Terms & Conditions
This Agreement is made on the Agreement Date between Hotel TV Company and the Customer.
Terms defined below and in the Order Form apply to this Agreement. References to Clauses are to clauses of these General Terms;
Acceptancemeans acceptance of the System in accordance with Clause 3;
Satisfaction of Completion means the satisfaction of completion form which is signed by the client on completion of the installed by Hotel TV Company to the Customer under Clause 3;
Acceptance Datemeans the date of Acceptance or deemed Acceptance of the System under Clause 3.2;
Associate means any group company of the relevant party being any holding company, subsidiary, or holding company of any subsidiary as those terms are defined in section 736 of the Companies Act 1985 (as amended);
Business Daymeans any day other than a Saturday, Sunday or public holiday in the Jurisdiction;
Early Termination Fee means the Early Termination Fee calculated in accordance with the formula set out in the Pricing Schedule;
Entertainment Content means any or all of the mixture and hours of Entertainment Content as selected by Customer in the Order Form, but otherwise to be determined by Hotel TV Company and notified to Customer;
Force Majeure means any cause preventing either party from performing its obligations under this Agreement which arises from events beyond that party’s reasonable control;
Guest means any Hotel guest or other end user of the System;
Hotel Content means the hotel content provided on and via the Platform;
Hotel Equipmentmeans other than the System, any equipment or materials within or connected to the Hotel which are owned or operated by Customer and which are required to provide the Services;
Hotel Network means the communication infrastructure which is installed in the Hotel;
Hotel Survey meansthe technical survey of the Hotel carried out by or on behalf of Hotel TV Company prior to entering this Agreement and designed to provide outline technical detail of the ease of installation of the System;
Hotel Systemsmeans the Hotel’s installed telecommunications, Hotel Network, TV distribution, property management, any Customer provided DSL line as indicated in the Order Form and other Hotel installed information technology and power supply infrastructure and systems;
Implementation Planmeans the System delivery and installation plan and timeline which will include the parties’ installation obligations, a copy of which is attached to this Agreement;
Intellectual Property Rightsmeans patents, design rights, copyright, database rights, topography rights, trade marks, rights in know-how and confidential information and other intellectual property rights, (registered or unregistered) including applications for registration and all similar intellectual property rights anywhere in the world in respect of the System and/or the Services;
Internet Content means any content which is accessible via the Internet;
Order Form means the order form attached to these General Terms;
Professional Services means any services provided by Hotel TV Company to customise the Platform for the Customer;
Platform means the user interface and navigation portal provided as part of the Software whether delivered to the TV or to the laptop or any other device from time to time;
Rejection Notice means the rejection notice served in accordance with Clause 3.2;
Rental Equipment means that equipment to be rented to the Customer and identified in the Order Form as amended by the Acceptance Certificate;
Retail Equipment means that equipment to be purchased outright by the Customer from Hotel TV Company and identified in the Order Form as amended by the Acceptance Certificate;
Rooms means the Hotel rooms in which the Services are to be provided as indicated in the Order Form;
Sales Tax means Value Added Tax or any equivalent or replacement sales tax in the Jurisdiction;
Services means the services to be provided by Hotel TV Company as indicated in the order form including the Software (part of which is the Platform);
Service Level Agreement means the service level agreement attached to this Agreement;
Software meansany software to be supplied by Hotel TV Company under this Agreement and includes any Upgrades and/or System Enhancements supplied from time to time and specifically includes the Platform;
System means the system to be supplied by Hotel TV Company under this Agreement which, together with the Hotel Systems and Hotel Equipment, will provide the Services. System includes, but is not limited to, the Software, the Retail Equipment and the Rental Equipment;
System Enhancements means any modification or enhancement to the Software that adds new product features, significant new functionality and/or significant performance enhancement and which is to be offered to the Customer under Clause 5;
Technical Roommeans a room within the Hotel which the Customer will make available to Hotel TV Company to house the head-end server for the System and any other System components identified by Hotel TV Company in the Implementation Plan or from time to time;
Term means the period from the Agreement Date to the Termination Date;
Termination Date means the date of termination of this Agreement;
TVs means any televisions which form part of the Hotel Equipment;
TV Content means any broadcast Digital Television content made available to Guests as part of the System (responsibility for the license rights to which are to be provided by the Customer);
Upgrades means any modification or enhancement to the Software supplied under this Agreement which is released for general use by Hotel TV Company’s customers during the Term;
2.1 Hotel TV Company has prepared the Implementation Plan. The Implementation Plan is intended to provide an indicative (but not definitive) guide to the System installation timetable. The Customer acknowledges that notwithstanding any indicated timetable in the Implementation Plan, Hotel TV Company’s guide lead time for installation is commencement 12 weeks following signature of this Agreement and that Hotel TV Company is reliant on availability of equipment, third party suppliers and Hotel access to be able to install the System. Each party will comply with its obligations in the Implementation Plan.
