VISUAL MATRIX
ACCESS TERMS AND CONDITIONS

This Visual Matrix Access Terms and Conditions (“Agreement”), entered into as of the date the Subscriber first places an order for services (the “Effective Date”) is by and between Image Hotel Systems, LLC, a Texas limited liability company dba Visual Matrix with principal offices located at 1101 E. Arapaho Rd, Ste 240, Richardson, TX 75081 (“Visual Matrix”), and the undersigned subscriber (the “Subscriber”).

WITNESSETH

WHEREAS, Visual Matrix has developed and markets computer software programs 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.

WHEREAS, Subscriber wishes to obtain a subscription (as hereinafter defined) for use of the Software Product in accordance with the terms and conditions set forth in this agreement.

NOW, THEREFORE, 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

(a) “Code” shall mean the source and object codes for a computer software program.

(b) “Documentation” shall mean manuals and other written materials or diagrams that relate to the “Software Product” 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.

(c) “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.

(d) “Modification” shall mean any modification or revision to the “Software Product” 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.

(e) “Upgrade” shall mean each new release of the “Software Product” including enhanced user, technical or business functionality. It does not include upgrades for custom software running as part of or in conjunction with the “Software Product”.

(f) “Site” means the location identified below the signature page of this Agreement as the site of the Software Product.

(g) “Support” includes phone and email assistance in installing and running the “Software Product” 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 Software Product or maintaining portions of the Software Product affected by a Subscriber modified portion of the Software Product.

(h) “Software Product” shall mean the computer software developed by Visual Matrix, together with all Documentation related to such software, and any Modifications to such software made by Visual Matrix.

(i) “Renewal Term” means subsequent terms of twelve (12) months beginning after the Initial Term.

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 Software Product 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 Software Product; (2) modify or prepare derivative works of the Software Product; (3) transmit the Software Product over a network, by telephone, or electronically using any means whatsoever; (4) move or transfer the Software Product license from the Site; or (4) reverse engineer, decompile or disassemble the Software Product. Subscriber agrees to keep confidential and use best efforts to prevent and protect the Software Product, including the Code for the Software Product, from unauthorized disclosure or use.

ARTICLE 3
SUBSCRIPTION FEE

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). 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. After the initial term, Visual Matrix may increase the monthly subscription fee as set forth in the Service Order upon thirty (30) days’ notice to Subscriber. The increased monthly subscription fee shall become effective on the date specified in the notice.

ARTICLE 4
TERM AND TERMINATION

a. The Initial Term of this Agreement as established in the Service Order, beginning on the Effective Date of this Agreement. The Agreement shall renew for successive terms of one (1) year unless either Party gives the other Party written notice at least thirty (30) days prior to the renewal date (each a “Renewal Term”). Pricing during the Renewal Term shall be at Visual Matrix’s usual rates for such Services, as they exist at the time of the renewal.

b. Subscriber may terminate this Agreement at anytime with at least 90 days notice to Visual Matrix, by notifying Visual Matrix in writing of its election to terminate this Agreement; provided however that if Subscriber terminates this Agreement at anytime after the thirtieth (30th) day following the Effective Date, Subscriber agrees to pay an early termination fee equal to the fees for the remaining months left in the Initial Term or the Renewal Term, as applicable.

c. Notwithstanding the forgoing, if Visual Matrix is unable to meet an agreed-upon implementation timeline, Subscriber may choose to terminate this Agreement and the early termination fee shall be waived (but any one-time fees as set forth on the Service Order will not be refunded).

d. Subscriber is required to pay all fees payable to the Date of Termination, including normal Monthly Subscription Fees. The Monthly Subscription Fee will be pro-rated to the Date of Termination. A notice of Early Termination under this Section shall not limit any rights or remedies Visual Matrix may have under this Agreement if Subscriber is in default under this Agreement at the time of such notice or thereafter, including, without limitation, to terminate or suspend services, or to sue for unpaid fees under this Agreement.

