LAST REVISED: May 15, 2018
THESE TERMS INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF ANY OF THE SITES TO BINDING ARBITRATION RATHER THAN A COURT. THE BINDING ARBITRATION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY ARBITRATION INDIVIDUALLY AND NOT AS PART OF A CLASS.
These terms of service (these “Terms”) apply to your access and use of the mobile applications, websites, emails, text messages and social media accounts (collectively, the “Application”) owned, operated or provided by Hotel Tonight, Inc. (“HotelTonight”, “we”, “our” or “us”) and any feature, content, tools and services accessible by means of the Application as well as the booking of hotel accommodations through the Service. The Application and these services are collectively referred to as the “Service.” These Terms do not alter in any way the terms or conditions of any other agreement you may have with HotelTonight for the Service (or any part thereof). If you are using the Service on behalf of an entity, you represent and warrant that you are authorized to accept these Terms on the entity’s behalf, and that the entity agrees to be responsible to HotelTonight if you violate these Terms.
Your use of the Service is conditioned upon the version of these Terms in force at the time of your use. We reserve the right to change these Terms at any time and you waive any right you may have to receive specific notice of such changes or modifications. All changes to these Terms are effective immediately when we post them and apply to use of the Application and Services thereafter. If you continue to access or use the Service following our posting of any changes to these Terms, we will consider that you have accepted the changes. Therefore, you must regularly review these Terms to ensure you understand the terms and conditions that apply to your access and use of the Service. If you do not agree to the changed Terms, you must stop accessing or using the Service. We also recommend you regularly update to the most recent version of our mobile applications to allow you to take advantage of new functionality and to ensure you have access to the most recent terms of service and promotional offer terms (changes thereto aren’t viewable until you update the apps). You recognize that changes to the terms and/or promotional offers may occur and that you will be bound to these changes, notwithstanding the fact that you were not aware of them due to your failure to update the app. Your use of the app, and failure to update to the most recent version, constitutes your agreement that HotelTonight shall have no liability to you, and you release Hotel Tonight, and its parent, officers, directors employees and agents, from and against any liability, for any changes to terms of service or promotional offers which were available but that which you were not aware of due to your failure to update the app.
Additional terms and conditions will apply to your reservation of some hotel accommodations. For some bookings through the Service, we will let you know in the booking path on our Application that a third party, Travelscape LLC, is the supplier for that particular booking.
If you have any questions regarding the use of the Service, please email us at email@example.com.
DEVICE USAGE TERMS AND CONDITIONS
You acknowledge and agree that your use of the Service must also be in accordance with the usage rules established by your mobile device platform or service provider.
REGISTRATION DATA; ELIGIBILITY
To access certain areas and features of the Service, you may be required to register with HotelTonight. If you register, you will (i) provide accurate, current and complete information about you as may be prompted by any signup, login and/or registration forms made available via the Service (the “Registration Data“); (ii) maintain and promptly update the Registration Data, and any other information you provide to HotelTonight, in order to keep it accurate, current and complete; and (iii) accept all risk of unauthorized access to the Registration Data and any other information you provide to HotelTonight.
HotelTonight is under no obligation to retain a record of your account or any data or information that you may have stored by means of your account or your use of the Service. You are only authorized to create and use one account for the Service and are prohibited from using alter egos or other disguised identities when using the Service. You are under no obligation to use or continue to use the Service and may stop using the Service without notice to HotelTonight.
You may not use the Service if you are under 18 years of age (or the age of majority in your jurisdiction).
GRANT AND RESTRICTIONS
Subject to the terms, conditions and limitations set forth in these Terms, HotelTonight grants you a non-exclusive, non-transferable and revocable license to use the Application on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by HotelTonight that replace and/or supplement the original Application, unless the upgrade is accompanied by a separate license, in which case the terms of that license will govern.
You will not do, and will not authorize or permit any third party to do, any of the following: (i) distribute or make the Application available over a network where it could be used by multiple devices at the same time; (ii) rent, lease, lend, sell, redistribute or sublicense the Application; (iii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the Application, any updates or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law) or (iv) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Application. If you violate any of the foregoing restrictions, your right to use of the Application will immediately cease, and you will have infringed the copyright and other rights of HotelTonight, which may subject you to prosecution and damages. HotelTonight reserves all rights not expressly granted to you in these Terms.
