IMPORTANT! THIS IS A BINDING LEGAL AGREEMENT (this "Agreement"). PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE.
This Agreement governs your use of this Internet site located at https://www.twahotel.com/ as well as other sites, applications, tools and utilities containing a link to this Agreement (collectively, the "Site") and is by and between MCR Investors LLC and its affiliates that own, manage, operate and/or provide services to hotels managed by an affiliate of MCR Investors LLC (collectively, "MCR,” “we”, “us” and/or “our”) and you, on behalf of yourself and anyone for whom you are facilitating bookings ("you"). By accessing, using, viewing, transmitting, caching, storing and/or otherwise utilizing the Site, the services or functions offered in or by the Site and/or the contents of the Site in any way, you have agreed to each and all of the terms and conditions set forth below, without limitation or qualification, and waive any right to claim ambiguity or error in this Agreement. CERTAIN TERMS, INCLUDING BUT NOT LIMITED TO THE REQUIREMENT TO ARBITRATE DISPUTES AND THE WAIVER OF CLASS ACTION LAWSUITS PROVISION, MAY RESTRICT YOUR RIGHTS TO BRING A CLAIM IN A COURT OF LAW. If you do not agree to each and all of these terms and conditions please do not use the Site and leave the Site immediately. We reserve the right, at our sole and absolute discretion, to change, modify, add, or remove portions of these terms at any time without notice and, unless otherwise indicated, such changes will become effective immediately; therefore, please check these terms periodically for changes. Your continued use of the Site following the posting of changes to this Agreement will mean you accept those changes.
The Site may provide you with content and services based on your location and/or your MCR account, including providing you with directions to or within a MCR-managed hotel or property, sending you special offers or offering you suggestions of hotel activities, services or promotions.
Credit Card Information
Restrictions on Use of Materials
Forums and Public Communication
Content Linked to the Site
Limitation of Liability
Access and Interference
Class Action, Collective Action, Representative Action and Class-Wide Arbitration Waivers
Mandatory Arbitration Except for Matters Relating to MCR Intellectual Property
Digital Signature Provisions
Notice and Procedure for Making Claims of Copyright Infringement
The Site may tailor information, offers, and other content based on your browsing habits on the Site and your geographic location, as well as your MCR account.
The Site is available only to individuals and entities that can form legally binding contracts under applicable law. Without limiting the foregoing, the Site and the services offered by the Site are not available to minors. If you do not qualify, you may not use the Site. You warrant that you are eighteen years of age or older to use this Site, including to reserve a room on this Site. You agree to be financially responsible for all of your use of this Site (as well as for use of your account by others, including without limitation minors living with you). You agree to supervise all usage by minors of this Site under your name or account. If you are under the age of eighteen, you may contact the hotel directly for assistance.
You also warrant that you are legally authorized to make the travel reservations and/or purchases for either yourself or for another person for whom you are authorized to act and that all information supplied by you or members of your household in using this Site is true and accurate. You may only use this Site to make legitimate reservations or purchases for you or for another person for whom you are legally authorized to act and you further agree that you will not use this Site for any other purposes, including without limitation, to make any speculative, false or fraudulent reservations, or any reservation in anticipation of demand. You understand that overuse or abuse of the reservation facilities of this Site may result in your being denied access to such facilities.
For any reservations or other services for which fees may be charged, you agree to abide by the terms or conditions of purchase imposed, including, but not limited to, payment of all amounts when due and compliance with all rules and restrictions regarding availability of rates, or services. You shall be completely responsible for all charges, fees, duties, taxes, and assessments arising out of the use of this Site.
We reserve the right to cancel or modify reservations where it appears that a customer has engaged in fraudulent or inappropriate activity or under other circumstances where it appears that the reservations contain or resulted from a mistake or error, or from an attempt to circumvent MCR policies, terms or conditions.
Some rates have special eligibility requirements such as AAA or AARP membership. It is your responsibility to verify that you qualify for the rate that you have booked. Hotels are not obligated to honor rates if you do not qualify.
The Site may display or provide information regarding specific programs, offers, or promotions (“Promotional Offers”). Any such Promotional Offer is subject to its specific terms, conditions and restrictions. Please refer to and read carefully the terms, conditions and restrictions of each Promotional Offer. MCR reserves the right to alter or withdraw any Promotional Offer at any time without notice. Each Promotional Offer is void where prohibited by law.
