VISUAL MATRIX ACCESS TERMS AND CONDITIONS

These Visual Matrix Access Terms and Conditions (“Agreement”), with Image Hotel Systems, LLC, a Texas limited liability company dba Visual Matrix with principal offices located at 508 West Lookout Drive, Ste 14 #10150, Richardson, TX 75080 (“Visual Matrix”), govern your access to the various products offered by Visual Matrix as described more fully below. You will be referenced as the “Subscriber” throughout these Terms and Conditions.

BACKGROUND

• Visual Matrix has developed and markets SaaS products known as “Visual Matrix PMS” and “MOP by Visual Matrix” which provide property management information processing and hotel operations support to hotel owners, operators and managers.
• Subscriber wishes to obtain a subscription (as hereinafter defined) for use of the Services in accordance with the terms and conditions set forth in this agreement.
• In consideration of the foregoing premises and the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE 1
DEFINITIONS

• “Desktop Software” means the onsite/desktop version of Visual Matrix’s products that resides at Subscriber’s location instead of the cloud. The Desktop Software may not have all the features of the Services.
• “Desktop Software Subscriber” means a Subscriber to Visual Matrix’s older desktop/on-site software, which includes most (but not all) features offered by the Services. Such Desktop Software and the Subscriber’s data reside onsite at Subscriber’s location(s) rather than the Services being cloud based.
• “Documentation” shall mean manuals and other written materials or diagrams that relate to the “Services” and any modifications thereto, whether in hard copy (paper form) or stored or recorded on magnetic media as machine readable text or graphic files subject to display or printout.
• “Electronic Signature” means any electronic sound, symbol, or process attached to or
  logically associated with a record and executed and adopted by a party with the intent to sign such record including facsimile or email electronic signatures.
• “Modification” shall mean any modification or revision to the “Services” by Visual Matrix created in the process of and for the purpose of error correction, and does not include corrections for difficulties or defects traceable to Subscriber errors or system changes.
• “Upgrade” shall mean each new release of the “Services” including enhanced user, technical or business functionality. It does not include upgrades for custom software running as part of or in conjunction with the “Services”.
• “Site” means the location identified below the signature page of this Agreement as the site of the Services.
• “Support” includes phone and email assistance in installing and running the “Services” and interpreting its results; it does NOT include programming, system design, training, general consulting services, assistance in converting or porting products to another platform, maintaining Subscriber modified portions of the Services or maintaining portions of the Services affected by a Subscriber modified portion of the Services.
• “Services” shall mean the SaaS product developed by Visual Matrix, together with all Documentation related to such services, and any Modifications to such services made by Visual Matrix including the API and the integrations.
• “Initial Term” means the term of the license agreement beginning on the date of the Subscriber’s signature on the applicable Service Order and lasting for the length of time specified in the Service Order as “Agreement Term.”
• “Renewal Term” means each successive term of the Agreement which will be twelve (12) months unless stated otherwise in the Service Order.

• “Authorized Users” means Subscriber’s employees and direct agents who are contracted to represent the Subscriber business (a) who are authorized by Subscriber to access and use the Services under the rights granted to Subscriber pursuant to the Agreement; and (b) for whom access to the Services has been purchased hereunder. Third parties, including third party consultants, are not permitted to be Authorized Users under Subscriber’s license(s), and must contract directly with Visual Matrix for the Services. Subscriber is solely responsible for the actions and inactions of all Authorized Users under the Agreement, including any unauthorized account creation and usage.
• “API” or “Integration” means one or more software applications created by Visual Matrix or a third-party to link Visual Matrix’s Services with that of a third party.
• “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
• “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Visual Matrix.
• “Visual Matrix Materials” means the Services, Documentation, and Visual Matrix systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Visual Matrix or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or systems.

ARTICLE 2
GRANT OF SUBSCRIPTION AGREEMENT

Visual Matrix hereby grants to Subscriber, and Subscriber hereby accepts from Visual Matrix, a non-transferable, non-exclusive, license to use the Services during the Term, including the Documentation, for its internal business purposes at the Site (the “Subscription”). The rights granted Subscriber hereunder are limited and restricted solely and exclusively to Subscriber and may not be assigned, sublicensed, subleased, sold, offered for sale, disposed of, hypothecated, encumbered or mortgaged. Subscriber may not (1) copy, distribute, sell, rent, lease, sublease, transfer, assign, or substitute all or any portion of the Services; (2) modify or prepare derivative works of the Services; (3) transmit the Services over a network, by telephone, or electronically using any means whatsoever; (4) move or transfer the Services license from the Site; or (4) reverse engineer, decompile or disassemble the Services. Subscriber agrees to keep confidential and use best efforts to prevent and protect the Services from unauthorized disclosure or use.

