). The Arbitrator will be a person to be agreed between the Parties. If the parties cannot agree on the single arbitrator within 15 days after a party notifies the other of a dispute, then each party shall select an arbitrator and the arbitrators so selected shall choose another arbitrator who shall arbitrate the dispute. Should said arbitrators fail to agree on the identity of the Arbitrator within a reasonable timeframe, then the arbitrator shall be appointed by the Competent Court.
- Entire Agreement. This Agreement represents the entire understanding between HyperGuest and customer with regard to the subject matter hereof, and supersedes all prior other agreements, instruments, understandings and/or communications (if such exists at all) between the Parties and the Parties hereby agree that upon execution of this Agreement all such other agreements, instruments, understandings and/or communications (if such exists at all) shall become void, null and of no further force and effect. This Agreement may not be and cannot be modified except by a written instrument signed by the parties hereto.
- Modifications. Unless otherwise specifically agreed, HyperGuest shall be entitled to amend or add to these terms in accordance with this paragraph. HyperGuest shall notify the customer of such amendments or addenda in writing at least six weeks before they take effect. If the customer does not agree with the amendments or addenda to the contractual conditions, they can object to the changes within a period of one week from the date on which they take effect. This objection must be in text form. If the customer does not object, the amendments or addenda shall be deemed to have been accepted. HyperGuest shall specifically inform the customer of the consequences of their available options when providing notice of the proposed amendments or addenda. Amendments or addenda to this contract must be in writing to be valid.
- Place of performance. The place of performance and the exclusive place of jurisdiction are the registered offices of HyperGuest.