THIS IS A BINDING AGREEMENT
Effective Date: January 7, 2019
Subject to the terms and conditions set forth below (the “Terms and Conditions”), registered Hotel Tonight customers (“HT Perks Members”) can earn discounts, special offers, and other benefits (“HT Perks”) in connection with qualifying purchases made through the Hotel Tonight mobile application ("App") or the desktop or mobile website (collec that HT Perks Members can enjoy and otherwise redeem for use under the Hotel Tonight perks program (the “Perks Program”) offered by Hotel Tonight Inc. ( “Hotel Tonight”). These Terms and Conditions are a binding agreement between you and Hotel Tonight and will govern your participation in any and all Perks Program offers and benefits.
HOTEL TONIGHT RESERVES THE RIGHT TO MODIFY OR TERMINATE THE PERKS PROGRAM IN ANY MANNER, IN WHOLE OR PART, AS OUTLINED BELOW, EVEN THOUGH SUCH CHANGES MAY PROSPECTIVELY AFFECT THE REDEMPTION VALUE OF THE SPEND ALREADY EARNED.
BY PARTICIPATING IN THE PERKS PROGRAM, YOU ACKNOWLEDGE, AGREE, AND CONSENT TO BE BOUND BY THESE TERMS AND CONDITIONS, INCLUDING MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION, AND THE DECISIONS OF HOTEL TONIGHT, WHOSE DECISIONS SHALL BE FINAL AND BINDING IN ALL RESPECTS. YOU AGREE THAT YOU WILL REVIEW THESE TERMS PERIODICALLY AND THAT YOU SHALL BE BOUND BY THESE TERMS AND ANY MODIFICATIONS HEREOF.
To be eligible for the Perks Program, you must be at least 18 years of age and the age of majority in your jurisdiction. To become an “HT Perks Member,” you must create a Hotel Tonight account ("Account") and complete a booking on the App or Website. Limit one (1) Account per person/email address. Anyone found attempting to use multiple/different Accounts, email accounts, identities, registrations, or logins, or otherwise attempting to obtain more than the stated limit of Accounts may be deemed ineligible, disqualified, and his/her Accounts may be cancelled, and all corresponding HT Perks may be void, in Hotel Tonight’s sole discretion. Only the individual named as the primary Account holder will accrue HT Perks.
HT Perks Members will qualify for HT Perks when the Account holder spends a certain amount on the App or Website for qualifying hotel booking(s), subject to any restrictions set forth in the hotel booking, at the time a particular promotional offer is made or as set forth in the HT Perks Frequently Asked Questions (“FAQs”) which are incorporated herein by reference (each a “Qualifying Purchase”). The HT Perks Member’s spend for each Qualifying Purchase will be calculated by Hotel Tonight. The total spend for all Qualifying Purchases is tallied in HT Perks Member’s Perks Program Account (subject to verification) (“Qualifying Spend”). Qualifying Spend is subject to verification by Company before being credited to HT Perks Member’s Account. By earning a certain amount of Qualifying Spend, HT Perks Members will qualify for different membership levels (“Membership Levels”) each level of which may qualify a HT Perks Member for additional HT Perks as set forth in more detail in the FAQs. Membership in the Perks Program may also qualify HT Perks Members for discounted rates on select hotel bookings, the availability of promotional credits (“Promotional Credits”) for use on future qualifying bookings and/or, for legal residents of the United States only, the opportunity to convert discounts on qualifying bookings in the United States as offered from time to time into credits for use in future qualifying bookings (“Save for Later Credits”), all in Hotel Tonight’s sole discretion and as set forth in more detail in the FAQ’s. Promotional Credits and Save for Later Credits may be referred to herein collectively as “Credits.” Available Credits can be viewed in the Booking Tab of the HT Perks Member’s Account. HT Perks Members will be automatically upgraded to the next Membership Level when they cumulate the minimum Qualifying Spend necessary for the next tier. Qualifying Spend can be earned through Qualifying Purchases made through the App or Website. However, use or redemption of Coupons are only available through the App.
Each HT Perks Member acknowledges and agrees that the decisions of Hotel Tonight shall be final, binding and conclusive in all matters relating to the Perks Program, including, without limitation, determinations regarding the accumulation of Qualifying Spend and/or Qualifying Purchases, and the validity and use of HT Perks. Hotel Tonight reserves the right to adjudicate all HT Perks discrepancies in its sole discretion, and HT Perks Members agree to abide with any such adjudication . HT Perks, Coupons, and Credits may not be sold, traded, bartered, auctioned (including through Internet auction sites), or given away. Qualifying Spend and HT Perks are null and void if not obtained through legitimate channels authorized by Hotel Tonight.
