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These Terms of Use, together with the terms of the Order Form (as defined below) form the agreement by and between inoRain LLC, a Delaware corporation, and one of its products HotelSmarters (“inoRain”, “We”, “Us”, “HotelSmarters”) and the customer (“Customer” or “You”) with respect to the subscription of the Services (as defined below) by Customer and the performance of the Services by inoRain and all transactions incidental thereto (the “Agreement”).
PLEASE READ THE TERMS OF THE AGREEMENT CAREFULLY BEFORE SUBSCRIBING TO ANY SERVICE (AS DEFINED BELOW). BY SUBMITTING AN ORDER FORM AT HTTPS://INORAIN.COM AND HTTPS://HOTELSMARTERS.COM (the or our “Website”) RETURNING A SIGNED ORDER FORM TO US, OR BY ACCESSING OR OTHERWISE USING ANY OF THE SERVICES, YOU (I) AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENT AND (II) REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE AND AUTHORIZED TO BIND CUSTOMER. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, DO NOT FILL OUT AND SUBMIT AN ORDER FORM, ACCESS, OR OTHERWISE USE ANY OF THE SERVICES. NO OTHER TERMS OR CONDITIONS SHALL BE OF ANY FORCE OR EFFECT UNLESS OTHERWISE SPECIFICALLY AGREED UPON BY INORAIN IN WRITING, DULY EXECUTED BY AN AUTHORIZED OFFICER OF INORAIN (EMAIL IS SUFFICIENT).
THE AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE. IT AFFECTS CUSTOMERS’ RIGHTS REGARDING THE RESOLUTION OF DISPUTES WITH INORAIN. PLEASE READ IT CAREFULLY.
“Access Credentials” means any username, password, security key, security token, credentials for the single sign-on mechanism, and such other credentials as may be determined by us from time to time, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party to the Agreement.
“Aggregated Data” means data and information related to the Customer’s use of the Services that are used by inoRain in an aggregated and anonymized manner, including to compile statistical, analytical, and performance information related to the provision and operation of the Services.
“Authorized Payment Method” means a current, valid payment method You selected on the Order Form or when you purchased a Subscription and inoRain has accepted.
“Authorized Users” means Customer’s employees and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Agreement and (b) for whom access to the Services has been purchased by Customer hereunder.
“Confidential Information” is defined under Section 6 of the Agreement.
“Customer” means You.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Aggregated Data.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by You or using third-party services.
“inoRain Content” means the documentation and any and all other information, data, documents, materials, works, and other content, or reports, that are provided or used by inoRain or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or inoRain Systems. For the avoidance of doubt, inoRain Content includes aggregated data and any information, data, or other content derived from inoRain’s monitoring of Customers' access to or use of the Services, excluding customer data.
“inoRain Personnel” means all individuals involved in the performance of the Services as employees, agents, or independent contractors, including Subcontractors, of inoRain.
“inoRain Systems” means the information technology infrastructure used by or on behalf of inoRain in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by inoRain or using third-party services.
“Free Trial” shall have the meaning assigned to it in Section 4.1.
“Free Services” means the Subscription to the Services free of charge, the scope of which is described at https://hotelsmarters.com/pricing, as such description may be changed by inoRain from time to time.
”Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
“Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law(s)” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance.
“Order Form” or “Order” means the approved form created following Your purchase of one of the Services through the online payment process on our Website or made available to you by inoRain, particularly made for and sent to You by inoRain via a link or otherwise. It contains the specific terms of Your Subscription, including but not limited to the Subscription Term, Services purchased, and Subscription Fees.
“Paid Services” means the Services for which inoRain charges Customer a certain Subscription Fee with the scope of each type of such Service.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
”Personal Information” means information that You provide or to which You provide inoRain access or information which inoRain creates or obtains on behalf of You, in accordance with the Agreement that directly or indirectly identifies an individual (including, for example, names, addresses, telephone numbers, email addresses, and other unique identifiers) or can be used to authenticate an individual.
“Service(s)” means the Free and Paid Services of inoRain.
“Subscription” means the use of any of inoRain’s Services.
“Subscription Fee(s)” means the amount You pay for the Service.
“Subscription Term” means the initial term of Your Subscription to the applicable Service, as specified on Your Order Form(s), and each subsequent renewal term (if any). For the Free Services, the Subscription Term will be the period during which You have an active account to access the Free Services.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, products, equipment, or components of or relating to the Services that inoRain does not own.
