Terms of Service for Nightcap.
These Terms of Service (the "Agreement") govern the use of the Nightcap service (the "Service") by the hotel identified in an order form, launch letter or online sign-up (the "Hotel", "you"), provided by HospitalityOS LLC, a Colorado limited liability company, 110 16th Street, Suite 1460, Denver, CO 80202 ("Nightcap", "we", "us"). The Data Processing Agreement ("DPA") is part of this Agreement. If the Hotel had a Scan, the Scan Terms applied until this Agreement was signed.
1. The Service
Nightcap connects to the Hotel's property management, point-of-sale and CRM systems, builds one profile per guest from that data, writes and sends messages to guests in the Hotel's name and voice across the channels the Hotel enables, routes conversations to the Hotel's staff where a person is needed, and reports the revenue attributed to the Service. We may improve the Service over time; we will not materially reduce its core functions during a paid term without notice.
2. Your data and our license to it
"Hotel Data" means all data the Hotel provides or that we obtain from the Hotel's systems on its behalf, including guest personal data, reservations, folios, messages and consent records, and all profiles and outputs we derive from it for the Hotel. The Hotel owns the Hotel Data. The Hotel grants us a non-exclusive, worldwide license during the term to host, process, analyze and use the Hotel Data solely to provide the Service to the Hotel, to support and secure it, and to comply with law. We may produce de-identified, aggregated statistics that do not identify the Hotel or any guest (for example, average direct-rebooking rates across hotels) and use them to improve and describe the Service; we will never publish a figure that could be traced to the Hotel.
3. What we will never do with your data
- We will not sell Hotel Data or any guest's personal data, to anyone, for any consideration.
- We will not share Hotel Data outside Nightcap and the subprocessors listed in the DPA, except as the Hotel instructs or the law requires.
- We will not use one hotel's data to message, analyze or benefit another hotel, and we will not combine guest profiles across hotels.
- We will not use Hotel Data to train machine-learning models, and our AI providers are contractually barred from doing so and configured for zero data retention.
- We will not message the Hotel's guests for our own purposes, or show the Nightcap brand to the Hotel's guests, except the assistant disclosure required by law.
4. Connections and access
The Hotel connects its systems through the method we support for each system: an authorized marketplace or API connection, a named view-only user the Hotel creates and controls, or exports the Hotel provides. The Hotel will not share personal logins with us and we will not request them. The Hotel confirms its software agreements permit the connection. Where we write back to a system (for example, guest notes and tags), we write only what the Hotel has enabled. The Hotel may revoke any connection at any time.
5. Messaging, consent and approvals
- The Hotel is the sender of every message. The Hotel sets the approval mode (approve all, approve marketing and money, or auto-send with exceptions), the Voice Card, quiet hours, objectives and limits, and can pause all outbound messaging at any time.
- We send marketing messages only where the Hotel's records show consent for the channel; we treat any message containing an offer as marketing; we honor opt-outs in any wording immediately and across channels; we include the disclosures and unsubscribe mechanisms the law requires; and we register the Hotel's messaging numbers with carriers before sending texts.
- The Hotel is responsible for the accuracy of the consent records in its systems and for instructions it gives us. We are responsible for following them.
- Conversations that mention money, refunds, safety, legal matters or a complaint, or in which a guest asks for a person, are routed to the Hotel's named staff, and the assistant stops replying on that thread until released.
6. Your responsibilities
The Hotel will: keep its account credentials secure and tell us promptly of unauthorized use; provide accurate information; comply with the laws that apply to it, including privacy, consumer-protection and telemarketing laws; have a lawful basis and, where required, consent for the guest data it provides and the messages it asks us to send; maintain its own privacy notice to guests that covers the use of a service provider like Nightcap; and use the Service only for its own hotel operations.
7. Fees
Fees are as stated on the order form or at nightcap.tech/#pricing at sign-up, billed monthly in advance by card through Stripe, with channel costs (SMS, WhatsApp, email and carrier fees) passed through at cost and shown on the ledger. There are no setup fees, no contracts beyond the month, no cancellation fees and never a fee charged to a guest. Where the Hotel chooses the performance option (Flex), the fee is the base fee plus 10% of "recovered direct revenue" as defined in Section 7A, subject to the cap in Section 7A; the Hotel may export the underlying bookings at any time and dispute any line within 30 days. Preferred launch rates are locked for the period stated in the launch letter. Prices for later periods may change with 30 days' notice.