ARTICLE 3
SUBSCRIPTION FEE; AUTOPAYMENT

• In consideration of the Subscription granted by Visual Matrix to Subscriber hereunder, Subscriber agrees to pay to Visual Matrix a monthly subscription fee as set forth in the Service Order (payable in advance), plus applicable transaction fees. Subscriber will also obtain the additional “add on” items set forth in the Service Order at the pricing set forth thereon, which Subscriber agrees to pay. Subscription fees are payable by automatic monthly (1) Electronic Funds Transfer or (2) wire transfer, and Visual Matrix reserves the right, in its sole discretion, to reject payment in any other form(s).
• As a condition to activation and continued access to the Services, Subscriber must enroll in automatic payment (Autopay) with a valid, current payment method accepted by Visual Matrix. Visual Matrix may withhold activation and/or suspend or terminate access to the Services until Autopay is established and while any required payment method is invalid, expired, or otherwise unavailable.
• For all Autopayment methods, Subscriber authorizes Visual Matrix (and its payment processor) to store tokenized details and to charge that method for recurring fees, taxes, and any other amounts due under this Agreement (including any Early Termination Fee, if allowed by law) without further authorization. Visual Matrix may make multiple charge attempts and process charges in separate transactions. Subscriber is solely responsible for providing a current method of payment, and failure to provide a valid Autopayment method does not relieve payment obligations.
• At the execution and delivery of this Agreement, any One-Time fees (as set forth in the Service Order), plus the first month’s monthly subscription fee (as set forth in the Service Order), plus payment for any add-on hardware (as set forth in the Service Order), shall be due and payable.
• Any promotional discounts, bundled pricing, or other concessions reflected on the Service Order apply only during the Initial Term, unless expressly stated otherwise on the Service Order. Upon renewal, fees will be at then-current rates (subject to any renewal discounts expressly agreed in writing by the parties).
• The subscription fee may automatically increase by up to 3% annually after the Initial Term. Notwithstanding the foregoing, Visual Matrix may increase the monthly subscription fee for any Service Order after the Initial Term upon thirty (30) days’ notice to Subscriber. The increased monthly subscription fee shall become effective on the date specified in the notice.

• Subscriber must notify Visual Matrix in writing of any good-faith dispute regarding an invoiced amount within thirty (30) days of invoice receipt. Subscriber will timely pay all undisputed amounts. Failure to provide timely written notice of a dispute constitutes acceptance of the invoice as issued and a waiver of the right to dispute that invoice, provided that Visual Matrix may correct any billing error, undercharge, or overcharge and reflect such retroactive correction on a subsequent invoice, subject to applicable law.

ARTICLE 4
TERM AND TERMINATION

• The Initial Term of this Agreement as established in the Service Order, begins on the Effective Date of this Agreement. Unless otherwise set forth in the Service Order, the Agreement will automatically renew for successive Renewal Terms unless either Party gives the other Party written notice at least thirty (30) days prior to the renewal date (each a “Renewal Term”). Unless specified otherwise in the Service Order, the Renewal Term will be twelve (12) months. The Subscriber will receive separate notices regarding the Renewal Term, if required by applicable local or state law.

• Subscriber may terminate this Agreement at any time for convenience by providing written notice to Visual Matrix and paying the corresponding Early Termination Fee (if applicable). Termination is effective only upon Visual Matrix’s receipt of payment in full of (i) all amounts then due and payable, and (ii) the Early Termination Fee defined below. If payment is not remitted together with the notice, the Agreement remains in effect and ordinary fees will continue to accrue until payment is received; Visual Matrix may, at its option, suspend access for non-payment pursuant to this Agreement, but is not obligated to perform any decommissioning tasks.

• Early Termination Fee. As liquidated damages and not a penalty, the Early Termination Fee equals the aggregate recurring fees, plus any applicable taxes, that would have become due for the remaining months of the then-current Initial Term or Renewal Term as allowed under applicable local or state law, and measured from the effective termination date (the date payment is received) through the scheduled end date.

• No cancellation assistance prior to payment. Visual Matrix will not assist with or perform any cancellation, de-installation, deactivation, interface disconnection, or transition services (including disabling integrations or coordinating vendor cut-overs) unless and until the Early Termination Fee and all other amounts then due are paid in full. After payment, any requested transition assistance may be provided at Visual Matrix’s then-current professional services rates and subject to scheduling availability.
• Prepaid amounts; no refunds. Amounts previously paid that relate to periods after the effective termination date will be credited against the Early Termination Fee

• Except as expressly stated otherwise in this Agreement, all fees are non-cancellable and non-refundable. Recurring fees are charged in whole-month increments; any partial month is treated as a full month and there is no proration. All amounts accrued and unpaid through the effective date of termination remain due, together with any usage-based charges incurred but not yet invoiced.
• Following termination of this Agreement, Subscriber will immediately cease to use the Services (including the Documentation), will uninstall any client version that may have been installed locally, and will return or, if requested by Visual Matrix, destroy any portion of the Services and Documentation in Subscriber’s possession.
• Subscriber understands and agrees that in order to use the Services and/or certain features of the Services, monthly subscription fees will be charged and are payable in advance, and that in the event of non-payment or delayed payment of such monthly fees, or in the event of any other default by Subscriber, Visual Matrix may deactivate or disable the Services and/or certain features of the Services immediately upon written notice to Subscriber.
• Visual Matrix may terminate this Agreement at any time and for any reason with sixty (60) days written notice to Subscriber.
• Visual Matrix may terminate this Agreement due to breach of the terms of this Agreement (1) immediately for breach of Articles 2, 5, 7, 7A, or 12; and (2) with fifteen (15) days’ notice for all other types of breaches, provided that Subscriber shall have a fifteen (15) day opportunity to cure the breach during such period. In the case of non-payment of Fees hereunder, Visual Matrix is permitted to suspend access to the Services during the notice and cure period.
• Post-Termination Data Handling. Upon termination or expiration of the Agreement, except as required otherwise by applicable law, Visual Matrix has no obligation to maintain, deliver, or return any Subscriber Data. Subscriber is solely responsible for exporting any desired Subscriber Data from the Services prior to the effective date of termination.
• After termination/expiration, Visual Matrix will delete Subscriber Data from active production systems in accordance with Visual Matrix’s data retention and deletion policies. Backup copies that contain Subscriber Data may persist within Visual Matrix’s read-only, encrypted backup/archival media and disaster-recovery systems and are overwritten on their normal retention cycles. Such backups will not be accessed or restored except for disaster-recovery, security, or legal-compliance purposes; if restored, the applicable Subscriber Data will be re-deleted from active systems in accordance with those policies. Visual Matrix may retain Subscriber Data as required to comply with legal obligations or to establish, exercise, or defend legal claims. Upon request, Visual Matrix will provide a deletion certificate confirming deletion from active systems. Any Confidential Information retained by Visual Matrix pursuant to this backup provision will remain subject to all provisions of this Agreement governing Confidential Information until such information is destroyed or returned in accordance with this Agreement.
• Post-Termination Reactivation. If, after the termination date of this Agreement, Subscriber requests access to Subscriber Data and such data is still available and Visual Matrix is able, in its discretion, to reactivate or restore access (e.g., by temporarily re-enabling the account or restoring a backup), Visual Matrix may provide limited access solely to permit Subscriber to export such data. Any such reactivation/restoration is not guaranteed and will be provided only where legally permissible and technically feasible. Fees apply, including, but not limited to, a minimum charge of two thousand five hundred US dollars (US $2,500), plus any time-and-materials at Visual Matrix’s then-current rates and any third-party, storage, retrieval, or restoration costs. Any Early Termination Fees and outstanding invoices must also be paid prior to any Post-Termination work being provided. Visual Matrix may require prepayment and execution of a short work authorization before commencing any reactivation/restoration work.
• For clarity, where Subscriber is a Desktop Software Subscriber, Subscriber’s Data remains on Subscriber’s premises/systems and Visual Matrix does not process or otherwise have access to such data, except for the limited purpose of support of the Desktop Software.