Credit Card Information
The storage of credit card information on the Site (if available) is entirely optional. It is not required to use the Site. Saving credit card information may help expedite your reservation process in the future. You will be solely responsible for updating any credit card information that you provide, and such information may only be maintained until the expiration date of the credit card. You acknowledge that MCR may communicate this information for the purpose of facilitating reservations or as requested by you, including through applications on any mobile devices that you utilize that provide MCR with your account information or other MCR credentials or if you have established a link with such devices.
Currency rates are based on publicly available sources and should be used as guidelines only. Room rates are guaranteed only in hotel's local currency. Currency quotes are not updated every day. The currency information supplied by this web site is believed to be accurate, but MCR and/or its parents, subsidiaries and affiliates do not warrant or guarantee such accuracy.
Functionality is not guaranteed with all types of mobile devices in using this Site. In addition, the connection to a mobile device will not work if your device is not configured for SSL encryption. You should contact your service provider directly for technical assistance or any questions. Please note that security features vary by carrier/service provider and mobile device. Additional minutes/charges may apply and may be charged by your mobile carrier/service provider.
From time to time, keyless entry functionality may be available at a participating hotel to guests who have downloaded a keyless entry application, who have a valid reservation for a single guest room, and who have elected to use keyless entry. Valid reservations may not include certain reservations made through meeting planners, travel agents, wholesalers, and third-party websites.
In order to use keyless entry you must ensure that all necessary settings and required network communications are enabled and correct, including, without limitation, allowing and enabling push notifications to be sent to your mobile device. In addition, you acknowledge and agree that keyless entry can only be used when bluetooth functionality is enabled on your mobile device and that mobile keys can only be issued to or deleted from the approved application when your mobile device has network connectivity. If your mobile device does not have network connectivity at any time, you may only be able to use valid mobile keys already installed in the approved application. Mobile keys licensed to you will be specific to your mobile device and you will have to re-download the authorized application and re-register for keyless entry if you get a new mobile device.
If keyless entry is available to you, you acknowledge and agree that your guest room number for a valid reservation will be sent to your mobile device through the approved application and will be viewable to anyone with access to your mobile device through the approved application. You are solely responsible for restricting use of the approved application on your mobile device and keeping your mobile device secure—for example, by using passwords or other security functions necessary to restrict access to your mobile device or the approved application. You agree that you will not allow a third party to use your mobile device to access the approved application or use keyless entry on your mobile device.
If at any time while you have a reservation that can be accessed via keyless entry your mobile device is lost, stolen, or hacked, you agree to immediately contact the front desk of the hotel where the reservation was made and to follow any instructions that the hotel or that MCR provides, including, without limitation, deleting or consenting to the deletion of any mobile keys from your mobile device. Neither MCR nor any participating property will be responsible for any problems or claims that may result from your failure to adequate secure your device or to notify the applicable hotel in the event that your mobile device is lost, stole, or hacked or is otherwise no longer in your possession or control or is compromised.
You agree that you will only use keyless entry in connection with a valid reservation for the intended purposes of checking-in and of using your mobile device to access designated areas that you are lawfully permitted to access, including the guest room assigned to you. You shall not use keyless entry for any other purpose and you may only use keyless entry on a mobile device that you control.
Copyright and patent laws and international treaty provisions protect keyless entry software and mobile keys. Any reproduction or redistribution of the software or mobile keys is expressly prohibited by law and may result in severe civil and criminal penalties. Without limiting the foregoing, copying or reproduction of the software or mobile keys for further reproduction or redistribution is expressly prohibited. MCR grants to you a limited, non-exclusive, non-transferable, revocable license to use keyless entry functionality on your mobile device while it is in your possession and under your control and only for use as otherwise set forth in these terms.
Restrictions on Use of Materials
All materials contained in the Site are the copyrighted property of MCR, or its subsidiaries or affiliated companies and/or third party licensors. No material from the Site or any Internet site owned, operated, licensed, or controlled by us or by other parties for our benefit (including, for example, outsourced sites, private label sites, software as a service sites, etc.) may be copied, “scraped,” “mirrored”, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. For purposes of these terms, the use of any such material on any other Web, Internet, intranet, extranet or other site or computer environment is prohibited. All trademarks, service marks, trade names and trade dress are proprietary to us. You may not frame or utilize framing techniques to enclose any of our trademarks, logos, or other proprietary information (including images, text, page layout, or form) without our prior express written consent. You may not use any meta tags or any other "hidden text" utilizing our name, trademarks or other proprietary information without our prior express written consent.
Unless indicated otherwise, all names, logos, trademarks, service marks, trade dress and trade names are proprietary to MCR or our licensors in the United States and other countries and may not be used by anyone for any purpose without our prior express written consent. We consider our names, logos, trademarks, service marks, trade dress and trade names to be valuable assets, and take infringement of them seriously.
