F.I.T. ALLOTMENT AND NET RATE AGREEMENT– ADDITIONAL TERMS AND CONDITIONS
These Additional Terms and Conditions and the F.I.T. Allotment and Net Rate Agreement, each hereby made a part hereof (collectively, this “Agreement”) is entered into by and between the Resort and the Company as such terms are defined in the F.I.T. Allotment and Net Rate Agreement. All capitalized terms as used herein that are not specifically defined shall have the meaning ascribed to them in the F.I.T. Allotment and Net Rate Agreement.
1. UPDATES: For the entire term of the Agreement, the parties shall each comply with all of their respective requirements set forth herein and as they may be amended by Hilton Domestic Operating Company Inc. (“Hilton”) from time to time in Hilton’s sole discretion and posted on this website.
2. HILTON INTELLECTUAL PROPERTY; BROCHURE: You hereby covenant and agree not to use Hilton names, or any variation thereof, or the names “Hilton” or “Hilton Resorts & Resorts or the stylized “H” or other logotypes, trademarks, service marks, trade names or other “Hilton Intellectual Property” (defined below) now or hereafter used by Hilton or its affiliates, subsidiaries, the Resort or their owners, and shall not use any “metatags”, “scumware”, “spyware”, search word preference or any other service that results in you being referenced in regard to Internet searches for such marks, attracts Internet users to its web sites, call centers or other services, or otherwise use any such marks, directly or indirectly, in any way in connection with any of your business or operations, without the prior written approval of Hilton (except those items set forth in this Agreement that have been pre-approved by the Resort to be used as creative by you, for which written approval is not required) and, in the event of such approval, only in the manner and at such times as shall be prescribed in such approval. You shall add the following Hilton brand terms to your negative keyword list: “Hilton”. Any keyword violations by you shall be removed within 30 days of our notification to you.
You may not utilize or distribute software downloads that potentially enable diversions of payments from other third-party intermediaries that provide similar services. You shall not, without written express prior consent, use any e-mail or search engine marketing to promote Hilton, us or your rights hereunder.
You shall not claim to be Hilton or the Resort in any pay-for-placement and other search engines. You agree to comply with the requirements of the CAN-SPAM Act, GDPR (defined below) and other similar legislation in your distribution of email that contains messaging regarding this Agreement, Hilton or the Resort.
Subject to the foregoing, the Resort hereby gives you the right, solely for the purposes of marketing and obtaining reservations for our Resort under this Agreement, to use our Resort name, subject to our right to refuse particular uses at any time and from time to time, including without limitation, approval of any and all advertising referencing such marks. We will provide you our Resort name or logo and applicable photos of the Resort for inclusion in your tour brochure or voucher. You may not make any alterations to the Hilton logo, or our Resort’s name, logo or our Resort photos or use them in any manner or in any materials other than your tour brochure and vouchers without our prior written approval. As part of your Agreement, upon request you must send to us two (2) copies of your printed brochure/voucher for our files as applicable.
Except as set forth in this Agreement, you shall have no rights of any kind with regards to Hilton.com, Hilton’s services, Hilton images, messages, codes, trade names and trademarks, and all other Hilton intellectual property (the “Hilton Intellectual Property”). You agree to observe Hilton’s exclusive rights as to the Hilton Intellectual Property within all pay-for-placement and other search engines.
If you violate any of the terms of this section, we may terminate this Agreement in accordance with the termination provisions, in additon to any other legal rights and remedies available to Hilton and/or the Resort under the law.
3. COMPLIANCE WITH LAWS: Each party will be responsible for ensuring compliance by such party with all applicable foreign and domestic laws, codes, regulations, ordinances and rules with respect to the party’s obligations under this Agreement and the services to be provided by each party hereunder, including but not limited to any laws and regulations governing package and tour travel operators/organizers. A party may cancel this Agreement without any liability to either party if that party reasonably believes it is necessary to do so in order to comply with that party’s respective obligations under applicable laws, rules or regulations, including (but not limited to) if the other party is added to any restricted party listings as described in this section.