2.2 To the extent that the Hotel Network is not owned by Hotel TV Company, the Customer grants to Hotel TV Company an irrevocable right of use over the Hotel Network for the Term. If the Customer requests Hotel TV Company to take ownership or responsibility for the Hotel Network, Hotel TV Company will assess the suitability of the Hotel Network to provide the Services and notify the Customer of improvements or alterations required before it is prepared to adopt this responsibility.
2.3 Subject to the Customer’s compliance with Clause 2.1 and Clause 2.2, Hotel TV Company will deliver and install the System in accordance with the Implementation Plan.
2.4 If during installation of the System Hotel TV Company encounters installation problems not identified in the Hotel Survey and likely to cause material delay, it will quickly inform the Customer providing notice of the reason for such delay. On receipt of such notice the parties will in good faith use all reasonable efforts to agree a revised installation timetable.
2.5 If following the Hotel Survey but before installation of the System the Customer materially changes the Hotel Systems, Hotel TV Company will be entitled to charge the Customer for any reasonable additional installation costs incurred as a result.
2.6 After installation of the System Hotel TV Company will train nominated Hotel staff in its day to day operation and use.
3. Acceptance Testing
3.1 Hotel TV Company will test the functionality and performance of the System and will get the client to sign the Satisfaction of Completion form when these tests have been successfully completed. The Customer will nominate a representative to attend the acceptance tests
3.2 The Customer will accept the System by signing the Satisfaction of Completion form provided by Hotel TV Company. If this is received by post it should be signed and returned to Hotel TV Company within 5 business days. Acceptance will be deemed to have occurred (and Satisfaction of Completion signed by the Customer) 7 Business Days after the date of receipt by the Customer of the Satisfaction of completion form unless the Customer (acting in good faith) serves a Rejection Notice before such date stating that there is a defect in the System. Any Rejection Notice must include a description of the reasons for the rejection to enable Hotel TV Company to rectify the identified defects.
3.3 On receipt of any Rejection Notice Hotel TV Company will use all reasonable efforts to rectify the identified defects as soon as possible after which time the process set out in Clauses 3.1 to 3.3 will be repeated.
3.4 The Customer acknowledges that Hotel TV Company’s ability to invoice the Customer for the Services is dependent upon issue of the satisfaction of completion form. Accordingly, the Customer agrees that it will promptly sign the satisfaction of completion form and will not withhold signature (a) where problems arise in the operation of this System after installation which would properly be dealt with under the Service Level Agreement; or (b) where broadcast Digital TV is unavailable but Analogue TV is available; or (c) where the Customer has not yet approved the Hotel Content created by Hotel TV Company. The Customer also agrees to pay Hotel TV Company all revenues earned from the operation of the System until the Acceptance Date.
3.5 Hotel TV Company is entitled in any phased or staged installation to present a Satisfaction of Completion form for any completed part of that installation, and the provisions of this Clause 3 shall also apply to that Satisfaction of Completion form as if it was a Satisfaction of Completion form issued on completion of the total installation.
4. Supply of Services
4.1 From the Acceptance Date Hotel TV Company will provide the Services in accordance with this Agreement.
4.2 Hotel TV Company has no obligation to provide the Services before the Acceptance Date.
4.3 Hotel TV Company will maintain and support the System in accordance with the Service Level Agreement.
4.4 Hotel TV Company may alter the Service delivery method, provided that the Customer is given prior written notice of the alterations and that any alterations are at Hotel TV Company’s cost and do not materially affect the delivery or quality of the Services.
4.5 Hotel TV Company’s supply of the Services is subject to legal or supplier restrictions imposed on it from time to time. The Customer will comply with any such restrictions informed to it by Hotel TV Company from time to time.
