LAST REVISED: August 20, 2015
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING THE HOTELTONIGHT APPLICATIONS OR ANY SERVICES PROVIDED BY US, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE HOTELTONIGHT APPLICATION OR ANY SERVICES PROVIDED BY US.
These terms of service (these “Terms”) apply to your access and use of our mobile applications, websites, emails, text messages and social media accounts (collectively, the “Application”) provided by Hotel Tonight, Inc. (“HotelTonight”, “we”, “our” or “us”) and any feature (including, without limitation, the “HotelTonight Aces”feature), content, tools and services accessible by means of the Application as well as the booking of hotel accommodations through the Service. The Application and these services are collectively referred to as the “Service.” These Terms do not alter in any way the terms or conditions of any other agreement you may have with HotelTonight for the Service (or any part thereof). If you are using the Service on behalf of an entity, you represent and warrant that you are authorized to accept these Terms on the entity’s behalf, and that the entity agrees to be responsible to HotelTonight if you violate these Terms.
Your use of the Service is conditioned upon the version of these Terms in force at the time of your use. We reserve the right to change these Terms at any time and you waive any right you may have to receive specific notice of such changes or modifications. If you continue to access or use the Service following our posting of any changes to these Terms, we will consider that you have accepted the changes. Therefore, you must regularly review these Terms to ensure you understand the terms and conditions that apply to your access and use of the Service. If you do not agree to the changed Terms, you must stop accessing or using the Service.
If you have any questions regarding the use of the Service, please email us at firstname.lastname@example.org.
DEVICE USAGE TERMS AND CONDITIONS
You acknowledge and agree that your use of the Service must also be in accordance with the usage rules established by your mobile device platform or service provider.
REGISTRATION DATA; ELIGIBILITY
To access certain areas and features of the Service, you may be required to register with HotelTonight. If you register, you will (i) provide accurate, current and complete information about you as may be prompted by any signup, login and/or registration forms made available via the Service (the “Registration Data“); (ii) maintain and promptly update the Registration Data, and any other information you provide to HotelTonight, in order to keep it accurate, current and complete; and (iii) accept all risk of unauthorized access to the Registration Data and any other information you provide to HotelTonight.
HotelTonight is under no obligation to retain a record of your account or any data or information that you may have stored by means of your account or your use of the Service. You are only authorized to create and use one account for the Service and are prohibited from using alter egos or other disguised identities when using the Service. You are under no obligation to use or continue to use the Service and may stop using the Service without notice to HotelTonight.
You may not use the Service if you are under 18 years of age (or the age of majority in your jurisdiction).
GRANT AND RESTRICTIONS
Subject to the terms, conditions and limitations set forth in these Terms, HotelTonight grants you a non-exclusive, non-transferable and revocable license to use the Application on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by HotelTonight that replace and/or supplement the original Application, unless the upgrade is accompanied by a separate license, in which case the terms of that license will govern.
You will not do, and will not authorize or permit any third party to do, any of the following: (i) distribute or make the Application available over a network where it could be used by multiple devices at the same time; (ii) rent, lease, lend, sell, redistribute or sublicense the Application; (iii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the Application, any updates or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law) or (iv) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Application. If you violate any of the foregoing restrictions, your right to use of the Application will immediately cease, and you will have infringed the copyright and other rights of HotelTonight, which may subject you to prosecution and damages. HotelTonight reserves all rights not expressly granted to you in these Terms.
CONSENT TO USE OF DATA AND MOBILE COMMUNICATIONS
In exchange for HotelTonight providing you with access to the Service, you consent to HotelTonight collecting and using technical data, personal information and related information in connection with your use of the Service, including, but not limited to, contact information and technical information about your device, system and application software, and peripherals, that are gathered periodically to facilitate the features and functionality of the Service and of software updates, product support and other services. You also consent to our communicating with you about the Service.
COMPATIBILITY WITH MOBILE DEVICES
HotelTonight does not warrant that the Service will be compatible or interoperable with your mobile device or any other hardware, software or equipment installed on or used in connection with your mobile device.
The Service requires and uses phone service, data access and text messaging capabilities. Carrier rates for phone, data and text messaging may apply, and you are responsible for all of these charges.
