Subscription Agreement | Smartbnb

Subscription Agreement

The Subscription Agreement is the contract you enter into with smartbnb concerning the delivery of our electronic services.

By accepting this Agreement, either by accessing or using a Service,  or authorizing or permitting any Agent to access or use a Service, You  agree to be bound by this Agreement. If You are entering into this  Agreement on behalf of a company, organization or another legal entity  (an “Entity”), You are agreeing to this Agreement for that Entity and  representing to Company that You have the authority to bind such Entity  and its Affiliates to this Agreement, in which case the terms Customer,”  “You,” “Your” or a related capitalized term herein shall refer to such  Entity and its Affiliates. If You do not have such authority, or if You  do not agree with this Agreement, You must not accept this Agreement and  may not use any of the Services.

1. Definitions

When used in this Agreement with the initial letters capitalized,  in addition to the terms defined elsewhere in this Agreement, the  following terms have the following meanings:

Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.

Active Listing: means a Listing that has been the subject of at least one check-in by End-Users within the past 30 days.

Affiliate: means, with respect to a Party, any  entity that directly or indirectly controls, is controlled by, or is  under common control with such Party, whereby “control” (including, with  correlative meaning, the terms “controlled by” and “under common  control”) means the possession, directly or indirectly, of the power to  direct, or cause the direction of the management and policies of such  person, whether through the ownership of voting securities, by contract,  or otherwise.

Agent: means an individual authorized to use a  Service through Your Account as an agent and/or administrator as  identified through a unique login.

Agreement: means the current Subscription Agreement together with any and all Supplements, Additional Terms and Order Forms.

Beta Services: means a product, service or  functionality provided by Smartbnb that may be made available to You to  try at Your option at no additional charge which is clearly designated  as beta, pilot, limited release, non-production, early access,  evaluation or by a similar description.

Confidential Information: means all information  disclosed by You to Smartbnb or by Smartbnb to You which is in tangible  form and labeled “confidential” (or with a similar legend) or which a  reasonable person would understand to be confidential given the nature  of the information and circumstances of disclosure, including, but not  limited to, information relating to Smartbnb's security policies and  procedures. For purposes of this Agreement, this Agreement as well as  Service Data shall be deemed Confidential Information. Notwithstanding  the foregoing, Confidential Information shall not include information  that (a) was already known to the receiving Party at the time of  disclosure by the disclosing Party; (b) was or is obtained by the  receiving Party by a third party not known by the receiving Party to be  under an obligation of confidentiality with respect to such information;  (c) is or becomes generally available to the public other than by  violation of this Agreement or another valid agreement between the  Parties; or (d) was or is independently developed by the receiving Party  without use of the disclosing Party’s Confidential Information.

Consulting Services: means consulting and  professional services (including any training, success or implementation  services) provided by Smartbnb or its authorized subcontractors as  indicated on an Order Form or other written document such as a statement  of work “SOW”, as defined below.

Directive: means Directive 95/46/EC on the  protection of individuals with regard to the processing of Personal Data  and on the free movement of such data.

Documentation: means any written or electronic  documentation, images, video, text or sounds specifying the  functionalities of the Services or describing Service Plans, as  applicable, provided or made available by Smartbnb to You in the  applicable help center(s).

End-User: means any person or entity other than  Customer or Agents with whom Customer or its Agents interact using a  Service or Other Services.

Listing: means any advertisement of an accommodation for short-term rentals on Other Services.

Order Form: means any of Our service order forms  executed or approved by You with respect to Your subscription to a  Service, which form may detail, among other things, the number of Agents  authorized to use a Service under Your subscription to a Service and  the Service Plan applicable to Your subscription to a Service.

Other Services: means third party products,  applications, services, software, products, networks, systems,  directories, websites, databases and information which a Service links  to, or which You may connect to or enable in conjunction with a Service,  including, without limitation, Other Services which may be integrated  directly into Your Account by You or at Your direction.

Payment Agent: means Smartbnb or a payment agent designated by Smartbnb.

Personal Data: means any information relating to  an identified or identifiable natural person where an identifiable  person is one who can be identified, directly or indirectly, in  particular by reference to an identification number or to one or more  factors specific to their physical, physiological, mental, economic,  cultural or social identity.

Personnel: means employees and/or non-employee  service providers and contractors of the Smartbnb engaged by the  Smartbnb in connection with performance hereunder.

Processing/To Process/Processed: means any  operation or set of operations which is performed upon Personal Data,  whether or not by automatic means, such as collection, recording,  organization, storage, adaptation or alteration, retrieval,  consultation, use, disclosure by transmission, dissemination or  otherwise making available, alignment or combination, blocking, erasure  or destruction.

Service(s): means the products and services that  are ordered by You online through a link or via an Order Form  referencing this Agreement, whether on a trial or paid basis, and made  available online by Us, via the applicable subscriber login link and  other web pages designated by Us, including, individually and  collectively, the applicable Software, Updates, API, Documentation, and  all applicable Associated Services that You have purchased or deployed .  “Services” exclude Other Services as that term is defined in this  Agreement. From time to time the names and descriptions of the Services  or any individual Service may be changed. To the extent Subscriber is  given access to such Service as so described by virtue of a prior Order  Form or other prior acceptance of this Agreement, this Agreement shall  be deemed to apply to such Service as newly named or described.

Service Data: means electronic data, text,  messages, communications or other materials processed by, submitted to  or stored within a Service by You and Agents in connection with Your use  of such Service, which may include, without limitation, Personal Data.  In particular, Service Data may be extracted from a Channel on your  behalf.

Service Plan(s): means the packaged service  plan(s) and the functionality and services associated therewith (as  detailed on the Site applicable to the Service) for the Services to  which You subscribe.