CONSENT TO USE OF DATA AND MOBILE COMMUNICATIONS
In exchange for HotelTonight providing you with access to the Service, you consent to HotelTonight collecting and using technical data, personal information and related information in connection with your use of the Service, including, but not limited to, contact information and technical information about your device, system and application software, and peripherals, that are gathered periodically to facilitate the features and functionality of the Service and of software updates, product support and other services. You also consent to our communicating with you about the Service.
COMPATIBILITY WITH MOBILE DEVICES
HotelTonight does not warrant that the Service will be compatible or interoperable with your mobile device or any other hardware, software or equipment installed on or used in connection with your mobile device.
The Service requires and uses phone service, data access and text messaging capabilities. Carrier rates for phone, data and text messaging may apply, and you are responsible for all of these charges.
HotelTonight attempts to be as accurate as possible. If you have reason to believe that a hotel room you booked through the Service or other product or feature does not meet the claims advertised within the Service, you must contact HotelTonight immediately (and in any case no later than three business days following the check-in date or feature request date). Your failure to contact us within this period may affect our ability to investigate and resolve your claim. Hotel content, including images, are provided by the hotels. HotelTonight and its suppliers are not responsible for the accuracy of images or hotel content.
HotelTonight makes no guarantee that the prices advertised through the Service represent (i) the lowest price for a hotel room in every area on any particular day or (ii) the published price for a hotel room on another website or publication not affiliated with HotelTonight in every area on any particular day.
BOOKING ROOMS THROUGH THE HOTELTONIGHT SERVICE
When you book a room using the Service, you are representing the following: (i) any credit information you supply is true and complete; (ii) charges incurred by you will be honored by your credit card company and (iii) you will pay the posted price for the hotel room, even if you are unable to consummate your stay in that hotel room. We will not issue Value Added Taxes (VAT) invoices for any purchases made through the Service. You are responsible for paying the hotel directly for any room upgrades or other incidental charges you make once you are at the hotel.
RATES, TAXES AND FEES
You acknowledge that HT provides the Service for a consideration (“facilitation fee”). The room rate displayed on the Application includes the room rate we pre-negotiated for the room we are reserving on your behalf and the facilitation fee. For some reservations, Travelscape, LLC may be the facilitator of your reservation. Please also refer to the Travelscape, LLC Terms and Conditions. When you book a room using the Service, we (or in some instances Travescape, LLC) facilitate your booking with the hotel and we will charge your method of payment the total reservation price, which includes the room rate displayed on the Application, plus any tax recovery charges, additional fees, and where applicable, taxes on HT’s fees. You agree that HT will charge you for the total reservation price. Except as described below, the tax recovery amount includes an estimated amount to recover the amount we pay the hotel for taxes owed by the hotel, including, without limitation, sales and use tax, occupancy tax, room tax, excise tax, value added tax and other taxes. In some cities, the tax recovery amount may include government imposed fees or other fees not paid directly to a taxing authority but still required by law. The amount paid to the hotel for taxes owed by the hotel may vary from the amount we estimate. The balance of the amount included under “Taxes and Fees” is a fee we retain as part of the compensation for our services and to cover the costs of your reservation, including customer service costs. The amounts for Taxes and Fees varies based on a number of factors including, without limitation, the amount we pay the hotel and the location of the hotel, and may include profit we retain.
Where applicable, our hotel suppliers determine all applicable taxes in the amount we are required to pay over to them. Except as described below, we are not the vendor collecting and remitting taxes to the applicable taxing authorities. We are not a co-vendor with the hotel. Tax rates and the type of taxes vary greatly by location.
For transactions involving hotels located within certain jurisdictions, the charge to your debit or credit card for Taxes and Fees includes taxes and government imposed fees that we are required to collect and remit to the jurisdiction with respect to amounts we retain as compensation for our services.
HOTEL OVERBOOKING AND CANCELLATIONS
If a hotel is unable to honor your reservation, contact us immediately, and we will work with you and the hotel to find you alternative accommodations (such as an available room at a different location). We may, in our sole discretion, provide HotelTonight credits for a booking cancelled or otherwise not honored by a hotel.