ARTICLE 5
PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION

• DEFINITION OF CONFIDENTIAL INFORMATION. “Confidential Information” means any confidential or proprietary information of a Party (the “Disclosing Party”) that is disclosed to the other Party (the “Receiving Party”), whether orally or in writing or through any media, including, without limitation, any information related to, concerning or arising out of or from, financials, business, technical information, know-how, ideas, trade secrets, procedures, methods, systems and concepts, and information related to products, operations, marketing and business plans, customer or supplier names, addresses and preferences, corporate organization, capitalization and finances, plans, data, technology, computer programs, documentation, software, computer systems, schematics, algorithm, source code, object code, methodologies, product development, distribution plans, contractual arrangements, sales, pricing policies, operational methods, technical processes, business affairs and methods, plans for future developments, inventions, processes, procedures, research records, market surveys and know-how and other technical papers. The terms and conditions of this Agreement shall constitute Confidential Information, but the existence of this Agreement shall not constitute Confidential Information.
• EXCLUSION. Confidential Information shall not include information that Receiving Party can show was: (i) in the public domain or otherwise publicly available when disclosed to Receiving Party; (ii) communicated to Receiving Party by a third party without any obligation of confidentiality and without any breach of confidentiality by such third party; (iii) in Receiving Party’s possession free of any obligation of confidentiality when disclosed to Receiving Party; or (iv) independently developed by Receiving Party without use of the Confidential Information and without breach of any obligation of confidentiality.
• OBLIGATION OF CONFIDENTIALITY. Receiving Party acknowledges that Confidential Information may contain valuable trade secrets and other proprietary information of Disclosing Party and remains the sole and exclusive property of Disclosing Party. Receiving Party shall (i) use Confidential Information only for the purpose for which it is provided and for no other purpose, (ii) restrict disclosure of Confidential Information to its employees who have a need to know, (iii) not disclose, directly or indirectly, Confidential Information to any third party without Disclosing Party’s prior written consent, (iv) protect Confidential Information in the same way it protects its own Confidential Information of a similar nature, but in no event exercising less than reasonable care, and (v) not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information.
• COMPELLED DISCLOSURE.Notwithstanding the foregoing, Receiving Party shall not be in violation of this Section 3 if it discloses Confidential Information in response to a valid order by a court or other governmental entity, provided that Receiving Party provides Disclosing Party as prompt notice as practicable of such impending disclosure and reasonable assistance (at Disclosing Party’s expense) to permit Disclosing Party to contest the order or seek confidential treatment.
• OWNERSHIP OF CONFIDENTIAL INFORMATION. Each Party shall remain and be the sole owner of, and shall have exclusive right, title and interest in and to, its Confidential Information, and nothing herein shall be deemed, construed as, or otherwise constitute an assignment, sale or other disposition to the other Party, including by implication, acquiescence, conduct, estoppel or otherwise, of any rights in and to Confidential Information of the other Party, other than as specifically indicated herein. Neither this Agreement nor the disclosure of any Confidential Information hereunder shall result in any obligation on the part of either Party to enter into any further agreement with the other Party, or to require the other Party to disclose any particular Confidential Information.
• TERMINATION OF OBLIGATIONS AS TO CONFIDENTIAL INFORMATION. The Receiving Party’s obligations as to Confidential Information will survive termination or expiration of this Agreement and will be binding upon the Receiving Party’s successors, and assigns, and shall terminate only pursuant to Section 5(b), or when such Confidential Information of the disclosing party is no longer in the custody or control of the receiving party.
• The Services, including the Documentation and any Modifications made by Visual Matrix, are and shall remain the exclusive property of Visual Matrix. Subscriber acknowledges that the Services is the valuable, confidential, proprietary property of Visual Matrix and Subscriber agrees to treat the aforesaid property and information as the confidential property of Visual Matrix and to advise each of its employees, agents, and representatives who may have access to some of their obligation to keep the property and information confidential.

ARTICLE 6
MODIFICATIONS; VISUAL MATRIX SUPPORT; UPGRADES

Any Modifications and/or Updates to the Services made by Visual Matrix may be furnished to the Subscriber as soon as reasonably practicable after public release. Subscriber acknowledges that such Modifications and/or Updates may require an internet connection to be received by Subscriber. All such Modifications and Updates shall be deemed to be part of the Services under this Agreement unless priced and sold separately by Visual Matrix. Support for the Services will be provided in accordance with our support guidelines, currently available at  https://visualmatrix.com/support-structure. Current general and emergency support hours are 24 hours per day, 7 days per week. Non-emergency escalated support hours are currently 8:00 AM to 5:00 PM CST, Monday through Friday. For clarity, “Support” does not include uninstallation, reinstallation, interface disconnection, de-provisioning, re-provisioning, or other cancellation/transition services, which Visual Matrix may provide, if requested after payment of all amounts due (including any Early Termination Fee), at its then-current professional services rates.