Site: means a website operated by Smartbnb,  including www.smartbnb.io, and all its sub-domains, including  app.smartbnb.io, as well as all other websites that Smartbnb operates.

Smartbnb: means smartbnb OÜ, a private limited  company organized under the laws of Estonia, registration number  14143080, or any of its successors or assignees.

Software: means software provided by Smartbnb  (either by download or access through the internet) that allows Agents  or End-Users to use any functionality in connection with the applicable  Service.

Subscription Term: means the period during which You have agreed to subscribe to a Service.

Supplemental Terms: means the additional terms  and conditions that are (a) contained in this Agreement under the  Section entitled, “Supplemental Terms and Conditions” which apply and  are incorporated into this Agreement with certain Services, features, or  functionality; (b) included or incorporated on an Order Form (e.g. when  a Deployed Associated Service is purchased); or (c) applicable to  Consulting Services when purchased by You.

Usage Data: means aggregated encoded or  anonymized data that Smartbnb may collect about a group or category of  services, features or users while You, Your Agents or End-Users use a  Service for certain purposes, including analytics, and which does not  contain Personal Data.

“We,” “Us” or “Our”: means Smartbnb as defined.

2. General conditions

2.1 •        During the Subscription Term and subject to compliance by You  and Agents with this Agreement, You have the limited right to access and  use a Service consistent with the Service Plan(s) that You subscribe  to, together with all applicable Deployed Associated Services, for Your  internal business purposes. We will (a) make the Services and Service  Data available to You pursuant to this Agreement and the applicable  Order Forms; (b) provide applicable standard customer support for the  Services to You at no additional charge as detailed on the applicable  Site and Documentation and/or upgraded support if purchased; (c) use  commercially reasonable efforts to make the Services available 24 hours a  day, 7 days a week, except (i) during planned downtime for upgrades and  maintenance to the Services (of which We will use commercially  reasonable efforts to notify You in advance both through Our Site and a  notice to Your Account owner and Agents) (“Planned Downtime”); and (ii)  for any unavailability caused by circumstances beyond Our reasonable  control, including, for example, an act of God, act of government,  flood, fire, earthquake, civil unrest, act of terror, strike or other  labor problem (other than one involving Our employees), Internet service  provider failure or delay, Other Services, or acts undertaken by third  parties, including without limitation, denial of service attack.

2.2 •        A high speed Internet connection is required for proper  transmission of the Services. You are responsible for procuring and  maintaining the network connections that connect Your network to the  Services, including, but not limited to, “browser” software that  supports protocols used by Smartbnb, including the Transport Layer  Security (TLS) protocol or other protocols accepted by Smartbnb, and to  follow procedures for accessing services that support such protocols. We  are not responsible for notifying You, Agents or End-Users of any  upgrades, fixes or enhancements to any such software or for any  compromise of data, including Service Data, transmitted across computer  networks or telecommunications facilities (including but not limited to  the Internet) which are not owned, operated or controlled by Smartbnb.  We assume no responsibility for the reliability or performance of any  connections as described in this section.

2.3 •        In addition to complying with the other terms, conditions and  restrictions set forth below in this Agreement, You agree not to (a)  license, sublicense, sell, resell, rent, lease, transfer, assign,  distribute, time share or otherwise commercially exploit or make the  Services available to any third party, other than authorized Agents in  furtherance of Your internal business purposes as expressly permitted by  this Agreement; (b) use the Services to Process data on behalf of any  third party other than Agents or End-Users; (c) modify, adapt, or hack  the Services or otherwise attempt to gain unauthorized access to the  Services or related systems or networks; (d) falsely imply any  sponsorship or association with Smartbnb, (e) use the Services in any  unlawful manner, including, but not limited to, violation of any  person’s privacy rights; (f) use the Services to send unsolicited or  unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms  of duplicitous or unsolicited messages; (g) use the Services to store or  transmit files, materials, data, text, audio, video, images or other  content that infringes on any person’s intellectual property rights; (h)  use the Services in any manner that interferes with or disrupts the  integrity or performance of the Services and its components; (i) attempt  to decipher, decompile, reverse engineer or otherwise discover the  source code of any Software making up the Services; (j) use the Services  to knowingly post, transmit, upload, link to, send or store any content  that is unlawful, racist, hateful, abusive, libelous, obscene, or  discriminatory; (k) use the Services to store or transmit any “protected  health information”; (l) use the Services to knowingly post transmit,  upload, link to, send or store any viruses, malware, Trojan horses, time  bombs, or any other similar harmful software (“Malicious Software”);  (m) use or launch any automated system that accesses a Service (i.e.,  bot) in a manner that sends more request messages to a Service server in  a given period of time than a human can reasonably produce in the same  period by using a conventional on-line web browser; or (n) attempt to  use, or use the Services in violation of this Agreement.

2.4 •        You are responsible for compliance with the provisions of this  Agreement by Agents and for any and all activities that occur under Your  Account, as well as for all Service Data. Without limiting the  foregoing, You are solely responsible for ensuring that use of the  Services to store and transmit Service Data is compliant with all  applicable laws and regulations as well as any and all privacy policies,  agreements or other obligations You may maintain or enter into with  Agents or End-Users. You also maintain all responsibility for  determining whether the Services or the information generated thereby is  accurate or sufficient for Your purposes. Subject to any limitation on  the number of individual Agents available under the applicable Service  Plan(s) to which You subscribed or applicable Deployed Associated  Service, access to and use of the Services is restricted to the  specified number of individual Agents permitted under Your subscription  to the applicable Service.

2.5 •        We reserve the right, in Our reasonable discretion, to  temporarily suspend Your access to and use of a Service if We suspect or  detect any Malicious Software connected to Your Account or use of a  Service by You or Agents.