5. Additional Services
5.1 The Customer may order additional services and/or products from Hotel TV Company from time to time by issuing a written request with details of the additional products and services required. If the parties agree terms for the supply of such requested services and/or products these General Terms shall apply to such change request as if it were the original order.
5.2 Hotel TV Company will provide Upgrades released by it to the Customer free of charge.
5.3 Hotel TV Company will offer System Enhancements to the Customer at prices to be determined by Hotel TV Company.
5.4 Any Upgrade or System Enhancement Hotel TV Company provided to the Customer may be subject to a new Implementation Plan and Acceptance procedure, in which case they will be prepared and carried out in accordance with Clauses 2 and 3.
5.5 Any Upgrades or System Enhancement accepted by the Customer will become part of the System with effect from their Acceptance Date.
6. Title and Risk
6.1 Title in all Rental Equipment will remain with Hotel TV Company at all times even if such Rental Equipment is integrated into the Hotel infrastructure or into any Retail Equipment. Subject to the rights of the Customer in the Hotel Content described in paragraph 22 below title in all Software will remain at all times with Hotel TV Company or its licensors.
6.2 Title in all Retail Equipment will pass to the Customer on receipt by Hotel TV Company of payment in full for such equipment.
6.3 For the purpose of insurance risk and complying with its obligations in this Agreement, risk in the Rental Equipment and Retail Equipment will pass to the Customer upon delivery to the Hotel.
7.1 The Customer will pay any Retail Amount to Hotel TV Company according to the terms set out on the order form.
7.2 Other than where specifically agreed in the Pricing Schedule attached to the Order Form or otherwise, invoices under this Agreement will be paid within 20 Business Days of invoice date. Payment will be by such payment method (including electronic payment or direct debit) prescribed by Hotel TV Company from time to time.
7.3 All payments under this Agreement will be paid in full in the Contract Currency without withholding, counterclaim, set off, abatement or other deduction whatsoever unless specifically allowed under this Agreement or agreed in writing by the intended recipient of such payment.
7.4 All sums set out in this Agreement are stated exclusive of Sales Tax which will be payable by the Customer at the then prevailing rate.
7.5 The parties are entitled to charge default interest on any amount not paid on its due date at the higher of the statutory rate applying in the Jurisdiction or 9% per annum. Interest will accrue from the due date until payment in full and be payable on demand.
8. Customer’s Obligations
8.1 During the Term the Customer will:
8.1.1 Provide Hotel TV Company’s employees and subcontractors with all reasonable access to and use of the Hotel, Hotel Systems and Hotel Equipment and information and assistance to enable Hotel TV Company to comply with its obligations under this Agreement;
8.1.2 Provide Hotel TV Company with access to Hotel Systems, Hotel Equipment and the Customer’s accounts and records as necessary to determine the Customer’s compliance with this Agreement;
8.1.3 Ensure that the Hotel Network (unless Hotel TV Company has taken on responsibility for this) and other Hotel Systems and the Hotel Equipment are compatible and interface with the System and are operated and maintained to enable efficient operation of the System and provision of the Services. In particular the Customer will not use or transmit any traffic on the Hotel Network which will impair the operation of the System;
8.1.4 Obtain and maintain any permissions required to install any satellite dishes or operate any televisions or the Services in the Hotel;
8.1.5 Provide a Technical Room in the Hotel (to be clean, secure, dry, well ventilated and maintained at a temperature of between 15-20 degrees centigrade with a level of less than 50% humidity) and ensure that no unauthorised third party gains access to such Technical Room;
8.1.6 Ensure that no third party accesses, obstructs, covers, moves, tampers or interferes with any component of the System;
8.1.7 Provide Hotel TV Company with all electrical power, dedicated telephone lines and equipment as reasonably requested by Hotel TV Company in the Implementation Plan or otherwise as necessary to install or operate the System;
8.1.8 Ensure that the Hotel is stocked with sufficient spares of Retail Equipment;
8.1.9 Dispose and replace any failed items of Retail Equipment after allowing Hotel TV Company to remove any Rental Equipment installed in it before such disposal or replacement;
8.1.10 Provide Hotel TV Company’s employees or subcontractors with free local accommodation (to include use of up to 4 guest rooms, parking, business phone facilities and meals each day) during any onsite installation and maintenance works;
8.1.11 Ensure that the System is not used in any way (other than as specifically instructed by Hotel TV Company) which may affect the capacity or operation of the System or the provision or quality of the Services;
