TERMS OF ALLOTZ .COM LIMITED ACCOMMODATION PROVIDERS AGREEMENT
IMPORTANT NOTICE: The terms and conditions below are an offer to you by Allotz.com Limited. If you click on the "I Accept" box at the bottom of these terms and conditions, you will accept the offer, your acceptance will be immediately transmitted to us and you will become bound by the terms of this Agreement immediately.
- ALLOTZ.COM LIMITED ACN 118 777 245 ("we")
- The party which Registers as user of the Allotz System through our website and accepts this offer ("you")
- We are the owners of the Allotz System which receives and transmits data about Accommodation Listings.
- You are an Accommodation Provider who sells Accommodation Properties.
- You wish to use the Allotz System to provide Accommodation Listings to Resellers through us for the purpose of using their Channels to advertise and sell your Accommodation Properties under terms you have agreed on with Resellers.
TERMS AND CONDITIONS:
1. Formation of Agreement
- This document constitutes an offer by us to you.
- This offer is capable of acceptance by you by clicking the "I Accept" button at the end of this document. Your acceptance will be immediately transmitted to us and a legally binding Agreement will be formed on the terms and conditions set out in this document.
- The information you provided us on Registration forms part of the Agreement as necessary.
- There is no other method of acceptance of our offer.
- Access to the Allotz System will be provided to you after we verify the information you provided us on Registration. If we are not satisfied with that information we reserve the right to cancel this Agreement by notice to you immediately.
- In consideration of payment of the Service Fee by you to us, we will grant you a licence to the Allotz System.
3. Allotz System
- You are hereby granted a non-exclusive, non-transferable, limited licence to obtain access to the Allotz System.
- You are entitled to transmit Accommodation Listings to the Allotz System using the Allotz System.
- The Allotz System will make your Accommodation Listings available to Resellers for sale through Resellers' Channels;
- The Allotz System will transmit your Accommodation Listings to nominated Resellers and you are entitled to change your nominations from time to time.
- If a particular nominated Reseller is unavailable, we will transmit your Accommodation Listings to other nominated Resellers in accordance with the Allotz System.
- We may remove Accommodation Listings from Resellers at any time and transmit them to other nominated Resellers in accordance with the Allotz System.
- We will notify you of any changes to the Allotz System which we make from time to time. If we do, we will make them available to you at your current Service Level for no extra charge. You may be required to obtain further details from our website and to agree to further terms and conditions forming part of the Agreement (subject to your right to terminate this Agreement under clause 11(1)(f). .
- We will provide you with reasonable email-based support for the Allotz System at no charge. Telephone or on-site support may be charged for at our current levels as advertised on our website.
4. Service Level and Fees
- We will provide information regarding details of Service Levels, Additional Packages and their respective monthly fees on our website and:
- we may amend them from time to time.
- if we do so we will give you at least four (4) weeks notice prior to the changes coming into effect; and
- if you consider such changes to be materially detrimental to your interests you may terminate this agreement by giving us notice prior to the changes coming into effect.
- During Registration you must select the Service Level that you require and any Additional Packages and pay the corresponding Service Fee prior to commencement of our services.
- All Service Fee payments must be received within seven (7) days of our electronic or other invoice by way of Credit Card, or as designated by us to our Account. We may require you to pay your Service Fees by automatic bank transfer.
- Payment will be monthly in advance and we are under no obligation to provide any services to you until the first payment has been made.
- In the event that you fail to make a required payment to us under this Agreement or any other obligation to us, we may suspend your access to the Allotz System and in addition we may exercise our rights under clause 11(1)(h).
- You may change your Service Level and Additional Packages by notifying us in the manner we prescribe and paying the appropriate Service Level Fee for the next month. Upon receipt of payment and your completion of any other formalities we require, we will adjust your Service Level and any Additional Packages accordingly.
- All statutory duties and taxes relating to or payable upon the Service Fees, including but not limited to Goods and Services Tax or any other form of impost required to be paid to or collected by us are included in the Service Fees.
- If you require us to distribute your Accommodation Properties through a Global Distribution System, you must pay us an additional sum to be held by us in a credit account for you. You authorise us to pay from that account such amounts as are charged to us as transaction fees by the Global Distribution System. We will require you to maintain a balance in such account in an amount we advise you and you must add funds to that account immediately when we request you to do so. Failure to do so will preclude you from using this aspect of the Allotz System
This Agreement commences when it is formed under clause 1(2) and will continue until terminated under clause 11.