2.6 •        You acknowledge that Smartbnb may modify the features and functionality of the Services during the Subscription Term.

2.7 •        You may not access the Services if You are a direct competitor  of the Smartbnb, except with Smartbnb's prior written consent. You may  not access the Services for the purposes of monitoring performance,  availability, functionality, or for any benchmarking or competitive  purposes.

2.8 •        If You register for a free trial for any of the Services, We  will make such Services available to You on a trial basis free of charge  until the earlier of (a) the end of the free trial period for which You  registered to use the applicable Service(s); (b) the start date of any  subscription to such Service purchased by You for such Service(s); or  (c) termination of the trial by Us in our sole discretion. Additional  trial terms and conditions may appear on the trial registration web  page. Any such additional terms and conditions are incorporated into  this Agreement by reference and are legally binding. Please review the  applicable Documentation during the trial period so that You become  familiar with the features and functions of the Services under  applicable Service Plans before You make Your purchase.

2.9 •        We may make Beta Services available to You at no charge. You may  choose to try such Beta Services in Your sole discretion. Beta Services  are intended for evaluation purposes and not for production use, are  not supported, and may be subject to additional terms that will be  presented to You. Beta Services are not considered “Services” under this  Agreement; however, all restrictions, Our reservation of rights and  Your obligations concerning the Service, and use of any Other Services  shall apply equally to Your use of Beta Services. Unless otherwise  stated, any Beta Services trial period will expire upon the earlier of  one year from the trial start date or the date that a version of the  Beta Services becomes generally available without the applicable Beta  Services designation. We may discontinue Beta Services at any time in  Our sole discretion and may never make them generally available. We will  have no liability for any harm or damage arising out of or in  connection with a Beta Service.

3.  Confidentiality; Security and Privacy

3.1 •        Subject to the express permissions of this Agreement, each Party  will protect each other’s Confidential Information from unauthorized  use, access or disclosure in the same manner as each protects its own  Confidential Information, but with no less than reasonable care. Except  as otherwise expressly permitted pursuant to this Agreement, each of us  may use each other’s Confidential Information solely to exercise our  respective rights and perform our respective obligations under this  Agreement and shall disclose such Confidential Information (a) solely to  the Personnel who have a need to know such Confidential Information for  such purposes and who are bound to maintain the confidentiality of, and  not misuse, such Confidential Information; (b) as necessary to comply  with an order or subpoena of any administrative agency or court of  competent jurisdiction; or (c) as reasonably necessary to comply with  any applicable law or regulation. The provisions of this Section 3.1  shall supersede any non-disclosure agreement by and between the Parties  that would purport to address the confidentiality and security of  Service Data and such agreement shall have no further force or effect  with respect to Service Data.

3.2 •        Smartbnb will maintain reasonable administrative, physical, and  technical safeguards for protection of the security, confidentiality and  integrity of Service Data, as described in the Agreement, the  Supplemental Terms entitled, “How We Protect Service Data” attached  hereto, and Supplemental Terms for the Deployed Associated Services, as  applicable. Those safeguards will include, but will not be limited to,  measures for preventing access, use, modification or disclosure of  Service Data by Personnel except (a) to provide the Services and prevent  or address service, support or technical problems; (b) as compelled by  law in accordance with Section 3.1 above; or (c) as You expressly permit  in writing. Smartbnb compliance with the provisions of Sections 3.2  through 3.5 shall be deemed compliance with the Smartbnb's obligations  to protect Service Data as set forth in the Agreement.

3.3 •        To the extent Service Data constitutes Personal Data, You and  Smartbnb hereby agree that You shall be deemed to be the data controller  and Smartbnb shall be deemed to be the data processor as those terms  are understood under the Directive (and any applicable national  legislation implementing the Directive). Unless otherwise specifically  agreed to by Smartbnb, Service Data may be hosted by Smartbnb or their  respective authorized third-party service providers in the United  States, the EEA or other locations around the world. In providing the  Services, Smartbnb will Process Service Data, including and without  limitation, any associated Personal Data pursuant to this Agreement  within the European Economic Area (the “EEA”), the United States and in  other countries and territories. Under no circumstances will any entity  in Smartbnb be deemed a data controller with respect to Service Data  under the Directive or any relevant law or regulation of any Member  State as defined in the Directive.

3.4 •             If Your principal location is in the EEA, We will ensure,  pursuant to Article 25 of the Directive that, to the extent that any  Service Data constitutes Personal Data, if Service Data is transferred  to a country or territory outside of the EEA (a “non-EEA country”), that  such transfer will only take place if: (a) the non-EEA country in  question ensures an adequate level of data protection; (b) one of the  conditions listed in Article 26(1) of the Directive is satisfied; or (c)  the transfer is via the EU-US Privacy Shield or Swiss-US Safe Harbor  frameworks.

3.5 •             You agree that Smartbnb and the third-party service providers  that are utilized by Smartbnb to assist in providing the Services to You  shall have the right to access Your Account and to use, modify,  reproduce, distribute, display and disclose Service Data to the extent  necessary to provide the Services, including, without limitation, in  response to Your support requests. Any third-party service providers  utilized by Smartbnb will only be given access to Your Account and  Service Data as is reasonably necessary to provide the Services and will  be subject to (a) confidentiality obligations which are commercially  reasonable and substantially consistent with the standards described in  Section 3.2; and (b) their agreement to comply with the data transfer  restrictions applicable to Personal Data as set forth in Section 3.4.