ARTICLE 7
SUBSCRIBER OBLIGATIONS

• SUBSCRIBER GENERAL OBLIGATIONS

  1. Visual Matrix only authorizes use of the Services on those computer systems that meet or exceed Visual Matrix’s system requirements outlined and updated from time to time at: https://help.visualmatrix.com/portal/en/kb/articles/computer-system-requirements.
  2. Subscriber understands and agrees that the Services requires an active internet connection and that Subscriber is solely responsible for obtaining and maintaining such internet connection from a third-party provider. Visual Matrix is not responsible for Subscriber’s inability to use or access the Services due to a third-party technology or system requirement failure, including a reduction in internet or network speed or an internet outage.

• If integrations are included in the Subscriber order, it is the responsibility of the Subscriber to install hardware and connectivity from each integrated device according to the interface vendor’s specification. An integration vendor representative may be required onsite at the Subscriber’s expense during the implementation to complete the configuration, installation and testing. Such onsite visits from a vendor representative must be scheduled with Visual Matrix, according to Visual Matrix availability, in order to ensure service may be completed on time.

1. Subscriber agrees that it is Subscriber’s responsibility to backup Subscriber’s data if Subscriber chooses a non-cloud product, and Visual Matrix disclaims any obligation to backup or maintain any data backup(s) of Subscriber Data within any non-cloud products. Subscriber understands that Visual Matrix’s cloud products are backed up at regular intervals but only have the specific backup capabilities specified in the documentation/agreements, if any. If Subscriber requires specific backups be completed beyond the standard ones provided by Visual Matrix (and to the extent offered by Visual Matrix), a separate addendum or engagement with Visual Matrix for such services will be required.
2. Subscriber agrees that it is Subscriber’s responsibility to install and maintain anti-virus software and related protections against viruses, Trojan horses, worms, time bombs, cancel bots or other techniques that may have the effect of damaging, destroying, disrupting or otherwise impairing a computer’s functionality or operation.

• SECURITY CONFIGURATION. Subscriber agrees to: (i) enable and enforce MFA for all users; (ii) provision unique, non-shared credentials; (iii) configure role-based access consistent with least-privilege; (iv) promptly offboard departing personnel; and (v) take other reasonable security precautions as requested by Visual Matrix from time to time.
• TRAINING. Subscriber shall train Authorized Users not to enter payment-card data (or other Prohibited Data) into free-text fields and to use only the PCI-designated, tokenized interfaces for card handling.
• INCIDENT COOPERATION. Subscriber will promptly notify Visual Matrix of any suspected misuse of the Services involving Prohibited Data and will cooperate in investigation and remediation.
• INTEGRATIONS. Visual Matrix is not responsible for third party integrations into the Services, including any integrations that involve PCI.
• MISCONFIGURATION. Subscriber is responsible for losses arising from misconfiguration of Subscriber-managed settings (roles, MFA, user lifecycle), except to the extent caused by Visual Matrix’s failure to perform its expressly stated obligations.

ARTICLE 7A
ACCEPTABLE USE; PROHIBITED DATA

• PROHIBITED DATA. Subscriber shall not input, upload, store, or transmit Account Data (as defined below) in any portion of the Services except the PCI-designated, tokenized payment interfaces identified by Visual Matrix. “Account Data” means “cardholder data” and “sensitive authentication data (SAD)” as defined by PCI DSS v4.x, including without limitation Primary Account Numbers (PAN), cardholder name, expiration date, full track data, CVV/CVC/CID, PINs/PIN blocks, and service codes. SAD must never be stored after authorization, even if encrypted. Any entry of Account Data into non-designated areas is a material breach of this Agreement.
• OTHER PROHIBITED SENSITIVE DATA. Subscriber shall not use free-text fields to store Social Security numbers, government IDs, health/medical data, or other special/sensitive categories unless expressly permitted in writing by Visual Matrix.
• DETECTION AND REMEDIATION. Visual Matrix may (but is not obligated to) scan, detect, redact, delete, mask, tokenize, or quarantine Prohibited Data entered into non-designated areas and may log related metadata for security/compliance. Visual Matrix may charge reasonable fees for investigation, remediation, and support arising from Subscriber’s breach of this Section.

ARTICLE 8
WARRANTIES

• Visual Matrix represents and warrants that it owns or has the right to the Services and it has the right to license the use of the Services as set forth in Article 2 above. Visual Matrix does not warrant that the Services will be error free.
• VISUAL MATRIX DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT WILL VISUAL MATRIX BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF VISUAL MATRIX HAS KNOWLEDGE OF THE POTENTIAL LOSS OR DAMAGE.
• Visual Matrix shall not be liable for any loss or damage caused by delay in furnishing the Services or any other performance under this Agreement.
• In no event shall Visual Matrix’s liability arising out of or related to this Agreement exceed six (6) months of Fees actually paid by Subscriber under this Agreement. The Subscriber acknowledges that this limitation is reasonable and that Visual Matrix is not an insurance provider.
• Visual Matrix is not responsible for the performance or functioning of any third-party provided or maintained products or technology, including any computers, hardware, software, or network or internet connectivity devices or service that the Services may interact with or be installed on (“Third-Party Products”), and provides no warranties for such items. Subscriber must contact the third-party for support and/or warranties related to such Third-Party Products. Visual Matrix reserves the right to use non-identifying/de-identified data or data in an aggregated form as outlined in our data privacy policy at https://visualmatrix.com/privacy-policy/. For clarity, Visual Matrix’s liability shall not include losses arising from Subscriber’s storage of Prohibited Data in non-designated areas, except to the extent caused by Visual Matrix’s failure to meet its expressly stated security obligations; in all cases Visual Matrix’s liability remains subject to the cap in Section 8(d).
• No action, regardless of form, arising out of any transaction under this Agreement may be brought by either party more than one year after the injured party has knowledge of the occurrence, which gives rise to the cause of such action.