HotelTonight attempts to be as accurate as possible. If you have reason to believe that a hotel room you booked through the Service or other product or feature does not meet the claims advertised within the Service, you must contact HotelTonight immediately (and in any case no later than three business days following the check-in date or feature request date). Your failure to contact us within this period may affect our ability to investigate and resolve your claim.
HotelTonight makes no guarantee that the prices advertised through the Service represent (i) the lowest price for a hotel room in every area on any particular day or (ii) the published price for a hotel room on another website or publication not affiliated with HotelTonight in every area on any particular day.
BOOKING ROOMS THROUGH THE HOTELTONIGHT SERVICE
When you book a room using the Service, you are representing the following: (i) any credit information you supply is true and complete; (ii) charges incurred by you will be honored by your credit card company and (iii) you will pay the posted price for the hotel room, even if you are unable to consummate your stay in that hotel room. Posted room rates include applicable taxes. We will not issue Value Added Taxes (VAT) invoices for any purchases made through the Service. You are responsible for paying the hotel directly for any room upgrades or other incidental charges you make once you are at the hotel.
TAXES AND FEES
When you book a room using the Service, we facilitate your booking with the hotel and will charge your method of payment for Taxes and Fees. This amount includes an estimated amount to recover the amount we pay the hotel for taxes owed by the hotel, including, without limitation, sales and use tax, occupancy tax, room tax, excise tax, value added tax and other taxes. In some cities, the tax may include government imposed service fees or other fees not paid directly to a taxing authority but still required by law. The amount paid to the hotel for taxes may vary from the amount we estimate. The balance of the amount in Taxes and fees is a fee we retain as part of the compensation for our services and to cover the costs of your reservation, including customer service costs. The amounts for Taxes and Fees varies based on a number of factors including, without limitation, the amount we pay the hotel and the location of the hotel, and may include profit we retain.
For hotel bookings in certain jurisdiction, Taxes and Fees includes a payment of tax we are required to collect and remit to the jurisdiction for tax owed on amounts we retain as compensation for our services. In every other jurisdiction, we are not the vendor collecting and remitting taxes to the applicable taxing authorities. Our hotel suppliers include all applicable taxes in the amount we are required to pay over to them. We are not a co-vendor with the hotel. Tax rates and the type of taxes vary greatly by location.
HOTEL OVER-BOOKINGS AND CANCELLATIONS
If a hotel is unable to honor your reservation, contact us immediately, and we will work with you and the hotel to find you alternative accommodations (such as an available room at a different location).
Any booking of a hotel’s room through the Service is definitive. We may, in our sole discretion, provide HotelTonight credits for cancelled booking.
Personal Invite Code and Credits
You can earn credits by inviting friends and family to download and book hotels using your personal invite code. After creating your HotelTonight account, you will receive a personal invite code. If you share that code with friends and family, they can receive $25 off their first booking of at least $100 or equivalent (excluding taxes and fees). If the total room reservation charge on their booking is at least $100 or equivalent (excluding taxes and fees), you’ll get $25 in credits when they book. You can use your credit on any future booking within the next year. Everyone wins.
Your personal invite code may only be used for personal and non-commercial purposes. Feel free to share your invite code with your friends and family via email, Twitter feeds, Facebook pages, personal blogs, etc. where you are the primary content owner. However you cannot distribute your invite code on sites where you are a contributor but not the primary content owner (e.g., Wikipedia, coupon websites, app stores and app review websites) and you cannot promote your invite code via Search Engine Marketing (e.g., AdWords/Yahoo/Bing).
Credits expire one year from the date they are earned. Credits will be applied to hotel bookings in the corresponding currency. Example: HotelTonight credits stated in USD will only be applied to hotel bookings billed in USD. HotelTonight credits (however earned) are not redeemable for cash or cash equivalents, are non-transferable and may not be applied towards prior purchases. Other restrictions may apply.