3.6 •             In addition to Service Data, We collect certain information  (which may include Personal Data) about You, Agents and End-Users as  well as Your and their respective devices, computers and use of the  Service. This includes, among other things:

4. Intellectual Property Rights

Each Party shall retain all rights, title and interest in and to  all its respective patents, inventions, copyrights, trademarks, domain  names, trade secrets, know-how and any other intellectual property  and/or proprietary rights (collectively, “Intellectual Property  Rights”). The rights granted to You, Agents and End-Users to use the  Service(s) under this Agreement do not convey any additional rights in  the Service(s) or in any Intellectual Property Rights associated  therewith. Subject only to limited rights to access and use the  Service(s) as expressly stated herein, all rights, title and interest in  and to the Services and all hardware, Software and other components of  or used to provide the Services, including all related Intellectual  Property Rights, will remain with Smartbnb and belong exclusively to  Smartbnb. Smartbnb shall have a fully paid-up, royalty-free, worldwide,  transferable, sub-licensable (through multiple layers), assignable,  irrevocable and perpetual license to implement, use, modify,  commercially exploit, and/or incorporate into the Services or otherwise  use any suggestions, enhancement requests, recommendations or other  feedback We receive from You, Agents, End-Users, or other third parties  acting on Your behalf. Smartbnb, service names and logos used or  displayed in or on the Services are registered or unregistered  trademarks of one or more members of Smartbnb (collectively, “Marks”),  and You may only use applicable Marks to identify You as a Subscriber;  provided You do not attempt, now or in the future, to claim any rights  in the Marks, degrade the distinctiveness of the Marks, or use the Marks  to disparage or misrepresent Us, Our services or products.

5. Third-Party Services

If You decide to enable, access or use Other Services, be  advised that Your access and use of such Other Services are governed  solely by the terms and conditions of such Other Services, and We do not  endorse, are not responsible or liable for, and make no representations  as to any aspect of such Other Services, including, without limitation,  their content or the manner in which they handle, protect, manage or  Process data (including Service Data) or any interaction between You and  the provider of such Other Services. We cannot guarantee the continued  availability of such Other Service features, and may cease enabling  access to them without entitling You to any refund, credit, or other  compensation, if, for example and without limitation, the provider of an  Other Service ceases to make the Other Service available for  interoperation with the corresponding Service in a manner acceptable to  Us. You irrevocably waive any claim against Smartbnb with respect to  such Other Services. We are not liable for any damage or loss caused or  alleged to be caused by or in connection with Your enablement, access or  use of any such Other Services, or Your reliance on the privacy  practices, data security processes or other policies of such Other  Services. You may be required to register for or log into such Other  Services on their respective websites. By enabling any Other Services,  You are expressly permitting Smartbnb to disclose Your Login, as well as  Service Data as necessary to facilitate the use or enablement of such  Other Services.

6.  Billing and Payments

6.1 •             Unless otherwise indicated on an Order Form referencing this  Agreement or in any additional terms referencing this Agreement, all  charges associated with Your access to and use of a Service  (“Subscription Charges”) are due in full upon commencement of Your  Subscription Term, or, with respect to a Deployed Associated Service, at  the time such Deployed Associated Service is purchased, subscribed to  or otherwise deployed. If You fail to pay Your Subscription Charges or  other charges indicated on any Order Form within five (5) business days  of Our notice to You that payment is due or delinquent, or if You do not  update payment information upon Our request, in addition to Our other  remedies, We may suspend or terminate access to and use of such Service  by You, Agents and End-Users.

6.2 •             Unless otherwise stated, Our charges do not include any taxes,  levies, duties or similar governmental assessments, including  value-added, sales, use or withholding taxes assessable by any local,  state, provincial or foreign jurisdiction (collectively “Taxes”). You  are responsible for paying Taxes, except those assessable against  Smartbnb. We will invoice You for such Taxes if We believe We have a  legal obligation to do so and You agree to pay such Taxes if so  invoiced.

6.3 •             If You pay by credit card or certain other payment instruments,  the Services provide an interface for the Account owner to change credit  card information (e.g. upon card renewal). The Account owner will  receive a receipt upon each receipt of payment by the Payment Agent, or  they may obtain a receipt from within the Services to track subscription  status. You hereby authorize the Payment Agent to bill Your credit card  or other payment instrument in advance on a periodic basis in  accordance with the terms of the Service Plan for the Services and for  periodic Subscription Charges applicable to Deployed Associated Services  to which You subscribe until Your subscription to the Services  terminates, and You further agree to pay any Subscription Charges so  incurred. If applicable, You hereby authorize Smartbnb and the Payment  Agent to charge Your credit card or other payment instrument to  establish such prepaid credit. You agree to promptly update Your Account  information with any changes (for example, a change in Your billing  address or credit card expiration date) that may occur. The Payment  Agent uses a third-party intermediary to manage credit card processing  and this intermediary is not permitted to store, retain or use Your  billing information except to process Your credit card information for  the Payment Agent.

6.4 •                  No refunds or credits for Subscription Charges or other fees or  payments will be provided to You if You elect to downgrade Your Service  Plan. Downgrading Your Service Plan may cause loss of content, features,  or capacity of the Service as available to You under Your Account, and  Smartbnb does not accept any liability for such loss.

6.5 •        Seven business days before the Subscription Term, We will update  your Subscription Charges for the future Subscription Term on the basis  of the sum of current Active Listings under your Account. If the  Subscription Charges for the future Subscription Term differ in any way  from the  Subscription Charges for the current Subscription Term, We  will notify You by email of any modification to your Subscription Charge  for the future Subscription Term.

7.  Credits

We may, at Our sole discretion, choose to offer credits for the  Services in various ways, including but not limited to, coupons,  promotional campaigns and referrals. Smartbnb reserves the right to  award credits at its sole discretion. Credits have no monetary or cash  value and can only be used by You to offset Your subsequent payments of  Subscription Charges for the applicable Service. Credits may only be  applied to Subscription Charges due for the Service specifically  identified by Smartbnb when issuing the credit. Credits can only be used  by You and are non-transferable. To the extent that You have been  awarded credits, unless the instrument (including any coupon) states an  earlier expiration date, credits shall expire and no longer be  redeemable twelve (12) months from the date the credit was issued.