“You” or “Your” means the Person or entity using the Service and identified in the applicable account record, billing statement, online Subscription process, or Order Form as the customer and Your Affiliates included in the scope of Your Subscription.
1. Authorized Uses. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the Agreement including but not limited to the payment of the applicable Subscription Fee to inoRain, inoRain hereby grants You a non-exclusive and non-transferable right to access and use the Services during the Subscription Term, solely for use by You and Your Authorized Users in accordance with the terms and conditions herein.
2. Restrictions. You shall not access or use, or permit any other Person to access or use the Services, the inoRain Systems, or inoRain Content except as expressly permitted on the Order Form, or a separate written agreement with us, and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, You shall not:
1. copy, modify, or create derivative works or improvements of the Services, inoRain Systems, or inoRain Content;
2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services, inoRain Systems, or inoRain Content to any Person, including on or in connection with the internet or any time-sharing, service bureau, platform as a service, cloud, or other technology or service;
3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, inoRain Systems, or inoRain Content, in whole or in part;
4. bypass or breach any security device or protection used by the Services, inoRain Systems, or inoRain Content or access or use the Services or inoRain Content other than by an Authorized User through the use of his or her own then valid Access Credentials;
5. input, upload, transmit, or otherwise provide to or through the Services or inoRain Systems, any information or materials that are unlawful or injurious or contain, transmit, or activate any Harmful Code;
6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, inoRain Systems, inoRain Content, or inoRain’s provision of the Services to You or any third party, in whole or in part;
7. remove, delete, alter, or obscure any trademarks, documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services, inoRain Systems, or inoRain Content, including any copy thereof;
8. access or use the Services, inoRain Systems, or inoRain Content in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other inoRain customer), or that violates any applicable Law;
9. access or use the Services, inoRain Systems, or inoRain Content for purposes of competitive analysis of the Services, inoRain Systems, or inoRain Content, the development, provision, or use of a competing software service or product or any other purpose that is to the inoRain’s detriment or commercial disadvantage;
10. use the Service or inoRain Content in any way that violates the Agreement or for any purpose or in any manner that is unlawful or prohibited; or
11. otherwise access or use the Services or inoRain Content beyond the scope of the authorization granted under Section 2.1.
3. Age Restriction. You represent and warrant that each Authorized User is at least 18 years old.
4. Service and System Control. Except as otherwise expressly provided in the Agreement:
1. inoRain has and will retain sole control over the operation, provision, maintenance, and management of the inoRain Systems and inoRain Content; and
2. You have and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services or inoRain Content by any Person by or through the Customer Systems or any other means controlled by You or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to inoRain; and (ii) results obtained from any use of the Services or inoRain Content.
5. Reservation of Rights. Except as set forth under Section 2.1., nothing in the Agreement grants to You or any third party any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, inoRain Systems, inoRain Content, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All rights, title, and interest in and to the Services, inoRain Systems, inoRain Content, and the Third-Party Materials are and will remain with inoRain and the respective rights holders in the Third-Party Materials.
6. Subcontractors. You acknowledge and agree that inoRain may, from time to time, at its discretion, engage third parties to perform the Services.
7. Country Restriction. You shall not use the Service if You are legally prohibited from receiving or using the Service under the Laws of the country in which You are a resident or from which You access or use the Service.
8. Suspension or Termination of Services. inoRain may, directly or indirectly, at any time, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services, or inoRain Content, without any liability to You or any third party, if: (a) inoRain receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires inoRain to do so; or (b) inoRain believes, in its good faith and sole discretion, that: (i) You or any Authorized User have failed to comply with any terms of the Agreement, including but not limited to the access or use of the Services beyond the scope of the rights granted or for a purpose not authorized under the Agreement; (ii) You or any Authorized User are, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) the Agreement expires or is terminated. This Section does not limit any of inoRain’s other rights or remedies, whether at Law, in equity, or under the Agreement.