8.1.12 Not access any part of the System without Hotel TV Company’s consent;
8.1.13 Not create any security interest of any kind whatsoever on or over the System or any part of it or dilute any rights Hotel TV Company may have under this Agreement;
8.1.14 Obtain and maintain insurance cover with a reputable insurance company to cover:
(a) The replacement cost of the System and/or any component against loss or damage other than normal wear and tear or the wilful or negligent acts of Hotel TV Company or its subcontractors;
(b) Business interruption (including any Force Majeure event) which will or could affect the ability of the Customer to make payments due to Hotel TV Company under this Agreement;
(c) Product and public liability to levels typical of a hotel of the size, classification and location of the Hotel and the Customer will, on request, provide Hotel TV Company with copies of all such insurance policies and related materials. All monies received by the Customer under such policies will be applied first in replacement or repair of the System, in payments of amounts due under this Agreement or in respect of any claim made against the Customer;
8.1.15 be responsible for any taxes or levies relating to the Retail Equipment and Rental Equipment and will make any required declarations to the competent authorities.
8.2 The Customer shall not provide, nor allow any third party to provide, any service, equipment or platform which is capable of competing with the Services or the Platform. Any breach of this clause by the Customer will be deemed a material breach of this Agreement and Hotel TV Company will serve notice on the Customer to remedy this breach within 2 (two) weeks, failure of which will entitle Hotel TV Company to either
8.2.1 Terminate this Agreement (in which case the Early Termination Fee will be payable by the Customer); or
8.2.2 Increase the fees payable by the Customer to Hotel TV Company under this Agreement.
9. Intellectual Property
9.1 Hotel TV Company and its licensors will at all times remain the owners of the Intellectual Property Rights.
9.2 Hotel TV Company grants the Customer a single user, non-exclusive, non-transferable licence to use the Software to the extent necessary to receive the Services in the Hotel.
9.3 The Customer will not:
9.3.1 Use any part of the Software except as expressly set out in this Agreement;
9.3.2 Alter, obscure or remove any trade marks and/or notices affixed to the Software;
9.3.3 Modify or alter any part of the Software nor merge it with any other software or system;
9.3.4 Make more than one copy of the Software and then, only for security back up purposes;
9.3.5 Except where expressly permitted by law, attempt to decompile, disassemble or reverse engineer or copy the Software contained within the System or attempt to do any of these things.
The rights to use and adapt the System, the Software and the Portal set out in this Agreement describe the full extent of changes able to be made by the Customer without Hotel TV Company’s specific approval in writing. Hotel TV Company will be entitled to remove or disable any unauthorised usage from time to time.
9.4 Hotel TV Company may, from time to time, use open source software to create parts of the System and to make System Enhancements. Such software is issued under licence from the GNU Project, BSD, Apache, The Free Software Foundation, and IBM. The Customer acknowledges that ownership of all Intellectual Property Rights and any other rights in such software are reserved entirely to the organisations who issue these licences. Copies of the relevant licences may be found at http://www.opensource.org/licenses.
9.5 The Customer will immediately notify Hotel TV Company if it becomes aware of any actual, threatened or suspected infringement or third party claim in respect of the Intellectual Property Rights. Following any such notification, the Customer will, at Hotel TV Company’s cost, provide Hotel TV Company with all reasonably requested information and assistance so Hotel TV Company can protect and/or defend the Intellectual Property Rights against any such infringement. The Customer will not make any announcement or admission in respect of any Intellectual Property Rights claim.
9.6 Hotel TV Company will defend, indemnify, and hold the Customer harmless (including reasonable legal fees) against any third party claim, suit, or proceeding brought against the Customer arising from or relating to allegations that the System or the Services infringe any third party intellectual property rights PROVIDED THAT the Customer has not through its own or its agents or Guests acts or omissions caused such infringement. To satisfy such obligation, Hotel TV Company may, at its sole discretion:
9.6.1 Replace or modify the System or the Services or part of them provided they are functionally similar to those previously installed and operated; or
9.6.2 Obtain a license to ensure the continuing provision of the Services; or
9.6.3 If the solutions provided for under either Clause 9.6.1 or Clause 9.6.2 are not available or feasible on commercially reasonable terms, terminate this Agreement.