In the event you download software from the Site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") are licensed to you by us or third party licensors for your use in connection with the Site only. We do not transfer title to the Software to you. You own the medium on which the Software is recorded, but we (or third party licensors) retain full and complete title to the Software and all intellectual property rights therein. You may not redistribute, sell, de-compile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.
MCR’s policy does not allow us to accept or consider creative ideas, suggestions, or materials other than those that we have specifically requested. We employ a talented staff and consultants who may be working on the same or similar ideas. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by our professional staff and/or consultants might seem to others to be similar to their own creative work. Please do not send us any unsolicited original creative materials of any kind. While we do value your feedback on the Site and the services offered in connection therewith, we request that you be specific in your comments with respect to the same, and not submit any creative ideas, suggestions, or materials (unless specifically requested by us).
If, at our request, you send, directly or through a Forum, certain specific submissions or, despite our request, you send us creative suggestions, ideas, notes, drawings, concepts, communications, text, photographs, images, illustrations, graphics, sound recordings, video, audio-video clips, or other content or information (collectively, the "Submissions"), the Submissions shall be deemed, and shall remain, our property. None of the Submissions shall be subject to any obligation of confidence on our part and we shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, we shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the universe and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions.
By making a Submission, you agree that such Submission is non-confidential, non-proprietary, and may be disseminated or used by MCR. MCR is not required to use any Submission. You are solely responsible for your Submission, the consequences of making a Submission, and your reliance on any Submission. MCR is not responsible for the consequences of any Submission. MCR is not responsible for screening or monitoring Submissions made to this Site by users. If notified by a user of a Submission allegedly in violation of this Agreement, MCR may investigate the allegation and determine in good faith and its sole discretion whether to remove such Submission. MCR will have no liability or responsibility to users for performance or nonperformance of such activities. You agree that you will not make any Submission that is, in whole or in part, libelous; scandalous; inflammatory; discriminatory; defamatory; false; threatening; vulgar; obscene; pornographic; profane; abusive; harassing; invasive of another's privacy; hateful or bashing; aimed at gender, race, color, sexual orientation, national origin, religious views, or disability; in violation of local, state, national, or international law; or that infringes on, or violates, any right of any party. Additionally, you agree that you will not: (a) make any Submission that is an advertisement or solicitation of business; (b) disrupt the normal flow of dialogue or make a Submission unrelated to the topic being discussed (unless it is clear the discussion is free-form); (c) post a chain letter or pyramid scheme; impersonate another person; (d) distribute viruses or other harmful computer code; (e) harvest or otherwise collect information about others, including email addresses, without their consent; (f) post the same note more than once or "spamming"; or (g) engage in any other conduct that restricts or inhibits any other person from using or enjoying the Site, or which, in the judgment of MCR, exposes us or any of our licensors, partners, or customers to any liability or detriment of any type.
MCR reserves the right (but is not obligated) to: (a) record the dialogue on the Site; (b) investigate an allegation that a Submission does not comply with this Agreement and determine in its sole discretion to remove or request the removal of the Submission; (c) remove Submissions which are abusive, illegal, disruptive, or outdated, or otherwise fail to comply with this Agreement; (d) terminate a user's access to any or all parts of the Site upon any breach of this Agreement or the law; (e) monitor, edit, or disclose any Submission; or (f) edit or delete any Submission posted on the Site, regardless of whether such Submission violates this Agreement.
Forums and Public Communication
"Forum" means a chat area, message board, or e-mail function that may be offered from time to time as part of the Site. If you participate in a Forum within the Site, if applicable, you must not: (i) defame, abuse, harass or threaten others; (ii) make any bigoted, hateful or racially offensive statements; (iii) advocate illegal activity or discuss illegal activities with the intent to commit them; (iv) post or distribute any material that infringes and/or violates any right of a third party or any law; (v) post or distribute any vulgar, obscene, discourteous or indecent language or images; (vi) advertise or sell to, or solicit others; (vii) use the Forum for commercial purposes of any kind other than to facilitate a transaction on the Site; (viii) post or distribute any software or other materials which contain a virus or other harmful component; or (ix) post material or make statements that do not generally pertain to the designated topic or theme of any chat room or bulletin board. You shall remain solely responsible for the content of your messages and shall indemnify and hold the Indemnified Parties, as hereinafter defined, harmless for the content of such messages. We reserve the right to remove or edit content from any Forum at any time and for any reason.