1. Usage Limits; Upgrades; Downgrades. Unless otherwise agreed by the parties in an Order Form and subject to the limitation under this Section 5.1., the usage limit for the type of Subscription You purchased (as set forth on our Website or Your account) shall apply. inoRain shall notify You by email or alert You on Your account page, once you have reached 75% of the applicable usage limit in any given Subscription Term or such other percentage as we may determine from time to time. In the event You exceed the applicable usage limit, You acknowledge and agree that inoRain will immediately suspend the Services and Your access to inoRain Content until the end of the then Subscription Term. To restore the Services and Your access to the inoRain Content immediately, you may, at any time, upgrade Your Subscription to a higher tiered Subscription by making such selection on your account or emailing us at <[email protected]>. By clicking on the “Upgrade” button on the portal, You accept and agree to the terms (including but not limited to the Subscription Fees) applicable to such upgraded Subscription. inoRain shall transfer any remaining credits, if any, from Your previous Subscription plan to the upgraded Subscription plan. For the avoidance of doubt, You may not downgrade to a lower tiered Subscription plan prior to the end of the then current Subscription term.
2. Modifications: Downtime. Notwithstanding any active Subscriptions, inoRain may at any time, in its sole discretion, make changes to the Services, inoRain Systems, and inoRain Content that it deems necessary or useful to maintain or enhance the quality or delivery of the Services or comply with applicable Law. inoRain may, at any time, schedule maintenance work with respect to the Services, inoRain Systems, and inoRain Content and shall use commercially reasonable efforts to minimize any disruption to the Services to You.
3. Service Support. Unless otherwise agreed by the parties in writing, You will receive support services to the extent such support services are covered by the Subscription You purchased.
4. Data Backup. We will backup Your data if and only to the extent such Service is included in the Subscription You paid for. The Services do not replace the need for You to maintain regular data backups or redundant data archives to further secure Your data. WITHOUT LIMITING THE APPLICABILITY OF SECTIONS 8 AND 10, INORAIN HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
1. Confidential Information. From time to time, inoRain may disclose or make available to You information about inoRain’s business affairs, products, confidential intellectual property, trade secrets, and other sensitive or propriety information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as Confidential Information. You shall not disclose the Confidential Information to any Person or entity, except to Your employees or agents who have a need to know the Confidential Information. If You are compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, You shall: (a) promptly, and prior to such disclosure, notify inoRain in writing of such requirement; and (b) provide reasonable assistance inoRain in opposing such disclosure. You shall disclose only that portion of the Confidential Information that You are legally required to disclose.
2. Return of Confidential Information. On the expiration or termination of the Agreement, You shall promptly destroy all copies, whether in written, electronic, or other form or media, of inoRain’s Confidential Information and certify in writing to inoRain that such Confidential Information has been destroyed. Notwithstanding the foregoing, You may keep a copy of the Confidential Information solely for backup purposes and you agree to keep it confidential for as long as you keep such backup copy.
3. Equitable Relief. You acknowledge and agree that Your breach of this Section 6 would cause irreparable harm to inoRain for which monetary damages may not provide adequate compensation and that in addition to any other remedy available to inoRain, inoRain is entitled to seek injunctive relief against such breach or threatened breach, in each case without the requirement to post a bond or other security.
1. General. All rights, title, and interest in and to the Services, inoRain Systems, inoRain Content, Aggregated Data, all deliverables and work products created by inoRain for Customer under or in connection with the Agreement, including all improvements thereof and Intellectual Property Rights therein, are and will remain in the exclusive ownership of inoRain or its licensors, as applicable. Except as expressly set forth in Section 2.1, You have no right, license, or authorization with respect to any of the Services, inoRain Systems, inoRain Content, Aggregated Data, deliverables and work product. Any goodwill derived from the use by Customer of inoRain’s Intellectual Property Rights inures to the benefit of inoRain or its licensors, as the case may be. If Customer or an Authorized User (or any of their respective employees or agents) acquires any Intellectual Property Rights in or relating to any of deliverables or work product purchased under the Agreement, by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to inoRain or its licensors, as the case may be, without further action by either party.
2. Customer Data. You are and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 7.3.
3. Consent to Use Customer Data. You hereby irrevocably grant inoRain a non-exclusive, transferrable, sublicensable license to use Customer Data, including all Intellectual Property Rights pertaining thereto to the extent necessary for inoRain, its Subcontractors, and the inoRain Personnel to perform the Services, fulfill its obligations, and enforce and exercise its rights under the Agreement.