This Clause 9.6 sets out the Customer’s sole and exclusive remedy and Hotel TV Company’s sole obligation with respect to any such claim.
10.1 Hotel TV Company warrants to the Customer that:
10.1.1 It has the authority to enter into and carry out its obligations under this Agreement;
10.1.2 It will use all reasonable care and skill and comply with all applicable laws and regulations in carrying out its obligations under this Agreement;
10.2 The Customer warrants that:
(a) It has the authority to enter into and carry out its obligations under this Agreement; the Customer further acknowledges to Hotel TV Company that it has specific authority under any franchise and/or management and/or similar contract to which the Hotel is subject to enter into a commitment of the nature set out in this Agreement for the duration of this Agreement or has obtained the requisite authority to do so;
(b) It will comply with all applicable laws and regulations in carrying out its obligations under this Agreement
(c) From the date of the Hotel Survey no alterations have been made to the Hotel or the Hotel Systems (save for alterations to the Hotel Network required under the Implementation Plan) which will or might affect the installation or operation of the System.
10.3 Except as expressly stated in this Clause 10, all other warranties and conditions whether express or implied by statute, common law or otherwise are hereby excluded to the maximum extent permitted by law.
11.1 Notwithstanding any other term in this Agreement, each party has unlimited liability for death or personal injury caused by its negligence.
11.2 Neither party will be liable to the other for loss of profits, business, contracts, revenue, anticipated savings, goodwill, loss of or damage to data, business interruption, or any indirect or consequential loss or damage whether in contract, tort or otherwise, which arises under or in connection with this Agreement..
11.3 Other than where specifically stated otherwise in this Agreement and save for amounts owing from either party under this Agreement from time to time (which shall not be limited by this Clause), each party’s total liability in connection with this Agreement will not exceed £500,000 for any one claim or £1m in respect of all claims whenever made.
12. Term and Termination
12.1 This Agreement starts on the Agreement Date.
12.2 Unless terminated earlier, this Agreement will continue for the Initial Term and thereafter until either party gives the other three months prior written notice to expire at the end of the Initial Term or any anniversary of the end of the Initial Term.
13. Early Termination and Suspension
13.1 Either party may immediately terminate this Agreement by giving notice in writing to the other with immediate effect, if the other party:
13.1.1 Fails to pay any sum due under this Agreement within 40 days of the due payment date;
13.1.2 Commits a material breach of this Agreement (and in the event of a material breach which is capable of remedy, fails to do so within 30 Business Days of written notice giving full particulars of the breach).
13.2 Hotel TV Company may, by giving notice in writing to the Customer, suspend provision of the Services for any Customer breach of this Agreement which entitles Hotel TV Company to terminate this Agreement under Clause 13.1.
13.3 Any such suspension will continue until the Customer has remedied the relevant breach in full.
13.4 If Hotel TV Company serves notice to suspend provision of the Services under Clause 13.2, all Hotel TV Company obligations under this Agreement will be suspended for the duration of the suspension but all Hotel TV Company rights and all Customer obligations (including, without limitation, all payment obligations) will continue in full force and effect during such period.
13.5 Any notice served under Clause 13.1 and/or 13.2 will take effect from the date of actual or deemed receipt by the recipient.
14. Consequences of Termination
14.1 On termination of this Agreement the Customer will:
14.1.1 Immediately pay all amounts due and accrued to Hotel TV Company up to the Termination Date;
14.1.2 Provide to Hotel TV Company, its agents or subcontractors access to the Hotel to enable Hotel TV Company to remove all Rental Equipment from the Hotel including, without limitation, any equipment integrated into any Retail Equipment;
14.1.3 If terminated by Hotel TV Company pursuant to Clause 8.2.1 or 13.1, immediately pay to Hotel TV Company the Early Termination Fee.
14.2 On termination of this Agreement, Hotel TV Company will promptly remove all Rental Equipment from the Hotel.
15. Force Majeure
15.1 If any party is affected by a Force Majeure event it will promptly notify the other party.
15.2 Subject to the parties specific obligations in Clauses 7 (Payment) and 8.1.15 (Insurance)neither party will be liable for any failure or delay in performing any of its obligations under this Agreement if the failure or delay is due to any Force Majeure event.