By uploading materials to any Forum or submitting any materials to us, you automatically grant (or warrant that the owner of such materials expressly granted) us a perpetual, royalty-free, irrevocable, non-exclusive, worldwide right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout the universe. In addition, you warrant that all so-called "moral rights" in those materials have been waived.
When participating in a Forum, never assume that people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated with in any chat room, message board, or other user generated content area. Information obtained in a Forum may not be reliable, and it is not a good idea to trade or make any investment decisions based solely or largely on information you cannot confirm. We cannot be responsible for the content or accuracy of any information, and shall not be responsible for any trading or investment decisions made based on such information.
Content Linked to the Site
Links to other sites we think may be of interest to you are provided for your convenience. By providing these links, we are not endorsing, sponsoring or recommending such sites or the materials disseminated by or services provided by them, and are not responsible for the materials, services or other situations at or related to or from any other site.
Please exercise discretion while browsing the Internet and using the Site. You should be aware that when you are using the Site, you could be directed to other sites that are beyond our control. There are links to other sites from the Site pages that take you outside of the Site. For example, if you "click" on a banner advertisement or a search result, the "click" may take you off the Site. This includes links from advertisers, sponsors, and content partners that may use our logo(s) as part of a co-branding agreement. These other sites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. In addition, advertisers on the Site may send cookies to users that we do not control.
We reserve the right to disable links from any third party sites to the Site.
We make no representations concerning the content of sites listed in any of the Site's directories. Consequently, we cannot be held responsible for the accuracy, relevancy, copyright compliance, legality or decency of material contained in sites listed in any search results or otherwise linked to a Site.
Please keep in mind that whenever you give out information online, that information can be collected and used by people you don't know. We cannot guarantee the security of any information you disclose online; you make such disclosures at your own risk.
ELECTRONIC TRANSMISSIONS, INCLUDING THE INTERNET, ARE PUBLIC MEDIA, AND ANY USE OF SUCH MEDIA IS PUBLIC AND NOT PRIVATE. INFORMATION RELATED TO OR ARISING FROM SUCH USE IS PUBLIC, OR THE PROPERTY OF THOSE COLLECTING INFORMATION, AND NOT PERSONAL OR PRIVATE INFORMATION.
YOU AGREE THAT YOU USE THE SITE AT YOUR OWN RISK. THE CONTENT, SERVICES AND MATERIALS IN THE SITE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY. WE DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS REGARDING THE ACCURACY, RELIABILITY, USEFULNESS OR COMPLETENESS OF THE SERVICES, CONTENT OR MATERIALS IN THE SITE OR ANY SITE LINKED TO IT. TO THE MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, DESIGN, ACCURACY, CAPABILITY, SUFFICIENCY, SUITABILITY, CAPACITY, COMPLETENESS, AVAILABILITY, COMPATIBILITY OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DO NOT WARRANT THAT THE SITE OR THE SERVICES, CONTENT, MATERIALS OR FUNCTIONS CONTAINED IN THE SITE WILL BE CONTINUOUSLY AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICES, CONTENT, MATERIALS OR THE SERVERS THAT MAKE THE SITE OR SUCH SERVICES, CONTENT AND MATERIALS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ARE ACCURATE OR COMPLETE. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, CONTENT, MATERIALS OR FUNCTIONS AVAILABLE THROUGH THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. In the event we are held liable for any damages related to such matters, your sole and exclusive remedy will be limited to reimbursement for services paid by you to the entity held liable which were not provided by such entity. You hereby waive any and all rights to bring any claim or action related to such matters in any forum beyond one (1) year after the first occurrence of the kind of act, event, condition or omission upon which the claim or action is based.
We explicitly disclaim any responsibility for the accuracy, content, or availability of information found on sites that link to or from the Site. We cannot ensure that you will be satisfied with any services that you purchase from the Site or from a third-party site that links to or from the Site or third party content on the Site. We do not endorse any of the merchandise, nor have we taken any steps to confirm the accuracy or reliability of, any of the information contained in such third-party sites or content. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against the Indemnified Parties with respect to such sites and third party content. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
The Indemnified Parties are not responsible for telephone, electric, electronic, network, Internet, computer, hardware or software program malfunctions, failures, delays or difficulties, or late, lost, stolen, illegible, incomplete, garbled, misdirected, mutilated or postage due mail, e-mail, form postings, connections, messages or entries, or the security of any and all such matters.
Further, the Indemnified Parties are not responsible for incorrect or inaccurate entry information, whether caused by Internet users or by any of the equipment or programming associated with or utilized in the Site or by any technical or human error which may occur in the processing of any information related to the Site.