ARTICLE 9
INDEMNITY

• To the best of Visual Matrix’s knowledge, the unmodified Services as furnished by Visual Matrix and the use thereof are free from any claim of infringement of any copyright, trademark, trade secret, patent, or other proprietary right of any third party. If notified promptly in writing of any action brought against Subscriber, based on a claim that the Subscriber’s use of the Services infringes any rights, Visual Matrix shall defend such action at its expense and shall indemnify Subscriber against any cost, damages and reasonable attorney’s fees awarded in any such action. This indemnity is subject to Visual Matrix receiving prompt notice of any such action and being granted full control of the defense or settlement thereof. Subscriber may participate at Subscriber’s expense in the defense of any such action if such claim is against the Subscriber. In the event that an injunction shall be obtained against the Subscriber’s use of the Services by reason of infringement of a right, or if in Visual Matrix’s opinion a claim of infringement of a right is likely to prevail, Visual Matrix shall, at its option and expense, either: (i) procure for the Subscriber the right to continue using the Services; or (ii) replace or modify the Services so that it becomes non-infringing but functionally equivalent; or (iii) if neither (i) nor (ii) is reasonably practicable, require the return or destruction of the infringing Services and terminate this Agreement, and refund any Subscription fees paid by the Subscriber for the period after the Agreement is terminated. Subscriber shall indemnify, defend and hold Visual Matrix and its officers, directors, members, managers, representatives, agents, successor and assigns harmless, along with advancing the cost of defense (including reasonable attorney’s fees) and paying for any settlement, against any and all claim, suit, proceeding, action, demand, cause of action or liability asserted or threatened to be asserted relating to, concerning, arising out of or from, or by reason of breach of this Agreement by Subscriber.
• SUBSCRIBER PCI/CARD-BRAND INDEMNITY. Subscriber shall indemnify, defend, and hold harmless Visual Matrix from and against all losses, costs, damages, liabilities, card-brand assessments, acquirer/processor fines or penalties, third-party claims (including guests), and reasonable attorneys’ fees arising from: (i) Subscriber’s violation of Article 7A (Prohibited Data); (ii) storage or transmission of Account Data in non-designated areas of the Services; or (iii) failure to maintain PCI DSS compliance with respect to such data.

ARTICLE 10
INSURANCE

Subscriber will carry the policies of insurance described below for the term of this agreement. Such policies shall not be cancelable or subject to material amendment which would materially and adversely harm Visual Matrix’s interests without thirty (30) days’ prior written notice to Visual Matrix. Visual Matrix may request Subscriber provide a certificate of insurance evidencing such policies before commencing work under this Agreement, and with five (5) business days written notice at any time during the Initial Term or Renewal Term. The type and limits of such policies shall be as follows: (a) Workers’ Compensation – Statutory, as required by applicable law; (b) Commercial General Liability – $1,000,000 each occurrence; (c) Cyber Liability (may be part of commercial general liability or a stand-alone policy) – $1,000,000 each occurrence.

ARTICLE 11
LICENSE RESTRICTIONS

Subscriber and its Authorized Users shall not:

• use the Services in any way to monitor or evaluate the availability, performance or functionality of the Services for any competitive purpose, or perform or assist any other party to perform any benchmarking on the Services;
• use the Services for any illegal purpose, or in violation of any local, state, national, or international law;
• use the Services in a dangerous manner, in any way which may harm others, or in any other manner which Visual Matrix determines is unsafe or unacceptable, at Visual Matrix’s sole discretion;
• copy any portion of the Services, except as expressly permitted by this license;
• modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Services;
• reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof;
• remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof;
• use or allow any use of any screen scraping, data mining or other automated means to extract data from the Services, whether for general use, transition of the Services, or otherwise, other than use of the API by Authorized Users or with Visual Matrix’s prior written consent;
• allow any third party to access the Services, other than Authorized Users, including, but not limited to franchisor consultants, employees, transition consultants, agents of a software competitive to Visual Matrix’s Services, or other third-parties.
• rent, lease, lend, sell, sublicense otherwise make available the Services, or any features or functionality of the Services, to any third party for any commercial reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time;
• remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services;
• directly or indirectly take any action that imposes or may impose (as determined by Visual Matrix in its sole discretion) an unreasonable or disproportionately large load on Visual Matrix or its third-party providers’ infrastructure; interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; run Mail list, Listserv, or any form of auto-responder or “spam” on the Services; or use manual or automated software, devices, or other processes to scrape any page of the Services; or
• create a false identity on the Services, misrepresent an individual’s or entity’s identity, impersonate any person, create a profile for anyone other than you, or use or attempt to use another account.
• If for any reason, Visual Matrix determines that Subscriber or its Authorized Users have failed to follow these rules, Visual Matrix reserves the right to prohibit any and all current or future use of the Services by Subscriber. If Visual Matrix has reason to suspect, or learn that anyone is violating the Agreement, Visual Matrix may investigate and/or take legal action as necessary including bringing a lawsuit for damages caused by the violation. Visual Matrix reserves the right to investigate and take appropriate legal action, including without limitation, cooperating with and assisting law enforcement or government agencies in any resulting investigations of illegal conduct.