1. Customer Representations, Warranties, and Covenants. You represent, warrant, and covenant to inoRain that (i) You own or otherwise have and will have the necessary rights, consents, and authorizations in and relating to the Customer Data (and use thereof by inoRain, its Subcontractors, and inoRain Personnel) (ii) inoRain’s use and processing of the Customer Data do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any other rights of any third party or violate any applicable Law, including but not limited to data privacy laws.
2. DISCLAIMER OF WARRANTIES. ALL SERVICES, INORAIN SYSTEMS (TO THE EXTENT ACCESS IS PROVIDED TO YOU) AND INORAIN CONTENT ARE PROVIDED “AS IS.” INORAIN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, INORAIN MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, INORAIN SYSTEMS OR INORAIN CONTENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR BE ADEQUATE OR SUFFICIENT FOR YOU TO COMPLY WITH THE APPLICABLE LAWS INCLUDING BUT NOT LIMITED DATA PRIVACY LAWS AND INDUSTRY SPECIFIC REQUIREMENTS. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
1. Customer Indemnification. You shall indemnify, defend, and hold harmless inoRain and inoRain’s officers, directors, employees, agents, successors, and assigns (the “Indemnitees”) from and against any Losses from any Third-Party Claim in connection with or resulting from Your or an Authorized User’s (i) alleged infringement or misappropriation of a third party’s Intellectual Property Rights or other rights through the use of the Customer Data (ii) negligence or willful misconduct; (iii) use of the Services in a manner not authorized by the Agreement; (iv) use of the Services in combination with data, software, hardware, equipment, or technology not provided by inoRain or authorized by inoRain in writing; (v) violation of any applicable Law including but not limited to data privacy Laws, (vi) breach of any term of the Agreement including but not limited to the disclosure to inoRain of personally identifiable information of consumers on the subject line of emails sent by You, an Authorized User, employees or agents (vi) modifications to the Services or inoRain Content not made by inoRain.
2. Indemnification Procedure. inoRain shall notify Customer in writing of any action for which inoRain believes it is entitled to be indemnified pursuant to Section 9.1. Customer shall not settle any action on any terms or in any manner that adversely affects the rights of the Indemnitees without inoRain’s prior written consent. If Customer fails or refuses to assume control of the defense of such action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to Customer in each case in such manner and on such terms as inoRain may deem appropriate. inoRain’s failure to perform any obligations under this Section 9.2 will not relieve Customer of its obligations under Section 9, except to the extent that Customer can demonstrate that it has been materially prejudiced as a result of such failure.
IN NO EVENT WILL INORAIN OR ANY OF ITS AFFILIATES, SUBCONTRACTORS, OR LICENSORS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF INORAIN ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT OF THE SUBSCRIPTION FEE PAID TO INORAIN UNDER THE AGREEMENT FOR THE SUBSCRIPTION TERM IN WHICH THE CLAIM AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT INORAIN’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
1. Subscription Term; Renewal. The commencement and expiration of the Subscription Term of the Subscription You purchased shall be as set forth on the Order Form, on our Website, or on your account (e.g., dashboard). The terms of renewal for each Subscription plan are as follows:
1. Free Trial. The Free Trial period expires automatically on its expiration date as set forth either in the Order Form or the portal. Your access to the Services will be converted into Free Services pursuant to Section 4.2.
2. Free Services. The Subscription Term of the Free Services shall not expire but may be terminated by inoRain or HotelSmarters at any time pursuant to Section 4.2 or by either party pursuant to Section 11.2 through 11.4.
3. Paid Services.
2. Annual Subscription: The Subscription Term for the annual and multi-year Paid Services expires automatically on the last day of the Subscription Term You paid for unless suspended earlier by inoRain pursuant to Section 2.8 or terminated earlier by either party pursuant to Section 11.2 through 11.4. To renew Your annual Paid Services, You may purchase a new Subscription by submitting a new Order Form online at our Website or making the purchase on the portal or by signing a new Order Form. You acknowledge and agree that each renewal is subject to increases of the Subscription Fee under Section 4.7.
Monthly Subscription: The Subscription Term for the monthly Paid Services renews automatically on a month-to-month basis until a party sends to the other party a written notice of non-renewal pursuant to Section 11.3. You acknowledge and agree that each renewal is subject to increases of the Subscription Fee under Section 4.7.
3. Early Cancellation.
1. Without limiting inoRain’s right to terminate the Agreement under Section 4, You may terminate the Free Services at any time by making the selection in the portal or sending inoRain a written notice at <[email protected]>.