If your booking is cancelled by the hotel and the expiration date has passed for the HT credit that you used in making that booking, then HotelTonight may extend the expiration date for the HT credits at its discretion, and you would see the credits refunded in your HT account.
Some reservations are non-cancellable and non-refundable. Whether a reservation can be cancelled for a refund is displayed in the description of the hotel room prior to booking and also noted in your confirmation email. If your reservation is marked “Free Cancellation”, you can cancel through the HotelTonight App up until the time and date provided in your confirmation email. If you cancel prior to that time, the amounts paid or credits utilized in booking the reservation will be refunded to you. The method and account used to book will be the method and account refunded. If HT Perks Points or other promotional consideration were earned on a booking that was cancelled and refunded, the HT Perks Points or other promotional consideration will be removed upon cancellation. Similarly, if credit was used to book the refunded reservation, such credit will be returned to the user’s account, if it has not expired. If you cancel the booking after the expiration date of the HT credit used to make the booking, then you will not see the HT credits returned to your HT account, because the credits will have expired.
Reservations that are not marked “Free Cancellation” are not refundable.
For all promotional campaign terms, including use of personal invite codes, coupons and other promo codes, please see our Promotional Terms, which govern the use of all codes and coupons.
Please see our HT Perks Program Terms, which govern your participation in the HT Perks program and are incorporated by reference herein.
PERSONAL INVITE CODE USE
Your personal invite code may only be used for personal and non-commercial purposes. Feel free to share your invite code with your friends and family via email, Twitter feeds, Facebook pages, personal blogs, etc. where you are the primary content owner. However you cannot distribute your invite code on sites where you are a contributor but not the primary content owner (e.g., Wikipedia, coupon websites, app stores and app review websites) and you cannot promote your invite code via Search Engine Marketing (e.g., AdWords/Yahoo/Bing).
If you break any of the rules applicable to personal invite codes or promo codes, the HotelTonight Grinch may take all of your credits away, cancel a promo code and/or suspend your account.
When you use the Service or send emails to us, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by email or providing notices via the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that these communications be in writing. Electronic communications from us, including emails, may include marketing and promotional content.
Your use of the Service and your contact, interaction or dealings with any third parties arising out of your use of the Service is solely at your own risk. The hotels and other suppliers of HotelTonight are independent contractors and not agents or employees of HotelTonight. HotelTonight is not responsible for, and will not be held liable for, the acts, errors, omissions, representations, warranties, breaches or negligence of any of these hotels or suppliers for any personal injuries, death, property damage, loss, theft or other damages or expenses resulting therefrom.
USING THE HOTELTONIGHT “HT PROS” FEATURE
Use of the HotelTonight HT Pros feature requires that you have a valid account on the HotelTonight application.
• On-site Hotel and Third Party Services. HotelTonight may assist you with ordering additional products or services at the hotel you booked through the Service or with a third party outside your hotel. HotelTonight makes no guarantee about the prices charged. You are responsible for paying the hotel or third party directly for any products or services at your hotel you request through the HT Pros feature. HotelTonight makes no guarantee or warranty about any of these services or products, and you agree that HotelTonight will have no liability related to such services or products purchased.
• Recommendations. HotelTonight may, through the HT Pros feature, provide personalized recommendations for you for local products and services available from third parties. Your business dealings or correspondence with, or use of any products or services of, these third parties, and any terms, conditions, warranties or representations associated with such products or services, are solely between you and those parties. HotelTonight makes no guarantee or warranty about any of these products or services, and you agree that HotelTonight will have no liability related to products or services purchased or used by you.
• Not all products and services will be available at all times. We will advise as quickly as reasonably possible if we are unable to locate a product or service to meet your request.
• No Emergency Services. HotelTonight is unable to provide emergency assistance through the HT Pros feature. If you have an emergency, please call 911.
We will not book or request any products or services on your behalf which include alcohol, adult entertainment, services from a hotel other than the one at which you booked through the Service, or any other product or service we deem undesirable in our sole discretion. HotelTonight makes no guarantee or warranty about any of the products or services, and you agree that HotelTonight will have no liability related to such products or services.