Hotel Tonight may offer additional ways to earn Qualifying Spend than as set forth herein or in the current FAQs, at its sole discretion, and which may be limited in time, with all methods of accumulation subject to the FAQs or other terms set forth at the time of offering (“Additional Terms and Conditions”). In the event of any conflict between these Terms and Conditions and any Additional Terms and Conditions, the Additional Terms and Conditions shall control. In the event of any conflicts between these Terms and Conditions and the FAQs, these Terms and Conditions will prevail. Hotel Tonight reserves the right to modify, terminate, change, and otherwise revise any of the ways to earn or redeem HT Perks (as well as the corresponding details of such method including, without limitation, the amount/value of HT Perks available and Membership Levels), all at any time in its sole discretion.
Qualifying Spend earned pursuant to a Qualifying Purchase that corresponds to a transaction that is not paid for or is credited or refunded for any reason, in whole or in part, will be deducted from the HT Perks Member’s Account. In the event that an HT Perks Member uses any HT Perks, including, without limitation, any Credits, Coupons or discounted rates, which are later determined by Hotel Tonight to be inapplicable to such HT Perks Member, Hotel Tonight reserves the right to reconcile the applicable charges and charge any amounts due to the method(s) of payment on file for such HT Perks Member.
The Company reserves the right to modify the amount of Qualifying Spend required to earn HT Perks or attain Membership Levels at any time in its sole discretion.
Hotel Tonight reserves the right, at its sole discretion, to introduce new HT Perks and Membership Levels, or modify or terminate existing HT Perks and Membership Levels, which may require a different Qualifying Spend value than those currently listed on the App, FAQs, or these Terms and Conditions. Hotel Tonight will give reasonable advance notice of any modification of the Terms and Conditions hereof which may materially adversely impact the prospective use of HT Perks. HT Perks Member’s continued use of the Perks Program, following the posting of conspicuous notice of any modification, will indicate HT Perks Member’s acceptance of any modification to the Terms and Conditions hereof. Hotel Tonight may terminate this Perks Program at any time in its sole discretion and in such event, Hotel Tonight may use commercially reasonable efforts to provide conspicuous notice prior to the effective date, during which time HT Perks Member may still accrue Qualifying Spend and redeem HT Perks. All HT Perks must be used prior to the effective date of termination. HT Perks Member should not rely upon the continued availability of the Perks Program or any HT Perks accumulated in connection therewith.
HT Perks accumulated on different Accounts or by different HT Perks Members MAY NOT be transferred, combined or aggregated. HT Perks, Credits (except as specifically permitted by Hotel Tonight), and/or Coupons do not constitute property, do not entitle a HT Perks Member to a vested right or interest, and have no cash value. Except as set forth by Hotel Tonight, HT Perks may not be redeemed for cash or sold/bartered. Any attempt to sell or transfer HT Perks may result in the forfeiture of HT Perks and/or Membership Level qualification. HT Perk offerings are on an “as available” basis and HT Perks Members may not be able to obtain discounts for all hotels or for any hotels in some destinations.
“Save for Later” Credits do not expire and are subject to the terms and conditions set forth herein and in the FAQs. Coupons offered via the Perks Program are subject to the terms and conditions set forth herein and in the FAQs. Promotional Credits may be used on any qualifying booking, subject to the terms herein. Coupons may only be used on qualifying bookings of at least $150, before taxes and fees. Promotional Credits and Coupons are valid for a single use only. Coupons may be combined with Promotional Credits and/or Save for Later Credits, but may not be combined with any other offers or other Coupons. Credits and Coupons are not redeemable for cash or cash equivalents, are non-transferable and may not be applied towards prior purchases. Promotional Credits expire one hundred eighty (180) days from the date of issuance. Coupons expire sixty (60) days from the date of issuance. Coupons may not be available for use on certain bookings, such as EAN hotels and those facilitated by Travelscape, LLC or other third party providers. Other restrictions may apply. Credits and Coupons may be applied to qualifying bookings during the booking process.
