Intelligent Pricing Services Agreement

Intelligent Pricing Services Agreement

Important Notice

This Intelligent Pricing Services Agreement (this "Agreement") is entered into between HONG KONG SMART ORDER TECHNOLOGY CO., LIMITED ("Company", "we", "us" or "Smart Order") and the hotel, accommodation facility operator or other business entity that orders, activates or uses the Intelligent Pricing Services (the "Merchant" or "you").

This Agreement applies only to Merchants using the Services for business or professional purposes and is not directed at consumers. Each person accepting this Agreement on behalf of a Merchant confirms that he or she is at least 18 years old and has full authority to bind that Merchant to this Agreement.

Please read carefully the provisions relating to automatic price adjustments, authorisations for third-party platforms, data processing, disclaimers, limitation of liability, suspension and termination, and dispute resolution. By ticking a box online, clicking to accept, signing an Order Form, or activating or using the Services, you accept this Agreement. If you do not agree to this Agreement, you must not activate or use the Services.

1. Definitions and Contract Documents

  1. "Services" means the intelligent pricing, price recommendation, automated or manual price synchronisation, related analytics and ancillary technical services provided by the Company.
  2. "PMS Data" means data relating to the Merchant's accommodation business that is controlled by the Merchant or authorised by it for processing, including room types, inventory, availability status, prices, restrictions, historical operating data and booking trends.
  3. "Booking.com Data" means account, property, room type, price, inventory, restriction, booking and other relevant data lawfully obtained by the Merchant through Booking.com and authorised by the Merchant for processing by the Company.
  4. "Third-Party Platform" means Booking.com and any other online travel platform, channel management system or technical service provider separately connected by the Merchant.
  5. This Agreement, the applicable Order Form, the service description and Privacy Policy expressly incorporated by reference on the product pages, any data processing agreement (where applicable), and any other annexes signed by the parties constitute the entire agreement between the parties. In the event of any conflict, the following order of precedence applies: any written supplemental agreement signed by the parties; the data processing agreement; the Order Form; this Agreement; the service description; and other online rules. An Order Form shall take precedence over this Agreement only to the extent that it expressly states that it amends a specified provision of this Agreement.

2. Services

  1. Subject to the Merchant's authorisation, the Services may collect and analyse PMS Data and Booking.com Data authorised by the Merchant and, taking into account market conditions, supply and demand, historical performance and rules set by the Merchant, generate room-rate recommendations for a future period commencing on the relevant date.
  2. The Merchant may elect either:
    • Manual Price Adjustment: after the system generates recommendations, the Merchant reviews, confirms and implements the price synchronisation; or
    • Automatic Price Adjustment: based on price ranges, room-type mappings, date ranges and other rules pre-set and confirmed by the Merchant, the system automatically synchronises pricing results to the PMS, Booking.com or other channels activated by the Merchant.
  3. The Merchant shall set reasonable minimum and maximum prices, tax settings, currencies, room-type mappings, dates, inventory and sales restrictions, and shall test and verify them before enabling Automatic Price Adjustment. Unless expressly authorised otherwise by the Merchant, the system will not intentionally exceed the effective minimum and maximum price range set by the Merchant.
  4. The Services are decision-support and automation tools only. They do not constitute a guarantee of revenue, financial advice, investment advice or an undertaking to operate the Merchant's business. The Company does not warrant that any pricing recommendation will achieve any particular occupancy rate, revenue, profit, ranking or other commercial result.
  5. The Company may modify its algorithms, interface or non-core features to improve the Services, but will not materially reduce the core features of a paid Service during the applicable paid term without notice to the Merchant. Beta, preview or free features may be subject to additional terms displayed on the relevant page.