ARTICLE 12
INTELLECTUAL PROPERTY RIGHTS

• Visual Matrix Materials. All right, title, and interest in and to the Visual Matrix Materials, including all Intellectual Property Rights therein, are and will remain with Visual Matrix and, with respect to Third-Party Materials, the applicable third-party. Visual Matrix owns all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Subscriber has no right, license, or authorization with respect to any of the Visual Matrix Materials except as expressly set forth in this Agreement or the applicable third-party license, in each case subject to the Terms and this Agreement. All other rights in and to the Visual Matrix Materials are expressly reserved by Visual Matrix. In furtherance of the foregoing, Subscriber hereby unconditionally and irrevocably grants to Visual Matrix an assignment of all right, title, and interest in and to the Resultant Data and Feedback, including all Intellectual Property Rights relating thereto.
• Subscriber Data. As between Subscriber and Visual Matrix, Subscriber is and will remain the sole and exclusive owner of all right, title, and interest in and to all Subscriber Data, including all Intellectual Property Rights relating thereto.
• Consent to Use Subscriber Data. Subscriber hereby irrevocably grants all such rights and permissions in or relating to Subscriber Data, including Subscriber’s account access with a third party (if Subscriber uses the API or Integration), as are necessary or useful to Visual Matrix, its subcontractors, and the Visual Matrix personnel to provide the Services including the API and Integration, enforce this Agreement, and exercise and perform Visual Matrix’s, its subcontractors’, and the Visual Matrix personnel’s rights hereunder.
• Subscriber understands and agrees that use of any third party product or Services through the API or Integration is subject to the terms and conditions of the applicable third party service, and that Visual Matrix is not responsible for the performance, access, data, or other materials within the third party product or service. Subscriber uses the third party product or service at its own risk.

ARTICLE 13
SUBSCRIBER REPRESENTATIONS, WARRANTIES, AND COVENANTS

Subscriber represents, warrants, and covenants to Visual Matrix that Subscriber owns or otherwise has and will have the necessary rights and consents in and relating to the Subscriber Data, including any Subscriber Data being accessed through the API, Integration, or a third party product, so that, as received by Visual Matrix and processed in accordance with this Agreement, Subscriber’s use of the Services and Visual Matrix’s provision of the Services will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

California Specific Terms:

Subscribers in California will receive separate notification of any Early Termination Fees and Renewal Terms applicable to them, in compliance with California Law.

ARTICLE 14
MISCELLANEOUS

• NOTICES. All notices must be in writing and shall be made by hand delivery, by a recognized overnight courier, by certified mail, return receipt requested, or electronic mail (email). Email is preferred.

Notices to Visual Matrix shall be sent to Visual Matrix, 508 West Lookout Drive, Ste 14 #10150, Richardson, TX 75080, and by email to billing@visualmatrix.com. Notices to Subscriber shall be sent to the postal address or email address set forth on the Service Order or subsequently designated by Subscriber. Delivery to a Party’s last-provided postal or email address is effective even if that Party fails to update its contact information.

Notices shall be deemed to have been made and received upon the earlier to occur of (i) actual receipt, or (ii) the third business day after mailing using the U.S. Postal Service, or (iii) for email, on the date sent (provided the sender receives no bounce-back or other error notice; out-of-office replies do not constitute an error), or on the next business day if sent after 5:00pm recipient local time.

Subscriber may update its notice address by updating contact information in the Visual Matrix billing portal, which shall constitute notice under this Section. Either Party may also update its notice address (including email) by providing notice under this section.