Promo Code Policy
If you are using a promo code, such as our“TONIGHT” code for first time bookers or another promo code we advertise, unless otherwise specified, eligible bookings must have a total room reservation charge of at least US $100 or equivalent (excluding taxes and fees) and be made on the HotelTonight app for you to use the code. Promo codes may be available in a limited quantity and we reserve the right to “retire” a promo code at anytime, meaning you might find an old promo code out there that is no longer valid. Expiration dates of promo codes cannot be changed or extended. Promo codes can only be applied to future bookings and cannot be applied towards prior bookings.
Promo codes are valid for a single use per HotelTonight user and are not transferable to another user or redeemable for cash. Codes may not be combined with another HotelTonight coupon or discount code. HotelTonight reserves the right to any remedy, including denial of the discount or cancellation of your account or reservations, if fraud, tampering, or violations of these Terms are found to occur. Additional restrictions may apply.
If you break any of the rules applicable to personal invite codes or promo codes, the HotelTonight Grinch may take all of your credits away, cancel a promo code and/or suspend your account.
When you use the Service or send emails to us, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by email or providing notices via the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that these communications be in writing. Electronic communications from us, including emails, may include marketing and promotional content.
Your use of the Service and your contact, interaction or dealings with any third parties arising out of your use of the Service is solely at your own risk. The hotels and other suppliers of HotelTonight are independent contractors and not agents or employees of HotelTonight. HotelTonight is not responsible for, and will not be held liable for, the acts, errors, omissions, representations, warranties, breaches or negligence of any of these hotels or suppliers for any personal injuries, death, property damage, loss, theft or other damages or expenses resulting therefrom.
USING THE HOTELTONIGHT“ACES” Feature
Use of the HotelTonight Aces feature requires that you have a valid account on the HotelTonight application.
We will not book or request any products or services on your behalf which include alcohol, adult entertainment, services from a hotel other than the one at which you booked through the Service, or any other product or service we deem undesirable in our sole discretion. HotelTonight makes no guarantee or warranty about any of the products or services, and you agree that HotelTonight will have no liability related to such products or services.
USER CONTENT AND YOUR CONDUCT
The Service includes forums and other interactive areas or services (“Interactive Areas”) in which you or other users can create, post or share content, materials, data, information, text, photos and/or other materials (“User Content”). You are solely responsible for your use of such Interactive Areas and the User Content you share. You hereby grant HotelTonight a perpetual, irrevocable license to use and display any User Content you post, upload or otherwise provide to HotelTonight, including any photos you might provide through our “Rate Your Stay” feature.
You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Service any of the following:
You further agree that you are solely responsible for your conduct while using the Service and that you will not do any of the following in connection with the Service or its users:
HotelTonight takes no responsibility and assumes no liability for any user conduct or for any User Content posted, stored or made available via the Service. HotelTonight will not be liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter through the Service. Your use of the Service, including any Interactive Areas, is at your own risk. Enforcement of the user content and conduct rules set forth in these Terms is solely at HotelTonight’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Service will not contain any content that is prohibited by these rules.
HotelTonight may provide third-party content via the Service and may provide links to webpages and content of third parties (collectively, “Third-Party Content”) as a service to those interested in this information. HotelTonight does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding Third-Party Content including, but not limited to, its accuracy or completeness. HotelTonight is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use Third-Party Content at their own risk.
ADVERTISEMENTS AND PROMOTIONS; THIRD-PARTY PRODUCTS AND SERVICES
HotelTonight may run advertisements and promotions from third parties via the Service or may otherwise provide information about or links to third-party products or services via the Service. Your business dealings or correspondence with, or participation in promotions of, these third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and those third parties. HotelTonight is not responsible or liable for any loss or damage incurred as the result of any such dealings or promotions or as the result of the presence of non-HotelTonight advertisers or third-party information accessible via the Service.
The HotelTonight name, “HT”, “Book in the Moment”, “Impulse Deals”, “Aces”, “Plan Less. Live More.” and “h” bed logo and other trademarks used by HotelTonight are trademarks or registered trademarks of Hotel Tonight, Inc. in the United States and in numerous international jurisdictions. These marks may not be reproduced or used without HotelTonight’s prior written permission. You may not use any metatags or any other “hidden text” using “HotelTonight” or any other name, trademark or product or service name of HotelTonight without our prior written permission. In addition, the look and feel of the Service, including all page headers, custom graphics, button icons and scripts, are the service mark, trademark and/or trade dress of HotelTonight and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos made available via the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
The Service (including, but not limited to, the Application) contains the valuable proprietary content of HotelTonight and our licensors and is protected by copyright and other intellectual property laws and treaties. You will not use the Service (including, but not limited to, the Application) except in its intended manner in accordance with the terms and conditions of these Terms.