3. Accounts, Authorisations and Third-Party Platforms

  1. The Merchant represents and warrants that:
    • it has lawful ownership, management rights or sufficient authority in respect of the connected PMS accounts, Booking.com accounts, accommodation facilities and relevant data;
    • its use of the Services and provision of data to the Company do not breach applicable law, any agreement with guests or third parties, or Booking.com's applicable terms or technical rules; and
    • it has given the necessary notices to guests, employees and other relevant individuals and, where required by law, has obtained valid consent or has another lawful basis for processing.
  2. The Merchant authorises the Company, only to the extent necessary to provide, maintain, protect and improve the Services, to access and process the following Booking.com data and exercise the following permissions through official interfaces, authorisation tokens, channel-management connections or other technical means enabled or approved by the Merchant:
    • accommodation facilities, room types, rate plans, inventory, availability status and sales restrictions;
    • displayed platform prices, promotions and publicly available market-related information;
    • booking status and operational data necessary to forecast demand and synchronise prices; and
    • the minimum account permissions necessary to retrieve prices, generate price recommendations, update prices and perform synchronisation.
  3. Unless expressly agreed otherwise in a data processing agreement, the Services do not require the Merchant to provide complete guest payment-card information, plaintext account passwords or sensitive personal data unrelated to intelligent pricing. The Merchant must not proactively submit such data to the Services.
  4. The Merchant shall use separate and appropriately restricted accounts, roles or authorisation tokens, and shall properly administer passwords, multi-factor authentication, administrator privileges and access rights of departing personnel. Actions taken through the Merchant's account or by users authorised by the Merchant shall generally be treated as actions of the Merchant, except to the extent caused by the Company's breach of this Agreement, failure to take reasonable security measures, or unauthorised acts.
  5. The Merchant may withdraw its Booking.com connection authorisation at any time to the extent permitted by the product. Withdrawal may prevent the continued use of some or all intelligent pricing and synchronisation functions, but does not affect the lawfulness of processing carried out before withdrawal or rights and obligations already accrued by either party.
  6. Booking.com is an independent third party. Nothing in this Agreement creates an agency, partnership, joint venture, certification or endorsement relationship between the Company and Booking.com, unless expressly disclosed in this Agreement. The availability, interfaces, policies and fees of a Third-Party Platform are controlled by that third party. Where the Services are affected by a third party's changes, restrictions, interruptions or termination of access, the Company will provide reasonable assistance to the Merchant but is not responsible for that third party's acts or omissions.

4. Merchant Use Requirements

  1. The Merchant must not use the Services to:
    • breach any applicable law or violate any applicable sanctions, export-control, competition, anti-bribery, consumer-protection or accommodation-industry regulatory requirement;
    • infringe another person's privacy, intellectual property rights, trade secrets or other lawful rights;
    • upload malicious code or conduct unauthorised scanning, scraping, interference, reverse engineering or circumvention of security measures;
    • obtain, use or disclose accounts, personal data or confidential information which it is not entitled to process; or
    • use pricing functions in a fraudulent, misleading, market-manipulative or other improper manner.
  2. The Merchant is responsible for its pricing strategy, display of taxes and fees, pricing parity or differentiated pricing arrangements, promotions, guest communications and final sales decisions. The Company does not assume the responsibilities imposed by law on the Merchant as an operator, accommodation-service provider or data controller/data user.
  3. The Services and access rights are for the Merchant's internal business use only. Without the Company's prior written consent, the Merchant must not resell, rent, sublicense or make the Services available to unrelated third parties.