8.  Cancellation and Termination

8.1 •        Either Party may elect to terminate Your Account and  subscription to a Service as of the end of Your then current  Subscription Term by providing notice, in accordance with this  Agreement, on or prior to the date thirty (30) days preceding the end of  such Subscription Term. Unless Your Account and subscription to a  Service is so terminated, Your subscription to a Service (including any  and all Deployed Associated Services) will renew for a Subscription Term  equivalent in length to the then expiring Subscription Term. Unless  otherwise provided for in an Order Form, the Subscription Charges  applicable to Your subscription to a Service for any such subsequent  Subscription Term shall be Our standard Subscription Charges for the  Service Plan and Deployed Associated Services to which You have  subscribed or which You have deployed, as applicable, as of the time  such subsequent Subscription Term commences.

8.2 •        No refunds or credits for Subscription Charges or other fees or  payments will be provided to You if You elect to terminate Your  subscription to the Service or cancel Your Account prior to the end of  Your then effective Subscription Term.

8.3 •        Except for Your termination under Section 8.5, if You terminate  Your subscription to a Service or cancel Your Account prior to the end  of Your then effective Subscription Term or We effect such termination  or cancellation pursuant to Sections 2, 8.4 and 8.5, in addition to  other amounts You may owe Smartbnb, You must immediately pay any then  unpaid Subscription Charges associated with the remainder of such  Subscription Term. This amount will not be payable by You in the event  You terminate Your subscription to a Service or cancel Your Account as a  result of a material breach of this Agreement by Smartbnb, provided  that You provide advance notice of such breach to Smartbnb and afford  Smartbnb not less than thirty (30) days to reasonably cure such breach  as provided for in Section 8.5 herein.

8.4 •        We reserve the right to modify, suspend or terminate the  Services (or any part thereof), Your Account or Your and/or Agents’ or  End-Users’ rights to access and use the Services, and remove, disable  and discard any Service Data if We believe that You, Agents or End-Users  have violated this Agreement. This includes the removal or disablement  of Service Data. Unless legally prohibited from doing so, We will use  commercially reasonable efforts to contact You directly via email to  notify You when taking any of the foregoing actions. We shall not be  liable to You, Agents, End-Users or any other third party for any such  modification, suspension or discontinuation of Your rights to access and  use the Services. Any suspected fraudulent, abusive, or illegal  activity by You, Agents or End-Users may be referred to law enforcement  authorities at Our sole discretion.

8.5 •        A Party may terminate this Agreement for cause (a) upon thirty  (30) days’ written notice to the other Party of a material breach if  such breach remains uncured at the expiration of such period; or (b) if  the other Party becomes the subject of a petition in bankruptcy or any  other proceeding relating to insolvency, receivership, liquidation or  assignment for the benefit of creditors. If this Agreement is terminated  by You in accordance with this section, We will, to the extent  permitted by applicable law, refund You any prepaid fees covering the  remainder of the Subscription Term after the effective date of  termination. If this Agreement is terminated by Us in accordance with  this section, You will pay any unpaid fees covering the remainder of the  Subscription Term pursuant to all applicable Order Forms. In no event  will termination relieve You of Your obligation to pay any fees payable  to Us for the period prior to the effective date of termination.

9.  Representations, Disclaimers and Warranties

9.1 •        Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

9.2 •        We warrant that during an applicable Subscription Term (a) this  Agreement and the Documentation will accurately describe the applicable  administrative, physical, and technical safeguards for protection of the  security, confidentiality and integrity of Service Data; and (b) the  Services will perform materially in accordance with the applicable  Documentation. For any breach of a warranty above, Your exclusive  remedies are those described in Section 8.5 herein.

9.3 • EXCEPT AS SPECIFICALLY SET FORTH IN  SECTION 9.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND  NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS,  WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY  LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS  OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF  MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND  NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE  SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM  VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE  OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY  WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

10. LIMITATION OF LIABILITY

10.1 •        UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN  CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS  AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,  SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY  OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST  DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF  INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS  OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR  THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR  CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED  OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

10.2 •        NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,  SMARTBNB’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF  THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR  USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE  SUBSCRIPTION CHARGES FOR SUCH SERVICES PAID BY YOU DURING THE TWELVE  (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH  LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS  SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE  PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES,  WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY  FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON  THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO  ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.

10.3 •        Some jurisdictions do not allow the exclusion of implied  warranties or limitation of liability for incidental or consequential  damages, which means that some of the above limitations may not apply to  You. IN THESE JURISDICTIONS, SMARTBNB'S LIABILITY WILL BE LIMITED TO  THE GREATEST EXTENT PERMITTED BY LAW.

10.4 •        Any claims or damages that You may have against Smartbnb shall  only be enforceable against Smartbnb and not any other entity or its  officers, directors, representatives or agents.

11. Indemnification

You will indemnify and hold Smartbnb harmless against any claim  brought by a third party against Smartbnb arising from or related to use  of a Service by You, Agents or End-Users in breach of this Agreement or  matters for which You have expressly agreed to be responsible pursuant  to this Agreement; provided (a) We shall promptly notify You of the  threat or notice of such claim; (b) You will have the sole and exclusive  control and authority to select defense attorneys, and defend and/or  settle any such claim (however, You shall not settle or compromise any  claim that results in liability or admission of any liability by Us  without Our prior written consent); and (c) We fully cooperate with You  in connection therewith.