6. Allotz System
You acknowledge that:
- the only service we provide to you is access to the Allotz System;
- any agreement by you to market and sell Accommodation Properties must be entered into with the relevant Reseller
- we have no interest in or control over your Accommodation Listings and we only provide a system for allocating and transmitting Accommodation Listings to Resellers (and associated functionalities) as determined by you
- all information supplied to you in or about Channels, is supplied by Resellers and:
- we have no independent knowledge of it,
- we will not check or verify it,
- we provide no representations, warranties, undertakings or information of any description relating to it;
- we do not control, endorse, guarantee or approve any Resellers or their Channels, pricing, standards, performance, credit worthiness, policies, procedures or any of the information contained on their Channels. You acknowledge that you are responsible for checking and being satisfied with all matters relating to each Reseller and their Channels and verifying all information to your own satisfaction.
- you acknowledge and agree that all agreements, understandings and arrangements regarding the terms upon which Accommodation Properties are to be marketed and sold by Resellers, actual terms of sale of Accommodation Properties by Resellers and all payments, charges, liabilities and obligations in relation to the marketing and sale of such Accommodation Properties are matters solely for agreement between you and Resellers, do not form part of this Agreement and we have no obligation or liability relating to such matters.
- we do not make or receive any payment to or from you, Resellers or any other party based or calculated on the sale of Accommodation Properties other than transactions relating to the use of a Global Distribution Service where applicable.
- we are not authorised to, nor shall we, make any payment or accept any liability to you or any other person arising out of a dealing of any description by you or any other person with respect to Accommodation Properties or Resellers; and
- payment of all fees or other consideration by you for the sale of Accommodation Properties must be made to the relevant Reseller or as otherwise agreed between you and the Reseller and we have no liability in any manner to pay the same.
- you must ensure that an Accommodation Property is not listed more than once at any time in the Allotz System, whether through you or a third party.
- You must at all times maintain industry standard privacy protection for Consumers, Resellers and their Channels.
8. Intellectual Property
- We retain ownership of all Intellectual Property in or relating to the Allotz System whether in original form or as modified by you or anyone else.
- Any Intellectual Property you create or cause or permit to be created which is derived from or based on our Intellectual Property is our property and is hereby assigned to us.
- You grant us a licence for use of your trade marks in the Allotz System and you hereby indemnify us for any misuse of such Intellectual Property.
- Nothing in this Agreement affects the ownership of moral rights.
- We warrant that we have the right to grant licences of Intellectual Property in this Agreement to you.
- You warrant that any information you upload to the Allotz System is accurate and does not contain offensive material or infringe any person's Intellectual Property.
- You must not, and you must not allow any other person, to copy, reverse engineer or otherwise attempt to discover the source code of any part of the Allotz System.
- Neither party may disclose or use the other party's Confidential Information other than as authorised under this Agreement and in accordance with the Allotz System. Any breach of this obligation is deemed to be a terminating event.
- If a party receives Confidential Information from or in relation to the other party, it must keep that information confidential and preserve it in a confidential manner at least to the same extent and with the same safeguards as it preserves its own Confidential Information and may only disclose it to its officers, employees and professional advisers if they are bound by the same requirements of confidentiality and for purposes associated with this Agreement only.
10. Disclaimer of Liability and Indemnity
- You warrant that you have been made aware of the nature and functionality provided by the Allotz System and enter into this Agreement on the basis that:
- we make no express or implied representation, warranties or undertakings regarding the Allotz System, its performance, availability or functionality other than as required by statute and to the maximum extent permitted at law we expressly disclaim and exclude all statutory warranties which are able to be so excluded and disclaimed
- except in relation to liability for personal injury (including sickness and death), our liability in damages (including special, indirect, consequential or punitive damages, which damages will be deemed to include loss of revenue, loss of profit and opportunity loss) in respect of any act or omission or matter in connection with this Agreement will not exceed the amount of One Hundred Dollars (USD$100.00) even if we have been advised by you as to the possibility of such losses being incurred
- we are not liable to you or any other third party for loss or damage caused by any information that was supplied to us by a third party.
- you acknowledge that the Allotz System operates only over the Internet on a best efforts basis only and we are not liable for any loss or damages caused by any unavailability of the Allotz System.