We may prohibit you from participating in or utilizing the Site if in our sole and absolute discretion you show a disregard for this Agreement or act in an inappropriate manner, with the intent to annoy, abuse, threaten, or harass any other person, or in any other disruptive manner. We also reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in our sole and absolute discretion.
If for any reason any portion of the Site is not capable of running as planned, including infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes beyond the reasonable control of MCR which corrupt or affect the administration, security, fairness, integrity, or proper conduct of the Site, we reserve the right (but not the obligation) in our sole and absolute discretion, to prohibit you (and all of your information) from using the Site, and to cancel, terminate, modify or suspend the Site or any portion thereof and void such information.
You also agree that the Indemnified Parties are not responsible or liable in any way for injury, loss or damage to your computer or interception or use of credit card information, related to or resulting from use of the Site or any sites, services or materials linked or related thereto or therefrom and also are not responsible or liable in any way for any injury, loss, claim or damage relating to or resulting from any part of the Site operating or not operating on computers or networks used by you or communicating with such computers or networks.
To the extent we list or link to third party services, our site acts as the venue for suppliers to sell services (or, as appropriate, solicit offers to buy) and buyers to purchase such services. We are not involved in the actual transaction between buyers and suppliers. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of suppliers to sell items or the ability of buyers to buy items. We cannot ensure that a buyer or supplier will actually complete a transaction.
We do not control the information provided by other users which is made available through the Site. You may find other user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution and common sense when using the Site. Please note that there are also risks of dealing with foreign nationals, underage persons or people acting under false pretense.
Although we intend that descriptions contained in the Site be current and accurate, we make no warranty or representation that descriptions in the Site are accurate, complete, current, or reliable in any or all respects.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 U.S.C. 2701-2711): WE MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEB SITE LINKED TO THE SITE. WE WILL NOT BE LIABLE FOR THE PRIVACY OF THE INFORMATION, E-MAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, DISK SPACE, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION, OR ANY OTHER CONTENT TRANSMITTED OVER NETWORKS ACCESSED BY THE SITE, OR OTHERWISE CONNECTED WITH YOUR USE OF THE SITE.
NO ORAL ADVICE OR WRITTEN CORRESPONDENCE OR INFORMATION PROVIDED BY US OR ANY OF THE INDEMNIFIED PARTIES WILL CREATE A WARRANTY OF ANY KIND AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE. WE RESERVE THE RIGHT, IN OUR SOLE AND ABSOLUTE DISCRETION AND WITHOUT NOTICE, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE SITE, OR TO DENY ACCESS TO THE SITE TO ANYONE AT ANY TIME. NEITHER WE NOR ANY OF THE INDEMNIFIED PARTIES, SHALL HAVE ANY LIABILITY ARISING FROM YOUR RELIANCE UPON THE INFORMATION PROVIDED ON THE SITE.
Search and directory services may be offered in connection with the Site. Because the Web changes constantly, no search engine technology can possibly have all accessible sites at any given time. Thus, we explicitly disclaim any responsibility for the content or availability of information contained in any search index or directory offered in connection with the Site.
The Site may contain technical inaccuracies or typographical errors or omissions in connection with information displayed on the Site, including without limitation rates, fees, or availability applicable to your transaction. MCR is not responsible for any typographical, photographic, technical or pricing (including without limitation mistaken hotel rates) errors listed on our Site. MCR reserves the right to make changes, corrections and/or improvements to the Site, and to the services and programs described in such information, at any time without notice, including after confirmation of a reservation.
You are entirely responsible for maintaining the confidentiality of your password and account and for all activities that occur under your account. You hereby indemnify, defend and hold us and our hotels and each of our and their operators and owners and their partners, subsidiaries, affiliates, franchisees, licensees, and each of such person's or entities' members, officers, directors, agents, contractors, subcontractors, guests, residents, visitors, licensees, invitees, permittees and employees (collectively, the "Indemnified Parties") harmless from and against any and all allegations, demands, claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorneys' fees) and whether by reason of death of or injury to any person or loss of or damage to any property or otherwise ("Claims") arising out of or in any way connected with this Agreement, the services provided to you by the Site or any related act or failure to act by you and whether or not occasioned or contributed to by the negligence of MCR or any agent or employee of the Indemnified Parties or any of them (except as and to the extent prohibited by applicable law) or Claims arising from your account, including, without limitation, any Claims related to infringement by you of the intellectual property rights of any person, including without limitation, copyright, patent, trade secret, trade mark, artist rights, droit moral, privacy, publicity or rights under other intellectual property laws. In the event that any Claim is made or any action or proceeding is brought against the Indemnified Parties, or any of them, arising out of or connected with this Agreement, any such Indemnified Party may, by reasonable notice to you, require you, at your 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 written approval of such Indemnified Party, which approval shall be deemed to have been given hereby in the case of counsel acting for your insurance underwriters engaged in such resistance or defense. You shall cooperate with us in the defense of any Claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL WE BE LIABLE FOR ANY LOST PROFITS, COST OF COVER, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE SERVICES OR FUNCTIONS OF THE SITE OR ARISING OUT OF YOUR ACCESS TO, OR INABILITY TO ACCESS, THE SITE OR YOUR RELIANCE UPON THE SITE OR THE SERVICES, CONTENT OR MATERIALS IN, OR FUNCTIONS OF, THE SITE, PROVISION OF, OR FAILURE TO PROVIDE SERVICES, OR INFORMATION, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE). IN ADDITION, WE HAVE NO DUTY TO UPDATE THE SITE OR THE CONTENTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SITE. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY OF THE SERVICES OFFERED IN CONNECTION THEREWITH OR ASSOCIATED THEREWITH, AS THE CASE MAY BE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE SITE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THE TERMS HEREOF.