12.  Assignment, Entire Agreement, and Amendment

12.1 • You may not, directly or indirectly, by  operation of law or otherwise, assign all or any part of this Agreement  or Your rights under this Agreement or delegate performance of Your  duties under this Agreement without Our prior consent, which consent  will not be unreasonably withheld. We may, without Your consent, assign  Our agreement with You in connection with any merger or change of  control of Smartbnb or the sale of all or substantially all of Our  assets provided that any such successor agrees to fulfill its  obligations pursuant to this Agreement. Subject to the foregoing  restrictions, this Agreement will be fully binding upon, inure to the  benefit of and be enforceable by the Parties and their respective  successors and assigns.

12.2 • This Agreement, together with any Order  Form(s) and Supplemental Term(s) constitute the entire agreement, and  supersede any and all prior agreements between You and Smartbnb with  regard to the subject matter hereof. This Agreement shall apply in lieu  of the terms or conditions in any purchase order or other order  documentation You or any Entity which You represent provides (all such  terms or conditions being null and void), and, except as expressly  stated herein, there are no other agreements, representations,  warranties, or commitments which may be relied upon by either Party with  respect to the subject matter hereof. Notwithstanding the foregoing,  additional terms may apply to certain features, functionality, or  services as detailed in a Supplement hereto or that We offer as part of  or distinct from the Services (the “Additional Terms”). In those  instances, We will notify You of such Additional Terms prior to the  activation of these features, functionality, or services and the  activation of these features, functionality, or services in Your Account  will be considered acceptance of the Additional Terms. All such  Additional Terms will be considered incorporated into this Agreement  when You or any Agent authorized as an administrator in Your Account  activate the feature, functionality, or service. Where there is a  conflict between this Agreement and the Additional Terms, the Additional  Terms will control.

12.3 • We may amend this Agreement from time to  time, in which case the new Agreement will supersede prior versions. We  will notify You not less than ten (10) days prior to the effective date  of any such amendment and Your continued use of the Services following  the effective date of any such amendment may be relied upon by Smartbnb  as Your consent to any such amendment. Our failure to enforce at any  time any provision of this Agreement does not constitute a waiver of  that provision or of any other provision of this Agreement.

13. Severability

If any provision in this Agreement is held by a court of  competent jurisdiction to be unenforceable, such provision shall be  modified by the court and interpreted so as to best accomplish the  original provision to the fullest extent permitted by law, and the  remaining provisions of this Agreement shall remain in effect.

14.  Relationship of the parties

The Parties are independent contractors. This Agreement does not  create a partnership, franchise, joint venture, agency, fiduciary or  employment relationship among the Parties.

15. Notices

All notices to be provided by Smartbnb to You under this  Agreement may be delivered in writing (a) by nationally recognized  overnight delivery service (“Courier”) or mail to the contact mailing  address provided by You on any Order Form; or (b) electronic mail to the  electronic mail address provided for Your Account owner. You must give  notice to Smartbnb in writing by Courier or mail to Sepapaja 6, Tallinn  15551, Estonia. All notices shall be deemed to have been given  immediately upon delivery by electronic mail; or, if otherwise delivered  upon the earlier of receipt or four (2) business days after being  deposited in the mail or with a Courier as permitted above.

16. Governing Law

This Agreement shall be governed by the laws of the Republic of  Estonia, without reference to conflict of laws principles. Any disputes  under this Agreement shall be resolved in a court of general  jurisdiction in Tallinn. You hereby expressly agree to submit to the  exclusive personal jurisdiction of this jurisdiction for the purpose of  resolving any dispute relating to this Agreement or access to or use of  the Services by You, Agents or End Users.

17.  Survival

Sections 1, 3.1, 4 and 9-16 shall survive any termination of our  agreement with respect to use of the Services by You, Agents or End  Users. Termination of such agreement shall not limit a Party’s liability  for obligations accrued as of or prior to such termination or for any  breach of this Agreement.


Supplemental Terms And Conditions

Consulting Services

If Subscriber has engaged Smartbnb for the provision of  professional services (including any training, success, and  implementation services, “Consulting Services”) as indicated on an Order  Form, the provision of such Consulting Services will be governed by the  Agreement, including these Supplemental Terms. Unless otherwise agreed  to in a Statement of Work, Subscriber agrees that any Consulting  Services must be scheduled for completion by Subscriber within six (6)  months following the commencement of the Subscription Term as indicated  on the Order Form. In consideration of the foregoing, Subscriber and  Smartbnb, intending to be legally bound, agree to the terms set forth  below.

1. Scope.

All Consulting Services pursuant to  the Agreement provided by Smartbnb to Subscriber will be outlined in one  or more mutually agreed-upon and jointly executed Statement of Work(s)  (“SOW(s)”) or Order Forms, each incorporated into the Agreement and  describing in detail the scope, nature and other relevant  characteristics of Consulting Services to be provided.

2. Retention.

Subscriber hereby retains Smartbnb  to provide the Consulting Services described in one or more SOWs,  subject to the terms and conditions set forth in the Agreement. Smartbnb  shall not be obligated to perform any Consulting Services until both  Parties have mutually agreed upon and executed an SOW with respect to  such Consulting Services. After execution of an SOW, the Consulting  Services to be provided under that SOW may only be changed through a  change order mutually executed by the Parties (“Change Order”).

3. Performance of Consulting Services.

3.1 Each SOW will include reasonable details  about Consulting Services, including, at a minimum, the Fees charged and  the qualified employees and/or non-employee contractors of Smartbnb  (“Subcontractors” and together with Smartbnb’s employees for the  purposes of these Supplemental terms, “Consulting Services Personnel”)  employed in performing the Consulting Services. Smartbnb and Subscriber  agree to cooperate in good faith to achieve satisfactory completion of  the Consulting Services in a timely and professional manner.