15.3 A party may terminate this Agreement by giving notice to the other in the event that a Force Majeure event prevents the other party from performing its material obligations under this Agreement for a continuous period of 60 Business Days.
16. Assignment and Transfer
16.1 Subject to Clauses 16.2 and 16.3, the Customer may not either as part of a sale of the Hotel or its business and assets or for any other reason novate, assign, transfer, sub-contract, sub-license, charge or otherwise dispose of any rights or obligations in this Agreement (each of the preceding events defined for the purpose of this clause as a “Disposal”) without Hotel TV Company’s prior written consent.
16.2 In the event of any actual or attempted Disposal the Customer will remain responsible to Hotel TV Company for all obligations under this Agreement by both itself and by the third party to whom such Disposal is concluded (including without limitation payment of the Early Termination Fee).
16.3 In the event of any Disposal, if the entity to whom the Disposal is made uses the System it will be deemed to have accepted the terms of this Agreement and be responsible for the obligations as if it were the Customer. No action or omission by Hotel TV Company after any Disposal will be deemed to constitute acceptance of or consent to the Disposal unless Hotel TV Company specifically indicates this in writing.
16.4 Hotel TV Company may, by written notice to the Customer, novate, assign, transfer, sub-licence, charge or otherwise dispose of its rights and obligations in this Agreement to any of its Associates, to a funding bank or to any third party who acquires substantially all assets needed to perform Hotel TV Company’s obligations under this Agreement. Hotel TV Company may without notice to the Customer assign its rights to all or any of the fees or revenues payable under this Agreement to any funding party from time to time.
16.5 Hotel TV Company may sub-contract any of its obligations under this Agreement provided that it remains ultimately responsible to the Customer for complying with those obligations.
17. General Provisions
17.1 All notices given in connection with this Agreement must be in writing, signed by an authorised person and sent to the relevant e-mail or postal address set out on the Order form. Any notice will be deemed received:
17.1.1 When delivered by hand; or
17.1.2 If sent by mail, at the time of receipt on the e-mail date; or
17.1.3 if sent by recorded or special delivery, at the time of delivery receipt; or
17.1.4 When sent by post on the 2nd Business Day following posting.
17.2 During the Term and for two years afterwards both parties will keep confidential all information received or obtained in connection with this Agreement unless:
17.2.1 Such disclosure is required to enable a party to comply with its obligations under this Agreement;
17.2.2 The information is now or subsequently comes into the public domain other than in breach of the Agreement
17.2.3 It can be demonstrated by written record to have been known by the party using or disclosing it before that party acquired the same under this Agreement; or
17.2.4 It subsequently comes lawfully into the possession of the party using or disclosing it from a third party;
17.2.5 Disclosure is required by law or by a court of competent jurisdiction.
17.3 This Agreement does not create any partnership, joint venture, agency or similar relationship between the parties.
17.4 This Agreement is governed by English law. In the event of a dispute in connection with this Agreement, the parties submit to the exclusive jurisdiction of the English courts.
17.5 This Agreement sets out the entire agreement and understanding between the parties in respect of the subject matter of this Agreement and supersedes any previous arrangements or agreements between the parties.
17.6 No variation of this Agreement will be valid unless it is in writing and signed by or on behalf of all of the parties.
17.7 Unless expressly agreed, no variation will constitute a general waiver of any provisions of this Agreement, nor will it affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of variation, and the rights and obligations of the parties under this Agreement will remain in full force and effect, except and only to the extent that they are so varied.
17.8 If and to the extent that any provision of this Agreement is held to be illegal, void or unenforceable, such provision will be given no effect and will be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement.
17.9 Waivers of any rights or remedies under this Agreement may only be given in writing. No failure or delay by any party in exercising any right or remedy provided by law under or pursuant to this Agreement will impair the right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any right or remedy will preclude any other or further exercise of it or the exercise of any other right or remedy.
17.10 Each party will comply with the provisions of the relevant data protection laws. The parties agree that, in relation to personal data of Guests, Customer is at all times the data controller and Hotel TV Company, the data processor.