USER CONTENT AND YOUR CONDUCT
The Service includes forums and other interactive areas or services (“Interactive Areas”) in which you or other users can create, post or share content, materials, data, information, text, photos and/or other materials (“User Content”). You are solely responsible for your use of such Interactive Areas and the User Content you share. You hereby grant HotelTonight a perpetual, irrevocable license to (i) use, adapt, modify, create derivative works from and publicly display any User Content you post, upload or otherwise provide to HotelTonight and (ii) use the name and profile picture associated with your User Content submission. You acknowledge that HotelTonight may choose to provide attribution of your User Content at our discretion.
You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Service any of the following:
• User Content that is libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, violent, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;
• User Content that is illegal or unlawful, that would constitute, encourage or provide instructions for a criminal offense, or that would otherwise create liability or violate any local, state, provincial, national or international law;
• User Content that may infringe or violate any patent, trademark, trade secret, copyright, right of privacy, right of publicity or other intellectual property right, or any other right, of any party;
• Unsolicited promotions, political campaigning or commercial messages (SPAM), or any chain messages or User Content designed to deceive or trick a user of the Service;
• Private information of any third party including, but not limited to, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; and
• Viruses, corrupted data or other harmful, disruptive or destructive files or code, script or other software designed to automate any functionality on the Service without HotelTonight’s express written consent.
You further agree that you are solely responsible for your conduct while using the Service and that you will not do any of the following in connection with the Service or its users:
• Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service in any manner;
• Harass, threaten, or intimidate Service employees with inappropriate language or behavior;
• Collect any personally identifiable information about other users (except as specifically authorized by HotelTonight), or intimidate, threaten, stalk or otherwise harass or cause discomfort to other users of the Service;
• Use the Service for any commercial purpose;
• Use the Service for any illegal or unauthorized purpose or engage in, encourage or promote any illegal activity or any activity that violates these Terms or any other rules or policies established from time-to-time by HotelTonight;
• Create an account, post any content, or otherwise use the Service if you are not at least 18 years of age;
• Modify, adapt, hack or emulate the Service;
• Circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Service or users of the Service or third- parties; and
• Infringe upon or violate the rights of HotelTonight, our users or any third party.
HotelTonight takes no responsibility and assumes no liability for any user conduct or for any User Content posted, stored or made available via the Service. HotelTonight will not be liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter through the Service. Your use of the Service, including any Interactive Areas, is at your own risk. Enforcement of the user content and conduct rules set forth in these Terms is solely at HotelTonight’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Service will not contain any content that is prohibited by these rules.
HotelTonight may provide third-party content via the Service and may provide links to webpages and content of third parties (collectively, “Third-Party Content”) as a service to those interested in this information. HotelTonight does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding Third-Party Content including, but not limited to, its accuracy or completeness. HotelTonight is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use Third-Party Content at their own risk.
ADVERTISEMENTS AND PROMOTIONS; THIRD-PARTY PRODUCTS AND SERVICES
HotelTonight may run advertisements and promotions from third parties via the Service or may otherwise provide information about or links to third-party products or services via the Service. Your business dealings or correspondence with, or participation in promotions of, these third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and those third parties. HotelTonight is not responsible or liable for any loss or damage incurred as the result of any such dealings or promotions or as the result of the presence of non-HotelTonight advertisers or third-party information accessible via the Service.
The HotelTonight name, “HT”, “Book in the Moment”, “Impulse Deals”, “Plan Less. Live More.” and “h” bed logo and other trademarks used by HotelTonight are trademarks or registered trademarks of Hotel Tonight, Inc. in the United States and in numerous international jurisdictions. These marks may not be reproduced or used without HotelTonight’s prior written permission. You may not use any metatags or any other “hidden text” using “HotelTonight” or any other name, trademark or product or service name of HotelTonight without our prior written permission. In addition, the look and feel of the Service, including all page headers, custom graphics, button icons and scripts, are the service mark, trademark and/or trade dress of HotelTonight and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos made available via the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
The Service (including, but not limited to, the Application) contains the valuable proprietary content of HotelTonight and our licensors and is protected by copyright and other intellectual property laws and treaties. You will not use the Service (including, but not limited to, the Application) except in its intended manner in accordance with the terms and conditions of these Terms.