Upon termination of the Perks Program as set forth herein, each HT Perks Member will forfeit any HT Perks, Credits, and Coupons remaining in his/her Account or unclaimed HT Perks, including, rewards or prizes associated with his or her Account, without compensation.
HT Perks Members are solely responsible for all activities that occur when someone logs in to the Website or App using the HT Perks Member’s username and password. Without limiting any other remedies, Hotel Tonight may suspend or terminate any HT Perks Program account if Hotel Tonight suspects that any HT Perks Member or other person has engaged in fraudulent activity in connection with this Perks Program.
Hotel Tonight reserves the right at its sole discretion to prohibit any HT Perks Member from participating in any aspect of the Perks Program if Hotel Tonight deems or suspects that such HT Perks Member has engaged in or has attempted to engage in any of the following: (a) acting in violation of these Terms and Conditions; or (b) damaging, tampering with or corrupting the operation of the Perks Program, Website or App; or (c) acting with intent to annoy, harass or abuse any other person; or (d) any inappropriate, uncooperative, disruptive, fraudulent, potentially fraudulent, or unusual behavior or activity; or (e) activity deemed in the sole discretion of Hotel Tonight to be generally inconsistent with the intended operation of the Perks Program. Any decision Hotel Tonight makes relating to termination or suspension of any HT Perks Member’s participation in the Perks Program shall be final and binding in all respects. Hotel Tonight shall be the sole determiner in cases of suspected abuse, fraud, or breach of these Terms and Conditions or intent of these Terms and Conditions.
A summary of your HT Perks and Qualifying Spend may be viewed on the Booking tab of the App. Hotel Tonight will attempt to credit HT Perks Member’s Account with Qualifying Spend on a timely basis. In general, Qualifying Spend amounts will be posted to a HT Perks Member’s Account balance within approximately 1 day(s) of purchase, and available for redemption within approximately 1 day(s) of being posted to HT Perks Member's Account. However, HT Perks Member shall have the responsibility of ensuring that his or her Qualifying Spend is properly credited. Any claim for Qualifying Spend not credited accurately must be received by Hotel Tonight within one (1) month of the date of claimed accrual of Qualifying Spend. Hotel Tonight shall have no liability for any printing, production, typographical, mechanical, or other errors or for any delay or failure to credit Qualifying Spend to HT Perks Member’s Account. Hotel Tonight reserves the right to invalidate Qualifying Spend or HT Perks from a HT Perks Member’s Account if it determines that such Qualifying Spend or HT Perks were improperly credited to such HT Perks Member’s Account or obtained fraudulently. If you believe that you did not receive the correct amount of Qualifying Spend for any transaction, please contact Customer Service at 1-800-995-6698. However, Hotel Tonight’s determination as to the amount of Qualifying Spend and availability of HT Perks associated with any HT Perks Member’s account is final.
Federal, state, and local taxes applicable to value received by redemption of HT Perks, if any, are the sole responsibility of each HT Perks Member and Hotel Tonight shall not withhold or pay any amounts for federal, state or municipal income tax, social security, unemployment or worker’s compensation.
Hotel Tonight’s failure to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Hotel Tonight in writing. These Terms and Conditions, together with those items made a part of these Terms and Conditions by reference, are the entire agreement between Hotel Tonight and the HT Perks Member relating to the Perks Program, and supersede and preempt any previous terms for this Perks Program. If a court finds any of the terms set forth herein to be unenforceable or invalid, such term(s) will be enforced to the fullest extent permitted by applicable law and the other terms will remain in full force and effect.
To the fullest extent permitted by applicable law, no responsibility or liability is assumed by the Hotel Tonight for technical problems or technical malfunction arising in connection with any of the following occurrences which may affect the operation of the Perks Program, Website and/or App: hardware or software errors; faulty computer, telephone, cable, satellite, network, electronic, wireless or Internet connectivity or other online or other communication problems; errors or limitations of any Internet service providers, servers, hosts or providers; garbled, jumbled or faulty data transmissions; failure of any e-mail transmissions to be sent or received; lost, late, delayed or intercepted e-mail transmissions; inaccessibility of the Site in whole or in part for any reason; traffic congestion on the Internet or Website or App; unauthorized human or non-human intervention of the operation of the Perks Program, including without limitation, unauthorized tampering, hacking, theft, virus, bugs, worms; or destruction of any aspect of the Perks Program, or loss, miscount, misdirection, inaccessibility or unavailability of an Account used in connection with the Perks Program.