17.11 A person who is not a party to this Agreement (other than a bank or other person in favour of whom Hotel TV Company has created an interest in this Agreement or receivables arising pursuant to this Agreement by way of security as part of a financing transaction or an allowed or approved assignee or transferee under this Agreement) will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
18. Specific Provisions – Digital TV
18.1 These terms apply if Customer has selected Digital TV as a product option in the Order Form attached to this Agreement.
18.2 Digital TV Content means any or all of the Digital TV and/or radio content to be made available by Customer.
18.3 Hotel TV Company will ensure that Guests can access the Digital TV Content via the on-screen menu in the Rooms.
18.4 Customer acknowledges that it is fully responsible for the Digital TV Content and therefore agrees to ensure that: (a) it obtains, maintains and complies with all licences, subscriptions and permissions required to receive and provide the Digital TV Content to Guests; (b) it provides Hotel TV Company with all decryption codes, cards and keys required to receive the Digital TV Content; (c) unless otherwise agreed, it provides and maintains all aerials, antennas’ and satellite dishes required to receive the Digital TV Content; (d) no other digital, cable, satellite or terrestrial provided content will be made available to Guests; (e) all Digital TV Content may be legally provided to Guests in the Rooms; (f) no Digital TV Content is reproduced, copied, distributed, interrupted or altered, except as expressly permitted by this Agreement; and (g) Guests are informed of any Digital TV Content which may not be suitable for children and that such content may be blocked by Guests at Room level by PIN or other parental control technology. Customer will be solely liable for obtaining, maintaining and complying with any subscriptions and/or licences required from, and paying all royalties and other fees due to, music performing right societies or other similar agencies and to collecting societies representing retransmission rights in respect of the communication to the public of the Digital TV Content provided under this Agreement in the Hotel. For the avoidance of doubt Customer’s obligation extends to licences from the performing right societies representing both songwriters/music publishers and sound recordings owners, and extends to any copying of music that takes place in the course of providing the service. Hotel TV Company will clear all other rights in respect of the Digital TV Content.
18.5 Hotel TV Company may alter or withdraw access to any or all of the Digital TV Content if required to do so by any law, regulation, broadcaster or competent authority or to protect the Hotel TV Company image or reputation.
18.6 Hotel TV Company will use all reasonable endeavours to ensure access to the Digital TV Content under this Agreement, but cannot guarantee access to any specific content. More specifically, the Customer acknowledges that it is responsible for any costs incurred by Hotel TV Company as a result of a broadcaster changing the frequency and/or satellite for any Digital TV Content unless covered under the maintenance agreement.
18.7 Unless otherwise set out in this Agreement, Hotel TV Company may not dictate the price at which Digital TV Content is supplied to Guests by the Customer. However, if a supplier of such content places any restriction on the manner in which such content is made available to Guests, Hotel TV Company shall be entitled to pass through such restrictions to the Customer, and the Customer shall be bound by them.
19. Hotel Management Services
19.1 These terms apply if the Customer has selected Hotel Management Services as a product option in the Product Schedule attached to this Agreement
19.2 Hotel Management Services means a function enabling Hotel staff to communicate with each other using the televisions connected to the System.
19.3 The Customer acknowledges that it is solely responsible for the Hotel’s use of the Hotel Management Services.
19.4 Hotel TV Company will not be held liable for any misuse or abuse of the Hotel Management Services by the Hotel Staff that may result in a third party suffering injury or loss.
19.5 The Customer acknowledges that the Guest Announcement and Promotional Ticker functionality which form part of the Hotel Management Services are not designed to replace any emergency facilities such as a fire alarm system in the Hotel and should not be used in place of any such emergency services.
19.6 Should the Customer use the Guest Announcement and Promotional Ticker functionality as an emergency service it hereby indemnifies and holds Hotel TV Company harmless from any and all liability relating to the operations and results of such use.
19.7 Hotel TV Company is only responsible for the functioning of the Guest Announcement and Promotional Ticker functionality when used for non-emergency information purposes.
20.1 On termination of this Agreement, for whatever reason, Hotel TV Company will be entitled to access all televisions in the Hotel to remove Hotel TV Company’s digital cards or digital set top boxes installed in or connected to such televisions.
20.2 Customer acknowledges that Hotel TV Company procures Entertainment Content from third party suppliers under licence. Hotel TV Company will use all reasonable endeavours to ensure continuity of supply of such content, but cannot guarantee the supply of any specific content.