5. Data Protection and Information Security

  1. Each party shall comply with data protection laws applicable to it, including the Personal Data (Privacy) Ordinance (Cap. 486) of Hong Kong and, to the extent applicable, the EU General Data Protection Regulation, the UK GDPR, applicable state privacy laws in the United States and other laws of the relevant jurisdiction.
  2. In respect of personal data of guests, employees or other individuals for which the Merchant determines the purposes and means of processing, the Merchant will generally be the controller or, under Hong Kong law, the data user, and the Company will generally act as the Merchant's data processor and process such data only on the Merchant's documented lawful instructions. Where the Company independently determines the purposes and means of processing for account administration, security, billing, audit or compliance with legal obligations, the Company acts as an independent controller or data user for such limited processing.
  3. The Company will:
    • process data only as necessary to provide, secure, maintain and improve the Services and to comply with legal obligations;
    • implement technical and organisational measures appropriate to the risk to protect data against unauthorised or accidental access, use, disclosure, alteration, loss or destruction;
    • ensure that personnel authorised to access data are subject to confidentiality obligations;
    • engage sub-processors for cloud services, infrastructure, support or analytics only as necessary, and require them by contract to provide protection no less stringent than that required by applicable law and this Agreement; and
    • after confirming a security incident involving the Merchant's personal data, notify the Merchant without undue delay and provide information and cooperation reasonably required by the Merchant.
  4. Data may be processed in Hong Kong, the Merchant's location, the location of a Third-Party Platform, or other jurisdictions in which the Company or its sub-processors operate facilities. The parties shall provide any notices and implement any safeguards required by applicable law for cross-border processing. Where the laws of the EEA, the United Kingdom or another jurisdiction require standard contractual clauses, an international data transfer agreement or supplementary measures, the parties shall enter into the relevant data processing and cross-border transfer documentation separately.
  5. The Merchant must not instruct the Company to process data unlawfully. If the Company reasonably considers that an instruction breaches applicable law, it may suspend performance of that instruction and notify the Merchant until the parties have confirmed a lawful processing method.
  6. The Company will retain data for the period necessary to provide the Services and as required by applicable law, the Order Form and the Privacy Policy. After termination of this Agreement, the Company will allow the Merchant a reasonable period to export data that may lawfully be returned and will delete or anonymise Merchant Data after [30] days. Data in backups may be deleted on a rolling basis during the ordinary backup cycle, not exceeding [90] days, unless retention is required by law.
  7. Requests by the Merchant or relevant individuals for access, correction, erasure or other rights in relation to data shall be handled in accordance with applicable law, the Privacy Policy and the data processing agreement. Each party shall reasonably assist the other, within the scope of its responsibilities, in responding to such requests or regulatory investigations.
  8. Where the Services process personal data, the parties shall enter into a data processing agreement before activation. The data processing agreement shall at least specify the subject matter and duration of processing, data categories, categories of data subjects, purposes of processing, confidentiality, security, sub-processors, rights requests, data incidents, return or deletion, and cross-border transfer arrangements.

6. Service Availability, Suspension and Changes

  1. The Company will provide the Services with reasonable skill and care and in accordance with generally accepted industry standards, but does not warrant that the Services will always be uninterrupted, error-free or continuously compatible with every third-party system.
  2. The Company may suspend all or part of the Services for maintenance, upgrades, security incidents, Third-Party Platform failures, legal requirements or Force Majeure Events, and will give the Merchant prior notice where reasonably practicable. This does not apply to emergency maintenance, security risks or circumstances where notice is prohibited by law.
  3. The Company may immediately suspend relevant functions if the Merchant materially breaches this Agreement, fails to make payment when due, creates an actual security risk to the system or a third party through its use, or if the Company reasonably considers that continued provision of the Services would breach law or a mandatory rule of a Third-Party Platform. The Company will, where reasonably practicable, explain the reason and the conditions for restoration to the Merchant.
  4. The Company may amend this Agreement. For changes that materially affect the Merchant's rights or obligations, the Company will provide at least [30] days' notice through the system, by email or by other reasonable means. If the Merchant does not agree, it may terminate the affected Services before the amendment takes effect. Amendments required to comply with law, address an urgent security risk or meet a mandatory third-party requirement may take effect immediately, but the Company will notify the Merchant as soon as reasonably practicable. Continued use of the Services after the effective date constitutes acceptance of the amendment.

7. Fees and Taxes

  1. The Merchant shall pay the fees in the amount, currency, billing cycle and payment terms stated in the Order Form or on the applicable product page. Unless otherwise required by law or agreed by the parties in writing, fees already accrued are non-refundable.
  2. Prices generally exclude applicable taxes, bank charges and cross-border payment fees. The Merchant shall bear taxes that it is required by law to pay or withhold. If withholding is required by law, the Merchant shall provide valid supporting documentation and, to the extent permitted by applicable law and specified in the Order Form, make a gross-up payment.
  3. If the Merchant fails to pay when due, the Company may suspend the Services after giving a reasonable demand for payment and may charge late-payment interest at the lower of the rate permitted by applicable law and the rate otherwise lawfully specified.