• NON-WAIVER. No waiver of any agreement, term, condition, or provision of this Agreement shall be effective or binding unless made in writing and delivered to the party hereto whose non-performance has been waived. Any prior failure to enforce, or delay in the enforcement of, such rights shall not constitute a defense in any subsequent legal or equitable proceeding.
• TAXES. Subscriber is responsible to pay, if required, any sales, use, or similar tax, including taxes on the income and assets of Subscriber. Visual Matrix will invoice and withhold for such taxes if it is required to do so by local law and such amounts shall be in addition to all fees hereunder.
• SEVERABILITY. If any of the covenants, terms, conditions, or provisions of this Agreement are held invalid for any reason, such invalidity shall not affect the other provisions hereof, which can be given effect without the invalid provision.
• GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Texas, without giving effect to the principles of conflicts of laws. The parties agree that venue for any dispute arising out of or related to this agreement shall be proper only in the state and federal courts located in Dallas County, Texas, if such courts have jurisdiction to hear such dispute.
• TITLES/INCORPORATION/COUNTERPARTS. The titles used in this Agreement are for convenience only and are not to be considered in construing the terms of this Agreement. The recitals, addenda and exhibits referred to in this Agreement are, by this reference, incorporated herein and made a part of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. This Agreement may also be signed and transmitted by facsimile, each of which Agreement shall be deemed to be delivered upon confirmation and shall constitute one and the same agreement.
• ENTIRE AGREEMENT. This Agreement and any addendum, schedule or exhibit attached hereto contain the entire agreement of the parties hereto concerning the subject matter hereof, and supersedes any and all prior agreements among the parties hereto concerning the subject matter hereof. This Agreement may be amended with thirty (30) days written notice by Visual Matrix at any time and such changes shall be effective thirty (30) days thereafter (“Amendment Effective Date”), and Client’s continued use of the services and products hereunder after the Amendment Effective Date shall constitute acceptance of such amendments. The most current version of this Agreement may be viewed on Visual Matrix’s website at https://visualmatrix.com/tos
• SUCCESSORS AND ASSIGNS. All the terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and assigns and legal representatives.
• Assignment by Subscriber. This Agreement may not be assigned by Subscriber, by acquisition, merger, or otherwise (including the purchase of 51% or more of the equity of Subscriber), without at least thirty day’s written notice to Visual Matrix. A form is available to notify Visual Matrix of a possible assignment and facilitate the transition process. Subscriber understands that notice regarding a Subscriber ownership change is important to facilitate a smooth transition of the locations, booking data, and related configurations to the new owners. Certain set-up and transition fees may apply, depending on the specific situation. Any attempted assignment by Subscriber in violation of this Section is void.
• Assignment by Visual Matrix. Visual Matrix may assign, transfer, delegate, or novate this Agreement (in whole or in part) at any time, including to an Affiliate or in connection with a merger, acquisition, corporate reorganization, sale of stock or assets, financing, or by operation of law, with or without notice to Subscriber. Any permitted assignee will assume the obligations of Visual Matrix under this Agreement from and after the effective date of Assignment.
• Visual Matrix may subcontract performance of the Services, provided it remains responsible for its subcontractors’ performance.
• VENUE/JURISDICTION. The parties hereto hereby consent and agree that any claim or dispute arising under or relating to this Agreement shall be maintained and instituted only in a state or federal court sitting in Dallas County, Texas, and that any such court shall have jurisdiction to hear and determine any such claim or dispute. The parties hereto hereby expressly submit and consent to such jurisdiction in any action or suits commenced in any such court, and hereby expressly waive any objection, which either of them may have based upon lack of personal jurisdiction, improper venue or inconvenient venue.
• ATTORNEYS FEES. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees in addition to any relief to which that party may be entitled.
• ELECTRONIC SIGNATURES. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures.
• AUDIT EVIDENCE; CERTIFICATIONS. Upon written request and under a mutual NDA, Visual Matrix will provide reasonable audit evidence such as its SOC 2 Type 1 report and PCI DSS Attestation of Compliance (AOC) relevant to the Services. Visual Matrix does not permit onsite audits except where required by law.
• SUBPROCESSORS AND INTEGRATIONS. Subscriber authorizes Visual Matrix’s use of subprocessors to deliver the Services. A current list of subprocessors is available upon request or via public posting; Visual Matrix may update that list from time to time. For third-party payment integrations, the applicable third party’s terms govern that third party’s processing.
• DATA PROCESSING TERMS (Exhibit A). Where Visual Matrix processes personal data on Subscriber’s behalf, the Data Processing Terms set out in Exhibit A to these Terms apply and are incorporated by reference. In the event of a direct conflict between Exhibit A and these Terms with respect to data-protection obligations, Exhibit A controls. For clarity: references in Visual Matrix policies (to “Exhibit A” mean Exhibit A — Data Processing Terms attached to these Terms. Exhibit A does not apply to Desktop Software Subscribers and Visual Matrix is not a data processor under applicable law with respect to such subscribers.

Exhibit A — Data Processing Terms

1. Scope & Roles. These Data Processing Terms (“DPT”) apply when Visual Matrix (“Processor” or “Visual Matrix”) processes Customer Data containing Personal Data on behalf of the hotel client (“Subscriber,” “Controller,” “Business”) under the Terms of Service (the “Agreement”). This Exhibit A does not apply to Desktop Software Subscribers.

2. Definitions. “Applicable Data Protection Law” means, as applicable: GDPR/UK GDPR (and local implementations), California Privacy Rights Act (“CPRA”) and California Consumer Privacy Act (“CCPA” (and regulations)), Colorado Privacy Act, Virginia CDPA, Connecticut and Utah privacy laws, Quebec Law 25, and other privacy laws applicable to Visual Matrix and the Services, each as amended. Terms like controller/processor, business/service provider/contractor have the meanings in those laws.

3. Instructions & Purpose Limitation. Visual Matrix will process Personal Data based only upon the documented instructions from Subscriber, to provide the Services, resolve support tickets, ensure security, comply with law, and as otherwise permitted by the Agreement and Applicable law, including the Applicable Data Protection Law.

4. Confidentiality. Visual Matrix ensures persons authorized to process Personal Data are bound by appropriate confidentiality obligations.

5. Security. Visual Matrix maintains technical and organizational measures appropriate to risk, described in Annex 2 (Security Measures), including encryption in transit and at rest, tenant-level isolation (separate DB instance per customer), access controls, logging/monitoring, vulnerability management, backups/BCP, and incident response. Visual Matrix undergoes SOC 2 Type 1 and PCI DSS validations applicable to the Services; reports/AOC are available upon Subscriber request (subject to the confidentiality terms herein).

6. Subprocessors. Subscriber authorizes Visual Matrix to engage subprocessors to deliver the Services. Visual Matrix will impose GDPR Art. 28(3)-equivalent obligations on subprocessors and remains responsible for their performance. A current list is available upon request; Visual Matrix will provide notice of material changes and allow reasonable objections (with commercially reasonable alternatives or termination assistance if unresolved).

7. Assistance. Taking into account the nature of processing, Visual Matrix will assist Subscriber, as appropriate, with data subject requests, security and data-protection impact assessments, and regulator consultations, each to the extent required by law. For clarity, any operational limits on data exports or copies do not restrict Visual Matrix’s obligations to provide reasonable assistance required by Applicable Data Protection Law in relation to data-subject requests, security obligations, or regulatory inquiries.

8. Incident Notification. Visual Matrix will notify Subscriber without undue delay after becoming aware of a Personal Data Breach affecting Customer Data processed for Subscriber, and will provide information reasonably required to meet Subscriber’s breach-notification duties.

9. Deletion at End of Processing. Upon termination or expiry of the Agreement, Processor will delete Personal Data from active production systems in accordance with Visual Matrix’s data retention and deletion policies. Processor is not obligated to return or deliver Personal Data at or after termination; Subscriber is responsible for exporting any Personal Data it requires before termination using the export functionality, APIs, or other in-Service tools made available during the Services Term.