- we make no representation or warranty that operation of the Allotz System will be uninterrupted or error free in relation to transmissions and we will not be liable for the consequences of such.
- we will use reasonable commercial endeavours to ensure that any information or data transmitted by us to you is free of all viruses, malicious code, malware, errors, faults, or any similar matter which may be cause or lead to damage, loss of functionality, inconvenience, corruption, breakdown of security or similar relating to a computer system. However, we accept no liability relating to any such matters and you must institute and maintain all necessary precaution and safeguards.
- you agree to indemnify us against any claims, actions, loss, damage, costs or similar which we are subject to or liable for arising out of your entry into this Agreement, your use of the Allotz System, actions by you, your Related Entities, or by a third party, including Consumers unless they arise directly from our breach of this Agreement.
- nothing in this agreement limits or excludes rights, obligations or warranties implied by Statute.
- For the purpose of this Agreement, the following are terminating events:
- the breach or threatened breach by either party of any of its material obligations under this Agreement;
- the breach or threatened breach by either party of any of its non-material obligations under this Agreement;
- the appointment of any type of external administrator in respect of the property or affairs of either party;
- the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;
- if you do not use the Allotz System or any part of it for a period of time in excess of thirty (30) consecutive days, or in excess of thirty (30) days in total over any three (3) month period;
- if you notify us you do not wish to be bound by further terms and conditions relating to the changes referred to in clause 3(4);
- if one party gives the other one (1) month’s notice of termination without cause; or
- any event described in this Agreement as a terminating event.
- Subject to clause 11(3), this Agreement may be terminated immediately on the happening of a terminating event to, by or in respect of a party ("party in breach") at the option of the other party ("affected party").
- If the terminating event is a threatened breach under clause 11(1)(a) or a breach or threatened breach under clause 11(1)(b) above, the affected party will give to the party in breach notice of the terminating event and require the breach to be remedied, a written undertaking to be given that the breach will not occur or withdrawal of any threatened breach, as the case may be at the option of the affected party. If the breach is not remedied, undertaking not given or threatened breach withdrawn (as the case may be) within seven (7) days the affected party may terminate this Agreement by notice in writing.
- Any termination of this Agreement will not affect any accrued rights or liabilities of either party, nor will it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination, including the provisions of clauses 9 and 10.
- We may suspend operation of this Agreement, your rights under it, your Allotz System Licence and access to the Allotz System in you are in breach of any conditions of this Agreement.
- Force Majeure
- (1) Neither party is liable to the other for any failure to perform any of their obligations under this Agreement (other than an obligation to pay money) caused by any of the events set out below, if they make performance of this Agreement impossible, not more onerous or uneconomic:
- an act of God.
- the outbreak of hostilities (whether or not accompanied by any formal declaration of war), riot, civil disturbance or acts of terrorism.
- the act of any government or competent authority (including the cancellation or revocation of any approval, authority or permit).
- fire, explosion, flood, inclement weather, or natural disaster.
- the declaration of a state of emergency or the invocation of martial law having an effect on commerce generally.
- industrial action (including strikes and lock-outs) that is of a widespread nature affecting either party personally or the industry or sector of which either party is a part (whether in a vertical sense or horizontal sense).
- the default of any third party suppliers.
- any other cause, impediment or circumstance beyond the reasonable control of any party:
- which could not be taken into account on the formation of this Agreement.
- whose consequences could not be avoided.
13. Variations to the Agreement
No variation or waiver of any provision of this Agreement will be of any effect unless it is in writing signed by the parties.
No failure, delay, relaxation or indulgence by a party in exercising any power or right under this Agreement will operate as a waiver of that right nor will the exercise of that power or right on one occasion preclude it or any other power or right from being exercised on any other occasion.
15. Further Assurances
The parties agree to do all things necessary, including signing any documents, to make performance of this Agreement more effective, whether before or after it is completed.
16. Exercise of Discretion
If a party is required or entitled to make a determination or decision of any nature, unless the context otherwise requires, it may do so in its absolute discretion.
17. Relationship of the Parties
Our sole obligation under this Agreement is as the provider of a limited service to you as set out in this Agreement, and you acknowledge and agree that we do not act as agent, representative, partner or fiduciary of or for you and any implication to the contrary is hereby negatived.