BY UTILIZING THE SITE, ALL USERS ACKNOWLEDGE AND AGREE THAT THE INDEMNIFIED PARTIES ARE RELEASED, DISCHARGED AND HELD HARMLESS FROM AND ARE NOT RESPONSIBLE OR LIABLE FOR ANY LIABILITY WITH RESPECT TO ALL ASPECTS OF THE SITE (INCLUDING WITHOUT LIMITATION, ANY ILLNESS, LOSSES, LITIGATION, PERSONAL INJURY, DEATH, PROPERTY DAMAGE, AND CLAIMS BASED ON PUBLICITY RIGHTS, DEFAMATION, OR INVASION OF PRIVACY, REASONABLE ATTORNEYS' FEES AND COURT COSTS) THAT MAY OCCUR FROM USE OF THE SITE OR THE ACCEPTANCE, POSSESSION, USE OR MISUSE OF INFORMATION, MATERIALS OR SERVICES RELATED THERETO OR ACQUIRED THEREFROM. WE RESERVE THE RIGHT AT ANY TIME AND WITHOUT LIABILITY TO RESTRICT OR REFUSE ACCESS TO THE SITE AND ITS SERVICES, CONTENT, MATERIALS AND FUNCTIONS TO ANYBODY. WE FURTHER RESERVE THE RIGHT TO SEEK ANY FORM OF RELIEF, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, RELATED TO FRAUDULENT OR ILLEGAL ACTIVITY CONNECTED WITH THE USE OF THE SITE.
You also on behalf of yourself, your predecessors, if applicable, and each of their present and former officers, employees, directors, shareholders, parents, subsidiaries, alter egos, affiliates, partners, agents, attorneys, accountants, heirs, executors, administrators, conservators, successors and assigns, as applicable, hereby fully and forever release and discharge the Indemnified Parties, from any and all claims, demands, liens, actions, agreements, suits, causes of action, obligations, controversies, debts, costs, attorneys' fees, expenses, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or suspected which have existed or may have existed, or which do exist or which hereafter can, shall or may exist, based on any facts, events or omissions occurring from any time on or prior to the execution of this Agreement which arise out of, concern, pertain or relate in any way to this Agreement or the Site. You also acknowledge that there is a possibility that subsequent to the execution of this Agreement, you will discover facts or incur or suffer claims which were unknown or unsuspected at the time this Agreement was executed, and which if known by it at that time may have materially affected its decision to execute this Agreement. You acknowledge and agree that by reason of this Agreement, and the release contained in this section of this Agreement, you are assuming any risk of such unknown facts and such unknown and unsuspected claims. You knowingly and voluntarily waive the provisions of any statute, law or rule limiting the release of unknown claims. In connection with such waiver and relinquishment, you acknowledge that you are aware that you may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true, with respect to the matters released herein. Nevertheless, it is your intention, through this Agreement, and with the advice of counsel, fully and finally settle and release all such matters, and all claims relative thereto, which do now exist, may exist, or have existed between and among the parties hereto, including the Indemnified Parties. You hereby acknowledge that you have been advised by your legal counsel, understand and acknowledge the significance and consequence of this release and of this specific waiver of such laws.