WITHOUT LIMITING THE FOREGOING, HOTEL TONIGHT MAKES NO WARRANTY OF ANY KIND REGARDING THE PERKS PROGRAM, WHICH IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HOTEL TONIGHT EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ITS PERKS PROGRAM WILL BE ERROR-FREE OR AVAILABLE AT ALL TIMES. HOTEL TONIGHT FURTHER DISCLAIMS ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS AND TIMELINESS OF ANY CONTENT OR INFORMATION DISTRIBUTED WITH RESPECT TO THE PERKS PROGRAM. HOTEL TONIGHT EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, CONFORMITY WITH DESCRIPTION AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THIS WARRANTY DISCLAIMER MAY BE LIMITED IN ITS APPLICABILITY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, HOTEL TONIGHT WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (COLLECTIVELY, “DAMAGES”) OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, WARRANTY OR OTHER LEGAL OR EQUITABLE GROUNDS (INCLUDING IN EACH CASE NEGLIGENCE), THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (A) ANY PARTICIPATION IN THE PERKS PROGRAM, INCLUDING, WITHOUT LIMITATION, THE EARNING OF HT PERKS AND THE USE AND/OR MISUSE OR ANY HT PERKS, (B) ANY FAILURE OR DELAY BY HOTEL TONIGHT IN CONNECTION WITH THE PERKS PROGRAM (INCLUDING, WITHOUT LIMITATION, THE USE OF, OR INABILITY TO USE, ANY COMPONENT OF THIS PERKS PROGRAM); OR (C) THE PERFORMANCE OR NON PERFORMANCE OF THE PERKS PROGRAM BY HOTEL TONIGHT, EVEN IF HOTEL TONIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HOTEL TONIGHT WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OF DAMAGE WHATSOEVER OR FOR ANY LOSS OF PROFITS, SAVINGS GOODWILL, OR REVENUE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF HOTEL TONIGHT’S NEGLIGENT, FRAUDULENT, OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT.
To the maximum extent permitted by law, all HT Perks Members, as a condition of participation in this Perks Program, agree to release Hotel Tonight from and against any and all liability, claims, or actions of any kind whatsoever for injuries, damages, or losses to persons or property which may be sustained in connection with accessing the App or Website, registering an Account, or otherwise participating in any aspect of the Perks Program, the receipt, ownership, or use/misuse of any HT Perks (if any), item or service redeemed with HT Perks Member’s HT Perks, or any typographical or other error in these Terms and Conditions or other Perks Program materials (including, without limitation, on any Perks Program website or app). If applicable, HT Perks Member bears all risk of loss or damage to any merchandise (if any) after it has been delivered.
These Terms and Conditions shall be construed and governed by the laws of the State of California, without giving effect to the state’s conflict of laws principles.
Any controversy or claim arising out of or relating to the Perks Program shall be settled by binding arbitration in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for claimant), or at such other location as may be mutually agreed upon by the parties, in accordance with the procedural rules for commercial disputes set forth in the Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”) then prevailing, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. The arbitrator shall use California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. In the event that the claimant is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Hotel Tonight will pay as much of the claimant’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable, or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor Hotel Tonight shall be entitled to arbitrate their dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within sixty (60) days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN THE HT PERKS MEMBER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. DO NOT PARTICIPATE IN THIS PERKS PROGRAM IF YOU DO NOT AGREE TO HAVE ANY CLAIM OR CONTROVERSY ARBITRATED IN ACCORDANCE WITH THESE TERMS AND CONDITIONS.
BY PARTICIPATING IN THIS PERKS PROGRAM, EACH HT PERKS MEMBER AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE PERKS PROGRAM, ANY MERCHANDISE OBTAINED IN CONNECTION WITH THE PERKS PROGRAM, OR ANY GIFT AWARDED, WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (2) ANY AND ALL CLAIMS, JUDGMENTS, AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE; (3) UNDER NO CIRCUMSTANCES WILL ANY HT PERKS MEMBER BE PERMITTED TO OBTAIN ANY AWARD FOR, AND EACH HT PERKS MEMBER HEREBY KNOWINGLY AND EXPRESSLY WAIVES ALL RIGHTS TO SEEK PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT-OF-POCKET EXPENSES), AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (4) HT PERKS MEMBER’S REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND HT PERKS MEMBER IRREVOCABLY WAIVES ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO EVERY HT PERKS MEMBER.