2. The Paid Services may not be terminated prior to the end of the paid Subscription Term but you may choose not renew Your Subscription for a subsequent Subscription Term pursuant to Section 11.3. Should you decide to cease the use of the Services in any given paid Subscription Term, You acknowledge that you will not be entitled to any refund of the paid Subscription Fee for the remaining period of the Subscription Term.
4. Notice of Non-Renewal. To prevent the monthly Subscription from renewing for another Subscription Term, either party may send the other party in writing a notice of non-renewal at least three (3) business days prior to the end of the then current Subscription Term. Customer may submit such written notice of non-renewal on the portal or by email to inoRain using the following email address: <[email protected]>. In the event such non-renewal, the Subscription Term expires on the last day of such Subscription Term. inoRain may send such written notice of non-renewal to Customer using the email address provided by Customer during registration.
5. Termination for Cause. inoRain may terminate the Agreement with immediate effect by giving written notice to Customer:
1. if Customer materially breaches the Agreement, and such material breach: (i) is incapable of cure; or (ii) if curable, remains uncured within thirty (30) days after the date of the written notice of breach from inoRain or HotelSmarters; or
2. if Customer (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
6. Effect of Termination or Expiration. Upon any expiration or termination of the Agreement, except as expressly otherwise provided in the Agreement:
1. all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
2. You and all Authorized Users shall immediately cease all use of any Services, inoRain Systems (to the extent access was granted) or inoRain Content and (i) promptly return to inoRain, or at inoRain’s written request, destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any inoRain Content or inoRain’s Confidential Information and (ii) permanently erase all inoRain Content and inoRain’s Confidential Information from all systems You directly or indirectly control;
3. inoRain shall immediately (i) cease all use of any Customer Data; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems inoRain directly or indirectly controls except a copy for archival purposes. Provided that You do not have any outstanding balance payable to inoRain, you may request from inoRain the return or delivery of a copy of Your Customer Data upon the termination or expiration of Your Subscription. You agree to bear all expenses and costs incurred by inoRain for such return or delivery of Customer Data. Notwithstanding the foregoing, inoRain may keep a copy of the Customer Data to the extent necessary for inoRain to protect its legal interests in a potential legal proceeding; and
4. Without limiting anything in the foregoing, inoRain may immediately disable all Customer and Authorized User access to the Services, inoRain Systems (if access was granted), and inoRain Content.
1. Entire Agreement. The Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and supersedes any prior or contemporaneous understandings, agreements, or representations by or between the parties hereto, written or oral to the extent they are related to the subject matter hereof.
2. Conflict. In the event of a conflict between the terms of the applicable Order Form and these Terms of Use, the terms of the Order Form shall prevail.
3. Force Majeure. inoRain shall not be liable or responsible to You nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of inoRain including, without limitation, acts of God, epidemic, pandemic (including but not limited to Covid-19), flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, local or national emergency measures, revolution, insurrection, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or telecommunication breakdown or power outage.
4. Assignment. You shall not assign any of Your rights or delegate any of Your obligations under the Agreement without the prior written consent of inoRain. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves You of any of Your obligations under the Agreement.
5. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
6. Governing Law and Arbitration. Unless stated otherwise in writing, any and all agreements between the parties shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. The United Nations Convention on the Contracts for the International Sale of Goods shall not apply. All disputes and controversies arising out of or relating to the Agreement, or the relationship of the parties shall be finally and with binding effect resolved under the International Arbitration Rules of the American Arbitration Association in front of a sole arbitrator. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by any court of competent jurisdiction. ANY CAUSE OF ACTION AGAINST INORAIN, REGARDLESS OF WHETHER IN CONTRACT, TORT, OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
7. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE AGREEMENT.
8. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth in the Order Form or to such other address that may be designated by the receiving party pursuant to this clause. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (provided that the recipient of such email shall have acknowledged receipt thereof in writing and further provided that a “read receipt” or other automatic email response shall not qualify for this purpose) or certified or registered mail (in each case, return receipt requested, postage prepaid) or to the extent possible, through inoRain’s online portal for subscribers. Except as otherwise provided in the Agreement, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
9. Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10. Survival. Provisions of the Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of the Agreement.
11. Amendment and Modification. The Agreement may be amended or modified in writing.
12. Waiver. No waiver by inoRain of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by inoRain. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.