8. Intellectual Property and Confidentiality

  1. The Company and its licensors own all intellectual property rights in the Services, software, algorithms, interfaces, documentation, trade marks and improvements. This Agreement does not transfer any intellectual property rights. It grants the Merchant only a limited, non-exclusive, non-transferable and revocable right, during the Term, to use the Services for its internal business purposes.
  2. The Merchant retains its rights in its data, brand and content and grants the Company a limited right during the Term to process, reproduce, transmit and display such materials as necessary to perform this Agreement.
  3. The Company may use aggregated data that does not reasonably identify the Merchant, any guest or any individual for service statistics, security, performance analysis and product improvement, provided that it does not use such data to disclose the Merchant's confidential business information.
  4. Each party shall protect non-public commercial, technical, pricing, security and operational information obtained in the course of the parties' cooperation and shall use it only to perform this Agreement. Where disclosure is required by law, a court, a regulatory authority or securities-exchange rules, the receiving party may make the disclosure after giving prior notice to the disclosing party to the extent legally permitted and shall limit the disclosure to what is necessary.
  5. The Company will not publicly use the Merchant's name, trade marks or case study for marketing without the Merchant's prior written consent. This does not restrict back-end identification and display necessary to provide the Services to the Merchant.

9. Warranties, Disclaimers and Limitation of Liability

  1. Each party represents and warrants that it has the right and authority to enter into and perform this Agreement. The Company warrants that it will provide the Services with reasonable skill and care and will use commercially reasonable efforts to remedy confirmed, reproducible defects that materially affect core functionality.
  2. To the maximum extent permitted by applicable law, and except as expressly set out in this Agreement, the Services are provided on an "as is" and "as available" basis. The Company gives no implied warranties of merchantability, fitness for a particular purpose, non-infringement or any particular result.
  3. The Merchant acknowledges that pricing recommendations may be inaccurate as a result of input data, sudden market changes, delays in third-party interfaces, mapping errors or model limitations. The Merchant shall configure appropriate price boundaries, permissions, alerts and human-review procedures according to its risk profile, and shall regularly verify synchronised prices. The Merchant shall promptly suspend Automatic Price Adjustment and notify the Company where results are manifestly abnormal.
  4. Neither party shall be liable to the other for any indirect, incidental, special, punitive or consequential loss, or for any loss of profits, revenue, goodwill, anticipated savings, opportunity or data, whether arising in contract, tort or otherwise, and whether or not advised of the possibility of such loss.
  5. To the maximum extent permitted by applicable law, each party's aggregate liability arising out of or in connection with this Agreement or the Services shall not exceed the total fees actually paid by the Merchant for the affected Services during the 12 months immediately preceding the event giving rise to liability. If the Services are provided free of charge, the aggregate liability shall not exceed HKD 10,000.
  6. The exclusions and limitations above do not apply to liability that cannot lawfully be excluded or limited, or to either party's fraud, wilful misconduct, negligence causing death or personal injury, infringement of the other party's intellectual property rights, or the Merchant's overdue fees. Liability relating to confidentiality or personal-data obligations may be limited only to the extent permitted by applicable law and any data processing agreement separately entered into by the parties.

10. Indemnities

  1. The Merchant shall defend, indemnify and hold harmless the Company against third-party claims, regulatory penalties and reasonable costs arising from: infringement by Merchant Data or Merchant content; the Merchant's failure to obtain required authorisations; the Merchant's breach of Third-Party Platform rules or applicable law; or the Merchant's pricing, promotions, accommodation performance or guest disputes. This does not apply to the extent that the relevant claim is caused by the Company's breach of this Agreement, negligence or wilful misconduct.
  2. The Company shall defend the Merchant against third-party claims that the Services themselves infringe a third party's intellectual property rights and shall indemnify the Merchant for losses finally awarded or agreed in settlement. The Company may, at its option, obtain the right for the Merchant to continue using the affected Services, modify or replace the affected functionality, or, if those remedies are not commercially practicable, terminate the affected Services and refund prepaid fees for the unused period. This clause does not apply to claims caused by Merchant materials, Merchant instructions, unauthorised modifications, or combinations with items not supplied by the Company.
  3. A party seeking indemnification shall promptly give written notice to the other party, give that other party reasonable control of the defence and settlement, and provide reasonable assistance. An indemnifying party may not settle any claim without the indemnified party's prior written consent if the settlement requires the indemnified party to admit liability, make payment or assume continuing obligations.