3.2 The Parties will each designate a  representative to interface and facilitate the successful completion of  the Consulting Services (“Subscriber’s Representative” and “Smartbnb’s  Representative”, respectively). Any Subcontractor (defined below)  designated by Smartbnb to perform any portion of the Consulting Services  will designate a representative to interface with Subscriber and  Smartbnb on all matters relating to Subcontractor’s performance of  Consulting Services (“Subcontractor’s Representative”).

3.3 Smartbnb will perform the Consulting  Services, directly or through a Subcontractor of its choice. Subscriber  agrees to provide, at no cost to Smartbnb, timely and adequate  assistance and other resources reasonably requested by Smartbnb to  enable the performance of the Consulting Services (collectively,  “Assistance”). Neither Smartbnb, nor its Subcontractors will be liable  for any deficiency in performance of Consulting Services to the extent  resulting from any acts or omissions of Subscriber, including but not  limited to, Subscriber’s failure to provide Assistance as required  hereunder.

3.4 In performing the Consulting Services,  Smartbnb will provide such resources, and utilize Consulting Services  Personnel as it deems necessary to perform the Consulting Services or  any portion thereof. Subscriber may object to Smartbnb’s election of  Subcontractors by specifying its objection to Smartbnb, in which case  the Parties will cooperate in good faith to appoint another  Subcontractor to perform such Consulting Services. Smartbnb may replace  Consulting Services Personnel in its normal course of business, provided  that Smartbnb will be responsible for the performance of Consulting  Services by all Consulting Services Personnel.

3.5 Smartbnb will control the method and manner  of performing all work necessary for completion of Consulting Services,  including but not limited to the supervision and control of any  Personnel performing Consulting Services. Smartbnb will maintain such  number of qualified Consulting Services Personnel and appropriate  facilities and other resources sufficient to perform Smartbnb’s  obligations under the Agreement in accordance with its terms.

3.6 With Subscriber’s approval, Smartbnb may  enter (“assume into”) Subscriber’s Account as needed to provide the  Consulting Services.

3.7 In the event that Subscriber seeks to change  the scope of Consulting Services to be provided under any SOW  (including, but not limited to, any changes to the project schedule  described in the SOW), Subscriber shall discuss such proposed changes  with Smartbnb. If Smartbnb elects to perform such changes to the  Consulting Services, the Parties shall work together in good faith to  execute a Change Order. Smartbnb shall be entitled to an adjustment in  Fees pursuant to the changes reflected in the Change Order. Smartbnb  shall not be obligated to perform any differing or additional Consulting  Services unless the Parties have mutually agreed upon a written Change  Order.

3.8 For SOWs that are deliverable/milestone  based, upon delivery of all deliverables or completion of all milestones  detailed in the SOW, Smartbnb shall provide Subscriber with written  notice (“Completion Notice”). Thereafter, Subscriber shall have five (5)  days after the date of the Completion Notice to provide Smartbnb with  written notice describing any deliverables that have not been provided  or milestones not met. The SOW shall be deemed complete and the  deliverables accepted absent Subscriber’s timely written notice of any  deliverables or milestones not having been met. For the avoidance of  doubt, a Completion Notice shall not be necessary for SOWs that are Time  and Materials based.

4. Fees; Payment Terms.

4.1 Subscriber will pay Smartbnb the fees to  provide the Consulting Services as detailed or described in an Order  Form or SOW (the “Fees”). Unless agreed upon otherwise in the applicable  SOW or Order Form, Smartbnb shall invoice Subscriber for the Consulting  Services provided on a monthly basis. All Fees are due and payable upon  date of invoice, except for Fees that Subscriber disputes in good faith  for reasons articulated in writing by Subscriber within thirty (30)  days after receiving such invoice.

4.2 All Consulting Services will be provided on  either a time and materials or fixed-fee basis, as indicated in the  applicable SOW. Each SOW providing for time and materials based Fees  will contain a detailed estimate of such time and materials necessary  for performance of Consulting Services (“T&M Estimate”). Smartbnb  will make a commercially reasonable effort to provide such Consulting  Services within such T&M Estimate, up to the number of hours agreed  to by the Parties. Smartbnb will make a reasonable effort to notify  Subscriber as soon as practicable if it appears that T&M Estimate  may be exceeded. Upon receiving such amended T&M Estimate,  Subscriber will assess, and accept or reject the amended T&M  Estimate. Unless Subscriber rejects such amended T&M Estimate within  five (5) days of delivery, such amended T&M Estimate shall be  deemed accepted by Subscriber and Subscriber shall be liable for all  Fees associated with Consulting Services delivered in reliance on such  amended T&M Estimate. Any amended T&M Estimate which is or is  deemed accepted by Subscriber shall be deemed a Change Order.

4.3 The performance of Consulting Services may  be subject to a retainer to be paid in advance by Subscriber upon  execution and delivery of the SOW. Such retainer will be applied against  Fees which become payable by Subscriber. Smartbnb may refuse to perform  Consulting Services unless and until such retainer is paid to Smartbnb.

4.4 In addition to any and all Fees, Subscriber  will reimburse Smartbnb for any reasonable expenses for travel, lodging,  communications, shipping charges and out-of-pocket expenses, including  change fees to travel and accommodations resulting from Subscriber’s  request. incurred by Smartbnb in connection with providing the  Consulting Services (“Expenses”). Smartbnb will provide reasonable  documentation for all Expenses as requested by Subscriber. Subscriber  shall reimburse Smartbnb for Expenses within thirty (30) days of  submission of the Expenses to Subscriber by Smartbnb.

4.5 Any unpaid Fees or Expenses will become  overdue thirty (30) days after payment is due and shall be subject to a  late fee of one and a half percent (1.5%) per month for each month where  payment is not received.