The services described in and available through the Site may not be available in your country. We make no representation that the services offered in the Site are appropriate or available for use in any particular location. Those who choose to access the Site do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. If use of the Site and/or viewing or use of any material or content therein or services offered thereby violates or infringes any applicable law in your jurisdiction(s), you are not authorized to view or use the Site and must exit immediately. Your viewing and/or use of the Site constitutes your representation that you are unconditionally and without limitation permitted to view and use the Site and the Indemnified Parties may rely upon such representation. The Site is operated from the United States and it is possible that some Software from the Site may be subject to United States export controls. No Software from the Site may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country subject to a U.S. or U.N. embargo or sanction; or (ii) to anyone on the US Treasury Department's list of Specially Designated Nationals or anyone subject to the same or similar restrictions even if not listed or the US Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any of the above restricted lists or subject to such restrictions.
Access and Interference
You will not use any robot, spider, other automatic device, or manual process to monitor or copy the Site or the contents or information contained therein without our prior express written consent. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted through the Site. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for any information in which you have an ownership interest) from the Site without our prior express written consent or the appropriate third party.
The information you provide to us (i) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; and (ii) shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers.
You and MCR are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
These terms are effective until terminated by either party. You may terminate these terms at any time by discontinuing use of the Site and destroying all materials obtained from any and all such sites and all related documentation and all copies and installations thereof, whether made under the terms of this Agreement or otherwise. Your access to the Site may be terminated immediately without notice from us if in our sole and absolute discretion you fail to comply with any term or provision of this Agreement. Upon termination, you must cease use of the Site and destroy all materials obtained from such site and all copies thereof, whether made under the terms of this Agreement or otherwise. Notwithstanding the termination of this Agreement, you acknowledge and agree that those rights and obligations which by their nature are intended to survive the termination of this Agreement in order to be fully operative, shall survive the termination of this Agreement including, without limitation, the following provisions hereof: (i) Restrictions on Use of Materials; (ii) Submissions; (iii) Disclaimers; (iv) Indemnification; (v) Limitations on Liability; (vi) Release; (vii) Access and Interference; (viii) Notice and Procedure for Making Claims of Copyright Infringement; (ix) Forum; (x) No Agency; (xi) Compliance with Laws; (xii) Class Action, Collective Action, Representative Action, and Class-Wide Arbitration Waivers; (xiii) Arbitration; and (xiv) General Provisions.
Class Action, Collective Action, Representative Action and Class-Wide Arbitration Waivers
YOU AND MCR AGREE THAT NEITHER PARTY MAY FILE OR COMMENCE A CLASS ACTION LAWSUIT, COLLECTIVE ACTION LAWSUIT, REPRESENTATIVE ACTION (WHEREBY A PARTY FILES OR COMMENCES A LAWSUIT IN A REPRESENTATIVE CAPACITY ON YOUR OR MCR’ BEHALF), OR CLASS-WIDE ARBITRATION AGAINST THE OTHER PARTY, OR PARTICIPATE IN ANY SUCH LAWSUIT, ACTION OR ARBITRATION AGAINST THE OTHER PARTY. YOU AND MCR SPECIFICALLY WAIVE ANY RIGHT EITHER MAY HAVE OR HAVE HAD TO FILE OR COMMENCE A CLASS ACTION LAWSUIT, COLLECTIVE ACTION LAWSUIT, REPRESENTATIVE ACTION, OR CLASS-WIDE ARBITRATION, OR PARTICIPATE IN ANY SUCH LAWSUIT, ACTION OR ARBITRATION AGAINST THE OTHER PARTY.
Mandatory Arbitration Except for Matters Relating to MCR Intellectual Property
EXCEPT WITH RESPECT TO ANY CLAIM OR DISPUTE INVOLVING THE OWNERSHIP, VALIDITY OR USE OF ANY MCR’ PATENTS, TRADEMARKS OR SERVICE MARKS, AND EXCEPT AS AND TO THE EXTENT BOTH PARTIES AGREE OTHERWISE IN A WRITING EXPRESSLY INTENDED TO MODIFY THIS AGREEMENT, ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR MATERIALS (INCLUDING ANY CLAIM THAT ANY PROVISION OF THIS AGREEMENT OR MATERIALS ARE INVALID, ILLEGAL, OR OTHERWISE VOIDABLE OR VOID), SHALL BE SUBMITTED FOR CONFIDENTIAL, BINDING, INDIVIDUAL ARBITRATION TO THE AMERICAN ARBITRATION ASSOCIATION (AAA). You and MCR waive any rights to maintain other available resolution processes for such disputes, such as a court action or administrative proceeding, to settle disputes. YOU AND MCR HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY. The rules in arbitration are different from the rules that apply in court. There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in the Agreement, as a court would.