TERMINATION OR MODIFICATION OF APPLICATION
HotelTonight reserves the right to change, suspend, remove, discontinue or disable access to the Service (including, but not limited to, the Application) at any time without notice. In no event will HotelTonight be liable for the removal of or disabling of access to any portion or feature of the Service (including, but not limited to, the Application).
If you breach any of the terms or conditions of these Terms or HotelTonight discontinues the Application, these Terms will automatically terminate. In the event of the termination of these Terms for any reason, the license granted to you in these Terms will immediately terminate and you must immediately stop all use of the Service (including the Application) and destroy or erase all copies of the Application in your possession or control. All of the sections of these Terms that by their nature should survive termination will survive any termination of these Terms. For avoidance of doubt, the License section will not survive termination of these Terms. Any use of the Service after termination is unlicensed and is in violation of the copyright and other rights of HotelTonight. HotelTonight and our affiliates reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in our sole discretion.
We reserve the right to investigate complaints or reported violations of these Terms and to take any action we deem appropriate, including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators or other third parties, and disclosing any information necessary or appropriate to such persons or entities relating to your Registration Data, usage history, posted materials, IP addresses and traffic information.
INFORMATION AND PRESS RELEASES
The Site may contain information and press releases about us. We disclaim any duty or obligation to update this information. Information about companies other than ours contained in any press release or otherwise should not be relied upon as being provided or endorsed by us.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THE APPLICATION) IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THE APPLICATION) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HOTELTONIGHT DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS AND THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THE APPLICATION) WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT HOTELTONIGHT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. HOTELTONIGHT DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY HOTELTONIGHT OR OUR AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY.
You will defend, indemnify and hold us, our independent contractors, service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened third-party suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to (i) your conduct; (ii) your violation of these Terms or your violation of the rights of any third party; or (iii) any User Content you share.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL HOTELTONIGHT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, BUSINESS, CONTRACTS, REVENUE OR ANTICIPATED SAVINGS; LOSS OR CORRUPTION OF DATA; BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THE APPLICATION), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF HOTELTONIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL HOTELTONIGHT’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE (INCLUDING, BUT NOT LIMITED TO THE APPLICATION) EXCEED $100.00 UNITED STATES DOLLARS.
REPEAT INFRINGER POLICY
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, HotelTonight has adopted a policy of terminating, in appropriate circumstances and at HotelTonight’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. HotelTonight may also at our sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that any material made available via the Service infringes upon any copyright which you own or control, or that any link made available via the Service directs users to material that infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to receive notification of claimed infringement: Copyright Agent
Full address of Designated Agent to which notification should be sent: 901 Market St, Suite 310, San Francisco, CA 94103
Telephone Number of Designated Agent: (800) 208-2949
Facsimile Number of Designated Agent: (800) 208-6367
Email Address of Designated Agent: email@example.com
See 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages including, but not limited to, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
APPLICABLE LAW AND VENUE
The Terms and your use of the Service, including, but not limited to, the Application will be governed by and construed in accordance with the laws of the State of California, applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. In the event of any matter or dispute arising out of or in connection with these Terms, you and HotelTonight will submit to the exclusive jurisdiction of the state and federal courts in the State of California.
You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported into any U.S. embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Application for any purposes prohibited by United States law, including, but not limited to, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
US GOVERNMENT RIGHTS
The Application and related documentation are “Commercial Items,” as that term is defined in 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as these terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through § 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users only as Commercial Items and with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, without limitation, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms will continue in full effect. Only you and HotelTonight are entitled to enforce these Terms. No third party will be entitled to enforce any of the terms and conditions herein.
OUR CORPORATE ADDRESS
Hotel Tonight, Inc.
901 Market St, Suite 310
San Francisco, California 94103
*You may also contact our member support team at firstname.lastname@example.org