20.3 Hotel TV Company may freely subcontract its obligation to supply any Entertainment Content to Customer under this Agreement provided that the quality and quantity of such content is not materially affected.
20.4 Customer acknowledges that the speeds at which certain Services are delivered to the Rooms are dependent on variables such as size of the DSL Line and network traffic in the Hotel. The Customer accepts that during peak hours delivery of Services to Rooms may be slower.
20.5 Unless otherwise set out in this Agreement, Hotel TV Company may not dictate the price at which Entertainment Content is supplied to Guests by the Customer. However, if a supplier of such content places any restriction on the manner in which such content is made available to Guests, Hotel TV Company shall be entitled to pass through such restrictions to the Customer, and the Customer shall be bound by them.
20.6 Customer acknowledges that only third party equipment approved by Hotel TV Company or third party equipment that meets any specifications provided by Hotel TV Company shall be used with the System. Customer is solely liable if it uses any third party equipment not approved by Hotel TV Company and will indemnify and hold Hotel TV Company harmless from all loss, damage, expense, or liability in connection with such use.
20.7 Hotel TV Company will use all reasonable endeavours to ensure access to TV Content under this Agreement, but cannot guarantee access to any specific content. More specifically, the Customer acknowledges that it is responsible for any costs incurred by Hotel TV Company as a result of a broadcaster changing the frequency and/or satellite for any TV Content; this includes instances where additional equipment or new Televisions may be needed to continue the provision of such TV Content under this Agreement.
20.8 In the event of any regulatory or legislative change which affects Hotel TV Company’s ability to perform the Services, Hotel TV Company may, withdraw in order to comply with its obligations subsequent to such change: (a) impose additional conditions and obligations on the Customer; or (b) amend or alter the Services to the extent necessary to comply with such changes.
Professional Service Terms
21. Hotel Content
21.1 These terms apply to the provision, customisation and/or hosting of Hotel Content by Hotel TV Company. In accordance with paragraph 1 of the Product Schedule the Customer has ordered all or some of these Services.
21.2 The Customer will be permitted to select the number of specific menu options on the user interface specified in the Product Schedule which will be linked to the Hotel Content.
21.3 The Hotel Content will be hosted by Hotel TV Company on the Portal. For the avoidance of doubt the Hotel Content will only be able to be accessed by Guests in the Hotel.
21.4 The Hotel Content will be a walled garden experience to the Guest and as such all external links will be disabled other than those to the content of authorised partners. Authorised content for this purpose include only (a) the Hotel’s own site content (b) content of any chain of which the Hotel is part (c) content provided by third parties who provide travel related services such as car hire or airlines (d) content providing information on services local to the hotel such as excursions.
21.5 If the Customer agrees to Hotel TV Company designing the Hotel Content, Hotel TV Company will build the Hotel Content in line with a specification agreed with the Customer. On completion of the design, Hotel TV Company will provide the designs to the Customer for approval before loading them into the Portal. If the Customer provides its own Hotel Content, this will be built by the Customer in line with Hotel TV Company’s technical and other specifications provided from time to time.
21.6 During the Term Hotel TV Company will host the Hotel Content in the Platform. Desired changes to the Hotel Content may be notified to Hotel TV Company from time to time and altered and charged on Hotel TV Company’s price terms from time to time.
21.7 Hotel TV Company may suspend or withdraw Hotel Content if required to do so by any site owner, law, regulation or competent authority.
21.8 The Customer confirms to Hotel TV Company that the Hotel Content
(a) will not infringe the copyright, trademark or other intellectual property rights, right of publicity or right to privacy of any third party;
(b) Will not violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law; and
(c) Will not be unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable.
21.9 Hotel TV Company may modify or remove any Hotel Content that it considers to be abusive, defamatory, in violation of the copyright, trademark right or other intellectual property right of any third party.
21.10 Hotel TV Company shall issue an invoice in respect of its fees for providing these services and the Customer shall pay Hotel TV Company the Charges set out in such invoice within 20 days of the date of the invoice.
21.11 All Intellectual Property Rights in the Hotel Content shall remain with the Customer. Other than this all Intellectual Property Rights in the Platform shall remain with Hotel TV Company.