Backup/archival copies containing Personal Data may persist in read-only, encrypted backups that are overwritten on normal retention cycles. Such backups will not be restored or accessed except for disaster-recovery, security investigation, or legal-compliance; if restored, the Personal Data will be re-deleted from active systems in accordance with Visual Matrix’s data re. Notwithstanding the foregoing, Visual Matrix may retain Personal Data to the extent and for the duration required by Applicable Law or to establish, exercise, or defend legal claims. Upon request, Visual Matrix will provide a deletion certificate confirming deletion from active systems.

10. Post-Termination Reactivation. If, after termination/expiry, Subscriber requests access to Personal Data and such data is still available and Visual Matrix is able, in its discretion, to reactivate or restore access (including by temporarily re-enabling the account or restoring a backup), Visual Matrix may provide limited access solely to permit Subscriber to export such data, subject to Subscriber’s written instructions and any applicable legal requirements. Fees apply, including a minimum charge of two thousand five hundred US dollars (US $2,500) plus any outstanding invoices and other amounts then due (including any Early Termination Fee), plus any time-and-materials at Visual Matrix’s then-current rates and any third-party, storage, retrieval, or restoration costs. Visual Matrix may require prepayment and execution of a short work authorization before commencing any reactivation/restoration work.

11. Audits & Reports. On written Subscriber request and under NDA, Visual Matrix will make available audit artifacts (e.g., SOC 2 Type 1 report, PCI DSS AOC) and respond to reasonable security questionnaires. If law or regulator requires a direct audit, the parties will agree on reasonable scope, timing, and safeguards prior to such audit being completed.

12. Regional hosting. Visual Matrix hosts Customer Data in the region associated with Subscriber’s account (including EU hosting for EU-provisioned accounts); the safeguards below apply to any cross-border remote access or transfers that nonetheless occur. Where Visual Matrix transfers Personal Data from the EEA/UK/Switzerland to a country without an adequacy decision, the parties incorporate by reference the EU Standard Contractual Clauses (Commission Decision 2021/914) Module 2 (C→P) (with the Annexes in Annex 1/2), plus the UK Addendum and Swiss adaptations, as applicable. If those mechanisms are replaced or updated, the parties will cooperate to adopt a valid successor.

13. CPRA/CCPA Service-Provider Terms. For California, Visual Matrix acts as a Service Provider/Contractor and shall: (a) not sell or share Personal Information; (b) use it only to perform the Services or as otherwise permitted by CPRA; (c) not combine it with other personal information except as allowed for service provision; (d) notify Subscriber if it can no longer meet its obligations; (e) flow down required terms to subprocessors; and (f) enable assessments/audits consistent with Section 10.

14. Quebec Law 25 & Other Jurisdictions. For Quebec, processing by a third party on behalf of an enterprise must be governed by a written contract protecting confidentiality, limiting use to mandate performance, and requiring deletion after the mandate; these DPT satisfy that requirement. Similar obligations under other state privacy laws are incorporated.

15. Prohibited Data & PCI Allocation. Subscriber must not input Account Data (PCI DSS cardholder data or Sensitive Authentication Data like CVV/track/PIN) into non-designated fields. Visual Matrix may detect, redact/delete, and log such data and charge reasonable remediation costs. To the maximum extent permitted by law, Visual Matrix hereby disclaims any liability for Subscriber’s PCI compliance.

16. Government Requests. Where reasonable and legally permitted, Visual Matrix will promptly notify Subscriber of government requests for Customer Data and challenge unlawful or overbroad demands.

17. Liability & Order of Precedence. The limitations of liability in the Agreement apply to these DPT. In case of conflict on data-protection terms, these DPT control.

Annex 1 — Description of Processing

• Subject matter & duration: Processing Customer Data to provide the Visual Matrix hospitality platform and support, for the term of the Agreement.
• Nature & purpose: Hosting, storage, retrieval, transmission, analytics/config, in-app messaging, and payment tokenization via designated PCI interfaces.
• Primary hosting locations: Customer Data is hosted on Microsoft Azure in the region associated with Subscriber’s account.
• EU residency: For Subscribers provisioned in the EU/EEA, Customer Data (including database backups) is stored within the EU.
• Access for support: Visual Matrix personnel may remotely access Customer Data from outside the hosting region solely to provide the Services or support, subject to access controls and the transfer safeguards in Section 12.
• Types of Personal Data: Guest and employee identifiers (name, email, phone), reservation details, stay history, preferences, limited payment tokens (no PAN/CVV outside tokenized flows).
• Special categories: None intentionally collected.
• Data subjects: Hotel guests, employees/contractors, and authorized users.
• Frequency: Continuous and as initiated by Subscriber.

Annex 2 — Security Measures (summary)

• Architecture & isolation: Multi-tenant app with separate database instance per customer; network segmentation.
• Encryption: TLS in transit; AES-256 (or equivalent) at rest; managed key rotation.
• Access controls: RBAC, MFA support, least-privilege, quarterly access recertification, event logging/monitoring.
• Secure SDLC & vulnerability management: Code reviews, dependency scanning, patch SLAs, third-party testing.
• Backups & continuity: Encrypted, read-only backups with role-restricted access; database backups retained up to 90 days and overwritten on normal rotation; backups and disaster-recovery replicas are maintained within the account’s designated region (e.g., EU for EU-provisioned accounts); restoration only for DR/security/legal purposes; re-deletion of Customer Data after restoration.
• Incident response: Formal plan, 24×7 monitoring, breach notification workflow.
• Data handling: Prohibited-data detection/redaction in free-text; secure deletion/overwrites on retirement.
• Subprocessors: Security due diligence and contractual flow-down; periodic reassessment.

End of Agreement