TERMINATION OR MODIFICATION OF APPLICATION
HotelTonight reserves the right to change, suspend, remove, discontinue or disable access to the Service (including, but not limited to, the Application) at any time without notice. In no event will HotelTonight be liable for the removal of or disabling of access to any portion or feature of the Service (including, but not limited to, the Application).
If you breach any of the terms or conditions of these Terms or HotelTonight discontinues the Application, these Terms will automatically terminate. In the event of the termination of these Terms for any reason, the license granted to you in these Terms will immediately terminate and you must immediately stop all use of the Service (including the Application) and destroy or erase all copies of the Application in your possession or control. All of the sections of these Terms that by their nature should survive termination will survive any termination of these Terms. For avoidance of doubt, the License section will not survive termination of these Terms. Any use of the Service after termination is unlicensed and is in violation of the copyright and other rights of HotelTonight. HotelTonight and our affiliates reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in our sole discretion.
We reserve the right to investigate complaints or reported violations of these Terms and to take any action we deem appropriate, including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators or other third parties, and disclosing any information necessary or appropriate to such persons or entities relating to your Registration Data, usage history, posted materials, IP addresses and traffic information.
INFORMATION AND PRESS RELEASES
The Site may contain information and press releases about us. We disclaim any duty or obligation to update this information. Information about companies other than ours contained in any press release or otherwise should not be relied upon as being provided or endorsed by us.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THE APPLICATION) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HOTELTONIGHT DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS AND THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THE APPLICATION) WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT HOTELTONIGHT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. HOTELTONIGHT DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY HOTELTONIGHT OR OUR AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY.
You will defend, indemnify and hold us, our independent contractors, service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened third-party suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to (i) your conduct; (ii) your violation of these Terms or your violation of the rights of any third party; or (iii) any User Content you share.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL HOTELTONIGHT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, BUSINESS, CONTRACTS, REVENUE OR ANTICIPATED SAVINGS; LOSS OR CORRUPTION OF DATA; BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THE APPLICATION), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF HOTELTONIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL HOTELTONIGHT’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE (INCLUDING, BUT NOT LIMITED TO THE APPLICATION) EXCEED $100.00 UNITED STATES DOLLARS.
THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, HOTELTONIGHT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT, RECKLESS OR INTENTIONAL ACTS OR OMISSIONS.
BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION.
REPEAT INFRINGER POLICY
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, HotelTonight has adopted a policy of terminating, in appropriate circumstances and at HotelTonight’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. HotelTonight may also at our sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that any material made available via the Service infringes upon any copyright which you own or control, or that any link made available via the Service directs users to material that infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to receive notification of claimed infringement: Copyright Agent
Full address of Designated Agent to which notification should be sent: 901 Market St, Suite 310, San Francisco, CA 94103
Telephone Number of Designated Agent: (800) 208-2949
Facsimile Number of Designated Agent: (800) 208-6367
Email Address of Designated Agent: firstname.lastname@example.org
See 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages including, but not limited to, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
APPLICABLE LAW AND VENUE
The Terms and your use of the Service, including, but not limited to, the Application will be governed by and construed in accordance with the laws of the State of California, applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. In the event of any matter or dispute arising out of or in connection with these Terms that is not subject to binding arbitration, you and HotelTonight will submit to the exclusive jurisdiction of the state and federal courts in the State of California.
You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported into any U.S. embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Application for any purposes prohibited by United States law, including, but not limited to, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
US GOVERNMENT RIGHTS
The Application and related documentation are “Commercial Items,” as that term is defined in 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as these terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through § 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users only as Commercial Items and with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
Only you and HotelTonight are entitled to enforce these Terms. No third party will be entitled to enforce any of the terms and conditions herein.
OUR CORPORATE ADDRESS
Hotel Tonight, Inc.
901 Market St, Suite 310
San Francisco, California 94103
*You may also contact our member support team at email@example.com