e. Following termination of this Agreement, Subscriber will immediately cease to use the Software Product (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 software and documentation in Subscriber’s possession.

f. Subscriber understands and agrees that in order to use the Software Product and/or certain features of the Software Product, 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 the Software Product and/or certain features of the Software Product immediately upon written notice to Subscriber.

g. Visual Matrix may terminate this Agreement at any time and for any reason with sixty (60) days written notice to Subscriber.

h. Visual Matrix may terminate this Agreement due to breach of the terms of this Agreement (1) immediately for breach of Articles 2, 5, or 7; (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 Software Product during the notice and cure period.

i. Visual Matrix does not retain Subscriber data, and may delete such data thirty (30) days after termination of Services. Any access by Subscriber to data in the Software Product after the termination date, or other transitional services require additional fees, to the extent such data is available (minimum fee $2,500).

ARTICLE 5
PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION

a. 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, software, 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.

b. 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.

c. 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.

d. 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.

e. 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.

f. 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 3(b), or when such Confidential Information of the disclosing party is no longer in the custody or control of the receiving party.

g. The Software Product, including the Documentation and any Modifications made by Visual Matrix, are and shall remain the exclusive property of Visual Matrix. Subscriber acknowledges that the Software Product 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 same of their obligation to keep the property and information confidential.

ARTICLE 6
MODIFICATIONS; VISUAL MATRIX SUPPORT; UPGRADES.

Any Modifications and/or Updates to the Software Product made by Visual Matrix will be furnished to the Subscriber as soon as reasonably practicable after 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 Software Product under this Agreement. Support for the Software Product will be provided in accordance with our support guidelines, currently available at https//vmpms.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.

ARTICLE 7
SUBSCRIBER OBLIGATIONS.

a. Visual Matrix only authorizes use of the Software Product on those computer systems that meet or exceed Visual Matrix’s system requirements outlined and updated from time to time at: https://help.vmpms.com/portal/en/kb/articles/computer-system-requirements-c.

b. Subscriber understands and agrees that the Software Product 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 Software Product due to a third-party technology or system requirement failure, including a reduction in internet or network speed or an internet outage.

c. 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.

d. 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.

e. 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.

ARTICLE 8
WARRANTIES.

a. Visual Matrix represents and warrants that it owns or has the right to the Software Product and it has the right to license the use of the Software Product as set forth in Article 2 above. Visual Matrix does not warrant that the Software will be error free.

b. 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.

c. Visual Matrix shall not be liable for any loss or damage caused by delay in furnishing the Software Product or any other performance under this Agreement.

d. 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.

e. 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 Software Product may interact with or be installed on (“Third-Party Products”), and provided 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://vmpms.com/privacy-policy/
.

f. 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 Software Product as furnished by Visual Matrix and the use thereof is 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 Software Product 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 Software Product 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 Software Product; or (ii) replace or modify the Software Product 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 Software Product 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.

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) Workmen’s Compensation – Statutory; (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.
MISCELLANEOUS

a. NOTICES. All notices must be in writing and shall be made by hand delivery, by a recognized overnight courier, or by certified mail, return receipt requested. Notices to Visual Matrix shall be sent to Visual Matrix, 1101 E. Arapaho Rd, Ste 240, Richardson, TX 75081 and notices to Subscriber shall be sent to the Subscriber at the address set forth on the signature page hereof. Notices shall be deemed to have been made and received upon the earlier to occur of (i) actual receipt, or (ii) the third day after mailing using the U.S. Postal Service.

b. 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.

c. 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.

d. 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.

e. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the 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.

f. 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.

g. 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://vmpms.com/tos

h. 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. 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 a process. Subscriber understands that notice regarding a Subscriber ownership change is important to facilitate a smooth transition of the locations, booking data, etc… to the new owners. Certain set-up and transition fees may be required, depending on the specific situation.

i. 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.

j. 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.

k. ELECTRIC 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.

End of Agreement

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