MCR shall have the right in a proper case where it may suffer irreparable harm to move to obtain a temporary restraining order or temporary or preliminary injunctive relief and/or declaratory relief (other than declarations with respect to the amount of money damages) from a court of competent jurisdiction. You agree that the exclusive jurisdiction for any such action, or any action between you and MCR that is not covered by the terms of the arbitration provision in this Agreement, shall be filed only in the United States District Court for the Southern District of New York or, if there is no federal jurisdiction over the action, in the courts of the State of New York located in the Borough of Manhattan. You hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action with MCR.
Any arbitration proceeding between you and MCR shall be heard by one independent arbitrator who shall be an attorney or retired judge. The arbitration shall be held in New York, New York and in accordance with the then-existing Commercial Arbitration Rules of the AAA. All matters within the scope of the Federal Arbitration Act (9 U.S.C. 1, et seq.) will be governed by it and not by any state arbitration law
Discovery during the arbitration proceeding shall be limited. Documents or information may not be requested from any period more than two years prior to the commencement of the arbitration unless both parties agree or permitted by the arbitrator for good cause shown. Interrogatories and requests for admissions shall not be permitted. The exchange of electronic discovery shall not be permitted. The parties shall be limited to 15 requests for production of documents. All documents will be provided in paper form. Each party may take no more than three depositions, including third-party depositions, each of which shall last no more than three hours. You and MCR may bring dispositive motions, including motions to dismiss the arbitration demand and summary award motions before the commencement of the hearing. If brought, the arbitrator shall decide these motions three weeks or more before the commencement of the arbitration hearing. Each party shall provide its expert reports to the other side 15 days or more before the commencement of the arbitration hearing.
The party who commences the arbitration will pay the initial arbitration fee. All other arbitration fees or costs, including the cost of the independent arbitrator, shall be split between you and MCR unless the arbitrator rules otherwise.
In reaching his or her decision, the arbitrator shall follow this Agreement, including the Limitations of Liability provisions in this Agreement, shall be bound to apply the applicable law and shall not rule inconsistently with the applicable law. The arbitrator shall include in his or her award any relief he or she deems proper in terms of money damages (with interest on unpaid amounts from the date due at the maximum rate allowed by law), and reasonable attorneys’ fees and costs. The arbitrator is not required to issue a reasoned decision. The award of the arbitrator shall be conclusive and binding upon all parties hereto and judgment upon the award may be entered in any court of competent jurisdiction.
Other than as may be required by law, the entire arbitration proceedings (including, but not limited to, any rulings, decisions or orders of the arbitrator), shall remain confidential and not be disclosed to anyone other than the parties to this Agreement.
The foregoing waiver of a jury trial, waiver of litigation in court or other forums besides AAA arbitration, and other waivers outlined in the Class Action, Collective Action, Representative Action, and Class-Wide Arbitration Waivers section above and in this Mandatory Arbitration section shall not apply to the extent that applicable law in your country of residence requires application of another law and/or jurisdiction and cannot be excluded by contract.
All notices and other communications permitted or required by the provisions of this Agreement may be given by electronic mail, conventional mail or, if by MCR, by posting such notice on this Site. Notice is deemed given upon receipt by you if sent by electronic mail or conventional mail, or immediately upon posting to this Site.
You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
If you access the Site through a mobile application or widget, use may also be subject to terms of download and/or use of that application or widget.
No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall any waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver of the terms of this Agreement shall be binding unless executed in writing by the party making the waiver.
Digital Signature Provisions
You represent and warrant that you have the legal right, power and authority to agree to the terms of this Agreement on behalf of yourself and and any persons you represent. You further agree that your use constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act ("E-Sign") and the Uniform Electronic Transactions Act ("UETA") (as enacted by the states) and that you have formed, executed, entered into, accepted the terms of and otherwise authenticated this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes of E-Sign, UETA and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by you and any persons on whose behalf you are acting.
Notice and Procedure for Making Claims of Copyright Infringement
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to our Designated Agent. Notification under Title 17, United States Code, Section 512(c)(3) must be submitted to the following Designated Agent:
- Service Provider(s): MCR Investors LLC
- Name of Agent Designated to Receive Notification of Claimed Infringement: General Counsel
- Full Address of Designated Agent to Which Notification Should be Sent: MCR Hotels, 1503 LBJ Freeway, Suite 300, Dallas, Texas 75234
- Telephone Number of Designated Agent: (972) 355-6751
- Email Address of Designated Agent: [email protected]
Notification to the Designated Agent only applies to notices under Title 17, United States Code, Section 512(c)(3) and is not a substitute for legal service of process requirements where such service is required. To be effective, under Title 17, United States Code, Section 512(c)(3), the notification must be a written communication that includes the following:
- A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.