4.6 Cancellation/Changes: Any  cancellations/changes less than five (5) days prior to agreed Consulting  Services commencement date are subject to forfeiture of Fees paid and  reserved date(s).

5. Relationship of the Parties.

Smartbnb is an  independent contractor and will maintain complete control of and  responsibility for its Consulting Services Personnel, methods and  operations in providing Consulting Services. Smartbnb at no time will  hold itself out as an agent, subsidiary or affiliate of Subscriber for  any purpose, including reporting to any government authority. The  Agreement will not be construed so as to create a partnership, other  joint venture or undertaking, or any agency relationship between the  Parties, and neither Party shall become liable for any representation,  act or omission of the other Party or have the authority to  contractually bind the other Party. Any Fees, Expenses or other amounts  paid by Subscriber to Smartbnb hereunder shall not be considered salary  for pension or wage tax purposes and neither Smartbnb nor its Consulting  Services Personnel will be entitled to any fringe benefits, including  sick or vacation pay, or other supplemental benefits of Subscriber,  unless otherwise required by law. Subscriber shall not be responsible  for deducting or withholding from Fees or Expenses paid for Consulting  Services any taxes, unemployment, social security or other such expense  unless otherwise required by law.

6. Warranties, Limitation of Liability.

6.1 Smartbnb hereby represents and warrants that:

6.2 NOTWITHSTANDING SECTION 10.2 OF THE  AGREEMENT, SMARTBNB'S LIABILITY ARISING OUT OF THIS AGREEMENT OR  OTHERWISE IN CONNECTION WITH ANY CONSULTING SERVICES, SHALL IN NO EVENT  EXCEED THE FEES PAID BY SUBSCRIBER UNDER THE APPLICABLE SOW. EACH PARTY  ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 6.2  IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND  LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN  SUBSTANTIALLY HIGHER IF SMARTBNB WERE TO ASSUME ANY FURTHER LIABILITY  OTHER THAN AS SET FORTH HEREIN. SMARTBNB HAS RELIED ON THESE LIMITATIONS  IN DETERMINING WHETHER TO PROVIDE SUBSCRIBER WITH THE CONSULTING  SERVICES PROVIDED UNDER THE AGREEMENT.

6.2        CUSTOMIZED DELIVERABLES, SUCH AS, BUT NOT LIMITED TO, CUSTOM  APPLICATIONS THAT RESIDE WITHIN THE SMARTBNB SERVICE FRAMEWORK,  CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE  IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED  DELIVERABLES”) ARE PROVIDED TO SUBSCRIBER “AS IS” AND SMARTBNB MAKES NO  WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR  ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS  OF THE CUSTOMIZED DELIVERABLES. SMARTBNB SHALL NOT BE RESPONSIBLE, AT  LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER  WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY  CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY SMARTBNB. SMARTBNB  DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR  USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE,  OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY.  SMARTBNB EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED  DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF  MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE,  NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, SMARTBNB  EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN  CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY  THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE  IN ADDITION TO ANY DISCLAIMERS MADE BY SMARTBNB OR ITS AFFILIATES UNDER  THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER  AND ANY THIRD PARTY’S USE OF THE SERVICES.

7. Rights to Deliverables; Ownership.

7.1        The Parties hereby agree that the specified Consulting Services  to be completed pursuant to any SOW primarily involve the configuration  of Subscriber’s subscription to a Service and integration of Subscriber  data with and into one or more Services using Pre-existing Technology,  Developed Technology, and/or Generic Components (each as defined below).  Unless otherwise expressly specified in a SOW, no deliverable provided  in connection with the Consulting Services provided pursuant to the  Agreement shall constitute a “Work Made For Hire” under the Agreement.  In the event that any such deliverable is held to be a Work Made For  Hire, Subscriber hereby assigns to Smartbnb all right, title and  interest therein or to the extent such assignment is not permitted or  effective, hereby grants to Smartbnb a perpetual, irrevocable,  exclusive, worldwide, fully-paid, sub-licensable (through multiple  layers), assignable license to any such deliverable. Additionally,  Smartbnb shall have a perpetual, irrevocable, non-exclusive, worldwide,  fully-paid, sub-licensable (through multiple layers), assignable license  to incorporate into the Pre-existing Technology, Developed Technology,  and/or Generic Components or otherwise use any suggestions, enhancement  requests, recommendations or other feedback Smartbnb receives from  Subscriber.

7.2 Without limiting the foregoing, Smartbnb  and its licensors reserve and retain ownership of all Preexisting  Technology, Developed Technology and Generic Components (each as defined  below), and Smartbnb hereby grants to Subscriber a non-exclusive,  fully-paid, limited license to use Preexisting Technology, Developed  Technology and Generic Components solely in connection with Subscriber’s  use of the Service(s). “Preexisting Technology” means all of Smartbnb’s  inventions (including those of Smartbnb’s Affiliates) (whether or not  patentable), works of authorship, designs, know-how, ideas, concepts,  information and tools in existence prior to the commencement of the  Consulting Services. “Developed Technology” means ideas (whether or not  patentable) know-how, technical data, techniques, concepts, information  or tools, and all associated intellectual property rights thereto  developed by Smartbnb and its Affiliates or their Consulting Services  Personnel in connection with providing Consulting Services pursuant to  the Agreement that derive from, improve, enhance or modify Smartbnb’s  Preexisting Technology. “Generic Components” means all inventions  (whether or not patentable), works of authorship, designs, know-how,  ideas, information and tools, including without limitation software and  programming tools developed by Smartbnb and its Affiliates or their  Consulting Services Personnel in connection with providing Consulting  Services generally to support Smartbnb’s product and/or service  offerings (including, without limitation the Services) and which can be  so used without use of Subscriber’s Confidential Information.