Service Terms and Conditions
BASIS OF CONTRACT
These service terms create a legally binding contract between you and Hotel Benchmark Limited (“we”, “us” “our”) to govern the provision of our hotel benchmarking service (as described on our website) to you (referred to as the “Service”). Our contract with you shall commence on the date you sign up for our Service, and we shall continue to provide the Service to you until the date of termination, this can be when we or you terminate the contract.
You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us not expressly set out in these service terms. These service terms apply to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
SUPPLY OF BASIC/PREMIUM PRODUCT
We shall supply the Basic Product or the Premium Product (both described ) to you in accordance with these service terms. We shall have the right to make any changes to the Basic Product or the Premium Product which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Basic Product or the Premium Product. We shall not seek your consent to do so, and we shall not issue a notification to you. If any changes to the Service would materially affect the nature or quality of the Service we offer you, we shall notify you of this change, and you shall have the right to terminate and unsubscribe with effect from the date of the change. In such a case, we shall offer a pro-rata refund to you if you have paid for a Service. In relation to data supplied by you, this data shall be included and used in accordance with our business practices until we can reasonably and practically withdraw the data from our database and cease the use of that data. This means that your data may continue to be used for a number of weeks post termination of your subscription service.
We shall make the benchmark reports available to you on our website on a monthly basis, no later than the 15th business day following the last business day of the previous month, unless matters outwith our control prohibit us from doing so. In relation to the data you have provided to us, we shall only share this data in our reports with other customers once your data is anonymised. No raw data you share with us shall be shared with any third party. In providing your data, you acknowledge and agree that your hotel name will be displayed to other users of our services but the confidentiality of your raw personal data will be maintained. To protect the security of the customer data we receive, we shall seek to ensure that the servers operated by us are secure and free from viruses. More information on our approach to data security can be found in our .
We give no warranty as to the accuracy of our reports which are made available on an “as is” basis, and we are not liable for any incorrect results arising from unclear, erroneous, incomplete, false or misleading data provided to us by you or other customers.
You must provide us with such information and materials as we may reasonably require in order to supply the Basic Product or the Premium Product to you and other customers. This includes providing us with your data collected via Google Analytics and ensuring that such information is accurate in all material respects.
If performance of any of our obligations under the contract is prevented or delayed by any act or omission by you – including those acting on your behalf – we have the right to suspend your access to the Basic Product or the Premium Product, and we shall not be liable for any costs or losses sustained or incurred by you arising from the suspension.
We shall make our website available to you for the purposes of providing our Benchmark reports. We shall use reasonable endeavours to have our website available 24 hours a day, seven days a week, except for: planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and unscheduled maintenance performed outside normal business hours. Notwithstanding the foregoing, we do not warrant that your use of our website will be uninterrupted or error-free; and we are not liable for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. You acknowledge that our reports are made available on our website and may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
CHARGES AND PAYMENT
The Basic Product shall be provided free of charge. To unsubscribe from this free service, please login to your account, navigate to your account settings where you can delete your account. The subscription fee for our Premium Product is explained in our . If you wish to cancel your subscription to our Premium Product, please login to your account and navigate to your account settings where you can cancel your subscription and subsequently delete your account. No refunds shall be given for Service provided.
If you fail to make any payment due to us by the due date for payment (Due Date), we reserve the right to charge interest on the overdue amount at the rate of 3 per cent per annum above the then current Bank of England’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly. You shall pay all amounts due in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount in whole or in part.
Any additional services not falling within the scope of the Basic or Premium Product shall be discussed and the scope and fee agreed in writing. These service terms shall apply to any such additional services unless stated otherwise by us in writing to you.
INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in or arising out of or in connection with our provision of, and your access to the Basic Product or the Premium Product (including all IP in our reports) shall be owned by us. You agree to take any action required to give effect to this clause including signing any assignation.
We grant to you a licence to use our reports for the sole purpose of internal business analysis. You are expressly prohibited from sharing our reports with any external third party, unless that third party is your business advisor.
USE OF CLIENT DATA
You hereby grant to us a non-exclusive royalty-free, worldwide, perpetual, sub-licensable licence to use and share the data you provide to us in anonymised form for the following purposes, which include but are not limited to:
- To allow us to provide the Basic Product or the Premium Product;
- For the purpose of providing benchmarking reports for other clients in the same Basic Product or Premium Product index; and
- In publications, including but not limited to benchmarking reports relevant to the accommodation sector
In providing information to us, you acknowledge and agree that your hotel’s name and location will be displayed to other users of our services, but the confidentiality of your raw data will be maintained.
Each of the parties shall maintain and procure the maintenance of the confidentiality of confidential information at all times and shall keep and procure the keeping of all confidential information secure and protected against theft, damage, loss or unauthorised access, and shall not at any time, without the prior written consent of the other party, directly or indirectly, use or authorise or permit the use of or disclose, exploit, copy or modify any confidential information, or authorise or permit any third party to do the same, other than for the sole purpose of the performance of its rights and obligations hereunder.
LIMITATION OF LIABILITY
Nothing in these service terms shall limit or exclude our liability for: death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors; any damage incurred by you as a result of our fraud or fraudulent misrepresentation; or any liability to the extent that it cannot be excluded or limited by law. Subject to the foregoing, we shall not be liable to you in connection with the provision of the Basic Product or the Premium Product or any associated service, for any loss of profits, loss of business, loss of goodwill, loss of contract, loss of anticipated savings or any other indirect or consequential losses, nor for any losses nor for any damages which were not reasonably foreseeable by the Consultant at the time of entering into the Benchmarking Agreement, whether arising from breach of contract or delict/tort or negligence or breach of statutory duty or in any other way. Our entire liability to you under or in connection with these service terms or the provision of the Basic Product or the Premium Product, whether arising from delict/tort or negligence or breach of statutory duty or in any other way, will be limited to the amount paid to us by you in respect of the provision of the Basic Product or the Premium Product in the preceding six (6) month period. Where no fee is paid, our liability to you will be nil. It is recommended that you take out your own insurance to cover any risks and associated costs incurred, but we recommend that you take independent advise on this and on these service terms generally.
Except as set out in these service terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these service terms.
You agree to indemnify us, our officers, directors, employees, agents and third parties, for any claims, losses, costs, liabilities and expenses (including professional fees) arising from your breach of these service terms, any third party claims directed at us and resulting from your use of our Service, or your breach of any applicable laws, including data protection laws.
You can unsubscribe from our Service by logging into your account and navigating to your account settings where you can delete your account. If you are on a paid monthly Premium service, you can downgrade to the free Basic service or delete your account at any time. No refund will be payable for any remaining days in the month. The fee payable for our Service will be as set out in our .
We can terminate these service terms and cease the provision of the Service at any time and for any reason. Within a reasonable period following termination, we shall ensure the removal of all analytics data feeds to your database which are accessible by us.
Force Majeure Event means an event beyond the reasonable control of us including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of us or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of ours or our subcontractors. We shall not be liable to you as a result of any delay or failure to perform its obligations under these terms as a result of a Force Majeure Event.
Assignment and subcontracting: We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under these terms and we may subcontract or delegate in any manner any or all of its obligations under these terms to any third party or agent. You shall not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these service terms.
The service terms, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Scots law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Scotland.