4. INDEMNIFICATION: To the fullest extent permissible by law, Company shall fully indemnify, defend and hold harmless Hilton and the Resort and each of their respective owners, managers, partners, subsidiaries, affiliates, officers, directors, employees and agents (collectively, the “Hilton Indemnified Parties”) from and against any losses, liabilities, claims, demands, damages, penalties, costs or expenses (including reasonable attorneys’ fees) (collectively, the “Losses”) awarded against or incurred or paid by Hilton Indemnified Parties in connection with or related to any claim or action brought by a third party (collectively, “Claims”) against the Hilton Indemnified Parties arising out of or related to or connected with this Agreement, but only to the extent caused by (i) a violation or breach of any of the terms or conditions of this Agreement by Company or any of Company’s Affiliates, distributors, subcontractors, agents, servants, licensees, invitees or employees, and any other person claiming by, under or through Company to any extent (“Company’s Parties”); or (ii) the provision of intermediary services hereunder by Company or any of Company’s Parties; (iii) the infringement or misappropriation of any patent, copyright, trade secret or other intellectual property or proprietary right of third parties by Company or any of Company’s Parties; or (iv) the violation of any applicable laws and regulations, including without limitation, any privacy or data protection law, regulation or requirements by Company or any of Company’s Parties. Nothing in this Section 4 shall require Company to indemnify the Hilton Indemnified Parties from Losses that have been caused by the negligence or willful misconduct of the Hilton Indemnified Parties or the breach by the Hilton Indemnified Parties of any of the terms or conditions of this Agreement. For the avoidance of doubt, Company is not responsible for, and assumes no liability for, lodging accommodation related services that the Resort provides or fails to provide to any guest booking through Company’s intermediary services.
To the fullest extent permissible by law, the Resort shall fully indemnify, defend and hold harmless Company, Company’s Affiliates, officers, employees, agents and contractors (the “Company Indemnified Parties”) from and against any Losses awarded against or incurred or paid by the Company Indemnified Parties in relation to any Claim made against Company Indemnified Parties arising out of, related to, or connected with this Agreement, but only to the extent caused by (i) a violation or breach of any of the terms and conditions of this Agreement by the Resort or (ii) the negligence, gross negligence or intentional misconduct of the Resort’s employees, agents, or contractors. Nothing in this Section 4 shall require the Resort to indemnify the Company Indemnified Parties from Losses that have been caused by the negligence or willful misconduct of the Company Indemnified Parties or the breach by the Company Indemnified Parties of any of the terms or conditions of this Agreement.
The Hilton Indemnified Parties or the Company Indemnified Parties, as the case may be (the “Indemnified Party”), shall provide prompt notice to the Company or the Resort, as the case may be (the “Indemnifying Party”), of any matters with respect to which the indemnification obligations set forth above may apply. Any failure by the Indemnified Party to provide prompt notice shall not excuse the Indemnifying Party of its indemnification obligations hereunder unless and solely to the extent that a court of competent jurisdiction determines that such failure materially prejudices the Indemnifying Party’s ability to defend or settle any such Claim. The Indemnified Party may, by written notice to the Indemnifying Party, require the Indemnifying Party, at its expense, to resist such Claim or take over the defense of any such action or proceeding and employ counsel for such purpose, such counsel to be subject to the prior approval of the Indemnified Party. If the Indemnifying Party assumes control of such action or proceeding as set forth above, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with such action or proceeding and shall have the right to participate in any such defense with its own counsel and at its own expense. The Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party. If the Indemnifying Party does not assume control of the response and defense of a Claim, then the Indemnified Party shall have the right to assume control of the defense of such Claim at the expense of the Indemnifying Party.
Finally, under no circumstances may Company unilaterally reduce or offset any amounts otherwise owed to Resort on account of any specific guest complaints related to their guest stay. Instead, Company must promptly notify the Resort of any such guest complaint so that the Resort may participate in the investigation and handling of the guest complaint. Any adjustments to the guest’s package charges must be discussed in good faith and mutually agreed by Company and Resort in each instance.
Neither Company nor the Resort will be liable to the other party or its Affiliates for any incidental, indirect, special, consequential, punitive or exemplary damages or losses of any kind (including lost or anticipated revenues or profits relating to the same) arising from any Claim relating to this Agreement or any of the services provided hereunder, whether such Claim is based on warranty, contract, tort (including negligence or strict liability) or otherwise, even if the parties are advised of the possibility or likelihood of the same. The foregoing limitations on damages will not apply: (i) to the extent the liability arises from a party’s willful misconduct or (ii) to the extent that such damages are awarded to a third party in connection with a Claim.
5. INSURANCE: You agree to obtain and keep in force General Liability Insurance covering your contractual obligations hereunder with limits of not less than USD$1,000,000 per occurrence. Resort agrees to maintain general liability insurance with limits not less than USD$2,000,000 per occurrence, covering liability for personal injury, property damage, liquor liability, and automobile liability, as well as Workers Compensation insurance per applicable laws and Employers Liability insurance. Upon written request, each party shall make evidence of coverage available to the other party. Notwithstanding the foregoing, the Resort participates in Hilton’s general liability insurance program, therefore proof of such insurance coverage is satisfied by Hilton’s Memorandum of Insurance available at: http://www.marsh.com/moi?client=0291.
6. GOVERNING LAW: The Agreement will be governed by and interpreted pursuant to the laws of the state and country in which the Resort is located.
7. DISPUTE RESOLUTION: The parties agree to use good faith efforts to resolve any disputes by submitting them to their senior representatives. If the parties are unable despite such negotiations to resolve a dispute, then the dispute will be resolved in a court of competent jurisdiction in the city in which the Resort is located (or closest available location).