11. Term and Termination

  1. This Agreement takes effect on the earliest of: (a) the date on which the Merchant accepts it online; (b) the date on which the Merchant signs an Order Form; and (c) the date on which the Merchant first activates the Services, and continues until all subscription terms have expired or been terminated (the "Term").
  2. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to remedy the breach within [30] days after receiving written notice. A material breach that is incapable of remedy may result in immediate termination.
  3. Either party may terminate this Agreement if the other party enters liquidation, becomes unable to pay its debts or ceases to carry on its principal business, and the relevant proceeding is not dismissed or withdrawn within a reasonable period permitted by law.
  4. The Merchant may disable the relevant functions at any time. Whether that amounts to termination of a subscription and whether any refund is due shall be determined by the Order Form. Unless otherwise stated in the Order Form, the Merchant may elect not to renew by giving at least [30] days' prior written notice.
  5. If the Company permanently terminates a paid Service other than because of the Merchant's breach, the Company will refund prepaid fees attributable to the unused period after the termination date.
  6. On termination, the Merchant shall cease use of the Services and pay all due fees. Data return and deletion shall be handled under Clause 5. Terms which by their nature are intended to survive, including confidentiality, intellectual property, limitation of liability, indemnities, dispute resolution and payment obligations, survive termination.

12. Force Majeure

Neither party is liable for delay or failure to perform its obligations, other than payment obligations, to the extent caused by an event beyond its reasonable control, including a natural disaster, war, terrorism, governmental action, widespread telecommunications or cloud-service interruption, labour dispute, epidemic, cyberattack or systemic failure of a Third-Party Platform (each a "Force Majeure Event"). The affected party shall notify the other party as soon as practicable, take reasonable steps to mitigate the effects and resume performance. If a Force Majeure Event continues for more than [60] days and materially affects the Services, either party may terminate the affected subscription.

13. Governing Law and Dispute Resolution

  1. This Agreement and any non-contractual obligations arising out of or in connection with it are governed by the laws of the Hong Kong Special Administrative Region, without regard to its conflict-of-laws rules.
  2. The parties shall first attempt in good faith to resolve any dispute through their authorised representatives. If a dispute has not been resolved within 30 days after written notice of the dispute, it shall be finally resolved by arbitration administered by the Hong Kong International Arbitration Centre ("HKIAC") in accordance with the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted.
  3. The seat of arbitration shall be Hong Kong. The tribunal shall consist of one arbitrator. The language of the arbitration shall be English. The award shall be final and binding on the parties. Either party may apply to a court of competent jurisdiction for emergency, interim or conservatory relief, and doing so shall not be deemed incompatible with this agreement to arbitrate.
  4. If applicable law does not permit the arbitration agreement above to apply, the courts of the Hong Kong Special Administrative Region shall have non-exclusive jurisdiction.

14. General

  1. The parties are independent contractors. This Agreement does not create an agency, partnership, joint venture, employment or fiduciary relationship.
  2. Neither party may assign this Agreement without the other party's written consent. However, either party may assign this Agreement in its entirety to an affiliate, or in connection with a merger, reorganisation or sale of substantially all relevant assets, provided that the assignment does not reduce the other party's rights and the assigning party gives written notice to the other party.
  3. No person other than the parties has any right to enforce any term of this Agreement. The Contracts (Rights of Third Parties) Ordinance (Cap. 623) of Hong Kong is excluded to the extent permitted by applicable law.
  4. Notices under this Agreement shall be sent to the email address specified in the Order Form, through an in-account notice, or to an address confirmed by the parties in writing. Notices of legal proceedings, arbitration notices and termination notices shall also be sent to: [Company legal-notice email address: pms.support@smartorder-jp.com].
  5. If any provision is held invalid or unenforceable, it shall be modified or severed only to the minimum extent necessary, and the remaining provisions shall remain in full force and effect. A failure or delay in exercising a right is not a waiver of that right.
  6. This Agreement may be accepted or executed electronically and in counterparts, each of which is deemed an original and all of which together constitute one agreement.
  7. If Chinese and English versions of this Agreement are issued separately, the parties shall expressly agree on which version shall prevail before formal publication. In the absence of an express agreement, the version specified in the Order Form signed by the parties shall prevail.