7A. How recovered direct revenue is measured
These definitions govern the Flex fee and the ledger. They are applied the same way to every hotel and are shown, with the bookings behind each line, in the Revenue screen of the Service.
| Term | Definition |
|---|---|
| OTA-first guest | A guest whose earliest recorded stay at the Hotel carries an online travel agency booking source (for example Booking.com, Expedia, Agoda, Hotels.com, Airbnb, or a channel-manager code the Hotel maps to an OTA at setup). The mapping of source codes is agreed at setup and recorded in the Service. |
| Direct booking | A new reservation by that guest made through the Hotel's own booking engine, the Nightcap booking page, telephone, email or walk-in, carrying a non-OTA source code. |
| Attributed to Nightcap | A direct booking created within 30 days after the guest clicked a link in, or replied to, a message sent through the Service, or within 14 days after a message sent through the Service was delivered to that guest with no click. Each booking is attributed once, to the most recent qualifying message. A booking made before the message, or by a guest who was not OTA-first, is never attributed. |
| Recovered direct revenue | The room revenue (excluding taxes, fees, and food, beverage and other charges) of attributed direct bookings, net of cancellations and no-shows, counted in the month in which the stay is consumed. A cancelled or no-show booking never earns a fee. |
| Upsells | Early check-in, late checkout, upgrades, dining and packages accepted through the Service are reported separately on the ledger and never carry the 10% fee. |
| Cap | In any month the total Flex fee (base plus 10%) will not exceed twice the Flat monthly fee for the Hotel's room count. If the cap is reached in two consecutive months, the Hotel may switch to Flat from the next billing date. |
| Baseline | The Scan records the Hotel's direct bookings from OTA-first guests in the 90 days before the Service started. The ledger shows attributed revenue next to this baseline. |
| Reconciliation and disputes | The ledger is reconciled against the Hotel's PMS each night. The Hotel may dispute any attributed booking within 30 days of the invoice; a disputed booking is removed from the invoice pending review, and we will explain in writing why it was attributed. Where the parties cannot agree, the booking is excluded. |
We may improve the measurement method only in ways that are neutral or favorable to the Hotel, with 30 days' notice; the attribution windows and the cap in this Section change only by written agreement.
8. Term and exit
This Agreement starts on signature and continues month to month until either party ends it with notice before the next billing date. On exit, the Hotel may export all Hotel Data in common formats from the Service for 30 days; we then delete the Hotel Data from live systems within 30 days and from backups within 90 days, and confirm the deletion in writing, except for records we must keep by law or for billing. Either party may end this Agreement immediately for a material breach that is not cured within 15 days of notice, or if the other party becomes insolvent. Sections 2 (ownership), 3, 8, 10, 11, 12 and 13 survive.
9. Warranties
We warrant that the Service will perform materially as described, that we will provide it with reasonable skill and care, and that we will maintain the security measures described in the DPA. The Hotel warrants that it has the rights and consents described in Sections 4 to 6. Except as stated, the Service is provided "as is"; we do not warrant that any particular revenue, booking, review or guest response will result. Estimates in the Scan report and in the Service are estimates.
10. Indemnities
By the Hotel. The Hotel will defend, indemnify and hold harmless Nightcap, HospitalityOS LLC and its members, officers, employees and contractors from third-party claims, losses, fines, penalties and expenses (including reasonable legal fees) arising from: Hotel Data the Hotel was not entitled to provide; the Hotel's lack of consent or other lawful basis for data it provided or messages it approved or configured; the Hotel's instructions to us; the Hotel's breach of its software vendors' terms; or the Hotel's breach of this Agreement or applicable law.
By Nightcap. We will defend, indemnify and hold harmless the Hotel from third-party claims, losses, fines and expenses arising from our breach of Section 3, the DPA, or the security obligations in the DPA, or from a claim that the Service as provided by us infringes a third party's intellectual property.
The indemnified party will give prompt notice, allow the indemnifying party to control the defense and settlement (no settlement may admit fault on the indemnified party's behalf without consent), and cooperate reasonably.
11. Limitation of liability
Except for the indemnities in Section 10, a party's breach of Section 12, the Hotel's payment obligations, or a party's gross negligence or willful misconduct: (a) neither party is liable for indirect, incidental, special, consequential or punitive damages, or for lost profits, revenue or goodwill, even if advised of their possibility; and (b) each party's total liability under this Agreement in any 12-month period is limited to the fees paid or payable by the Hotel in the 12 months before the claim. For our breach of Section 3 or of the DPA's security obligations the cap is the greater of US $100,000 or three times those fees. Nothing in this Agreement limits liability that cannot be limited by law.
12. Confidentiality
Each party will keep the other's confidential information secret, use it only under this Agreement, and protect it with at least reasonable care, for five years after the Agreement ends and, for Hotel Data and trade secrets, for as long as they remain confidential. Confidential information excludes information that is public without breach, already known, independently developed or lawfully received from a third party. A party may disclose confidential information when required by law after giving notice where lawful.
13. General
This Agreement, the order form or launch letter, and the DPA are the entire agreement and replace any earlier discussions; in a conflict, the DPA prevails on data protection, then the order form, then this Agreement. Colorado law governs, with venue in the state and federal courts in Denver, Colorado; each party waives jury trial where permitted. Neither party may assign this Agreement without consent except to a successor of substantially all its business, with notice. Notices go by email to the addresses on the order form (for us, legal@nightcap.tech). Neither party is liable for delay caused by events beyond its reasonable control. If a term is unenforceable the rest stands. No waiver is implied. The parties are independent contractors. We may change this Agreement for future terms by posting a new version and giving 30 days' notice; continued use after that date is acceptance.