8. ATTORNEYS’ FEES: The parties agree that in the event that any dispute arises in any way relating to this Agreement, the prevailing party in any arbitration or court proceeding will be entitled to recover an award of its reasonable attorney’s fees, costs and pre and post judgment interest.
9. NON-ASSIGNMENT: Neither party may assign this Agreement or any part hereof to any third party without the prior written consent of the other party except that Resort may assign this Agreement to a new owner and/or manager of the Resort.
10. INDEPENDENT CONTRACTOR: This Agreement does not create any legal relationship of principal buyer or seller, partnership or joint venture. In your capacity as an independent contractor, you are assisting us by helping us to sell our rooms and only in the manner described in this Agreement. Since you are an independent contractor, the parties do not anticipate any tax implications or tax consequences that could possibly otherwise arise out a different characterization of your status. You shall not without Hilton’s and/or our prior written consent: (i) bind (or hold yourself out as being able to bind) Hilton or the Resort to any contract or create any liability against Hilton or the Resort nor describe yourself as anything other than an independent contractor of Hilton or the Resort; and/or (ii) make or give any representation, warranty, statement or claim about Hilton or the Resort or any of the facilities in any Hilton hotel except as and to the extent specifically authorized in writing by Hilton.
11. PRIVACY: Given that Company will obtain and/or have access to Personal Information (as defined in the Standards specified below), Company agrees to be bound by and comply with the Hilton Service Provider Data Standards set forth at http://www.hiltondistribution.com/privacyanddataprotectionstandards.htm (the “Standards”), as such Standards may be amended from time to time. Company hereby acknowledges and agrees that the Standards are hereby incorporated herein and forms a part of this Agreement as if the entire text of the Standards were set forth herein. In the event of a conflict between the terms of this Agreement and the Standards, the Standards will control, unless and to the extent that a provision of this Agreement is more protective of Personal Information or if this Agreement expressly states that it shall control.
12. TRANSMISSION AND USE OF GUEST DATA: Hilton and the Resort handle guest personal information in a manner consistent with Hilton’s Global Privacy Statement. Hilton and the Resort are committed to collecting, protecting, and using personal information in a reasonable manner in accordance with laws applicable to Hilton and the Hotels, including the European Union’s General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”). Pursuant to GDPR, each party acts as an independent “Data Controller” with respect to its processing of personal information in connection with this Agreement, and each party will comply with its respective obligations as such. To the extent that either party provides personal data to the other party pursuant to this Agreement, the party supplying the personal data confirms that it has consent or another legal basis to provide the personal data to the receiving party. For clarity, nothing in this Agreement limits a party’s ability to use an individual’s personal data to the extent directed by, consented to or requested by such individual. Company represents that it has authority from each guest to share guest data with Hilton and the Resort as provided herein to secure the reservation(s). Hilton and the Resort agree to treat such guest data in accordance with Hilton’s Global Privacy Statement, and Hilton and the Resort will be a “Data Controller” for such data.
13. FORCE MAJEURE: Neither party shall be responsible for failure to perform this Agreement if circumstances beyond their control (including, but not limited to: acts of God; terrorist attacks in the city in which the Resort is located; or declared war in the country in which the Resort is located) make it illegal or impossible or commercially impracticable to perform under this Agreement. The affected party may terminate this Agreement without liability upon providing written notice to the other party within ten (10) days of the occurrence.
14. MISCELLANEOUS: A failure or delay of any party to this Agreement to enforce at any time any of the provisions of this Agreement, or to exercise any option which is hereby provided, or to require at any time performance of the provisions hereof, shall in no way be construed a waiver of, nor preclude the exercise of, any of the provisions of this Agreement.
15. TAXES: Company acknowledges that certain government agencies and other persons could assert claims that tax may be owed on the compensation earned by Company under this Agreement and Company assumes all risk, responsibility and liability relating to such tax and the possibility of other claims regarding such tax. This risk, responsibility and liability are unconditional. Neither Hilton nor any Resort will bear any liability with respect to any amount of tax that compensation earned by Company under this Agreement.
16. CERTAIN DEFINED TERMS. If used in the Agreement, the following defined terms shall have the following meaning:
“Affiliate” means a person or entity, directly or indirectly, controlled by, controlling, or under common control with another person or entity.
“Occupancy Taxes” means any and all transaction taxes, fees and assessments, including without limitation any and all applicable value added taxes or goods and services taxes, imposed by a federal, national, provincial, state or local government upon the occupancy of the Resort, including, without limitation, sales taxes, lodging taxes, resort taxes, room taxes, occupancy taxes, tourism development or assessment fees or taxes, gross receipts taxes and transient hospitality taxes.
Last Updated: 22 September 2021