18. Independence and Severability
- If any provision of this agreement is held by a Court to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation:
- that provision is to be read down, if possible, so as to be valid and enforceable; and
- if that provision is not capable of being read down in accordance with sub-clause (1) above, it may be severed from this agreement and the validity and enforceability of the remaining provisions will not be affected.
- Form and Service A notice or other formal communication required to be given under this Agreement must be addressed to the party to whom it is to be given and must be in writing and sent:
- to the last known address of that party by pre-paid post
- by facsimile transmission to the last known facsimile number of that party on a business day between 9:00am and 5:00pm; or
- by electronic mail to the last known address of that party.
- Time of Service
- (a) A notice or other formal communication is deemed to be given and received:-
- If given in accordance with sub-clause (1)(a) above, on clear business day after the date of posting to an address in Australia, or otherwise three clear business days after the date of posting.
- If given in accordance with sub-clause 1(b) above, on the date of written confirmation of transmission to the recipient; or
- If given in accordance with sub-clause 1(c) above, on the date of dispatch provided that it was sent no later than 5:00pm on a business day and provided notice of non-delivery is not received within 24 hours by the transmitting party. If it is subsequently delivered, the notice or other formal communication is deemed to be given and received at the time of delivery.
- Any notice or formal communication sent later than 5:00p.m. on a business day, or on a day that is not a business day, is deemed to be given and received on the following business day;
- All references to time and day in this clause are to the time and day in the State of Queensland, Australia.
- (a) A notice or other formal communication is deemed to be given and received:-
20. Governing Law and Jurisdiction
This Agreement must be governed by and construed in accordance with the law in force in the State of Queensland, Australia and the Courts of that State will have non exclusive jurisdiction.
21. Definitions and Interpretation
- "Accommodation Property" means a property available for short-term residential occupancy and the right to occupy it;
- "Accommodation Listing" means details of Accommodation Properties as provided to you by Accommodation Providers through the Allotz System;
- "Accommodation Provider" means a person who provides Accommodation Properties through the Allotz System;
- "Allotz System" means the system operated by us for transmitting Accommodation Listings from Accommodation Providers to Resellers including all Software and Intellectual Property relating to it in any way;
- "API" means any Application Programming Interface or specification for interoperability with or to the Allotz System provided by us;
- "Channel" means your website, store or other method of selling accommodation;
- "Confidential Information" includes, but is not limited to:
- financial statements and information;
- customer, licensee and distributor lists (actual and proposed);
- cost and selling price information;
- trade secrets, know-how and specifications in respect of the party's products, services and intellectual property;
- business and marketing plans;
- plans for future products and services;
- records of business operations;
- third party information disclosed to a party in confidence;
but does not include information that is generally known or made available to the general public otherwise than by breach of this Deed or other obligation of confidentiality.
- "Consumers" means customers, potential customers or other persons using your Channel;
- "Intellectual Property" means the rights to any and all intellectual, commercial and industrial property throughout the World, whether registered or not, forming part of or relating to the Allotz System and whether owned by or licensed to us, or to which we have rights or claims, including but not limited to:
- copyright in works,
- inventions (including patents),
- trade marks and service marks,
- designs and circuit layouts,
- future rights and rights in the nature of or analogous to items (i) to (iv),
- the right to apply for protection of or take action relating to any of the above rights,
- trade secrets and confidential information;
- "Register" means the provision by you of the mandatory information on our website prior to receiving this offer and "Registration" has the corresponding meaning;
- "Related Entity" has the meaning given to it by Section 9 of the Corporations Act 2001
- "Reseller" means a person who is engaged in selling Accommodation Properties on behalf of Accommodation Providers;
- "selling" includes advertising, reserving and booking; and
- "Service Fees" means all fees payable by you to us for goods and services provided under the Allotz System, the initial fee being payable on formation of this agreement, before any services commence and then monthly in advance
- "Service Levels" means the various service packages available for use of the Allotz System as described on our website
- "Software" means software (including modifications and updates) used in and forming part of the Allotz System including source and object code and all documentation and media containing the same.
- "writing" includes transmissions by facsimile and electronic mail and "signing" includes a digital signature.
- "Consumers" means customers, potential customers or other persons using your Channel;
In addition to any terms defined elsewhere in this Agreement, the following terms will, where the context allows, have the following meanings:
- In this Agreement unless the context otherwise requires:
- "we" includes "we", "us", "our" and "ours";
- "you" includes "you", "your" and "yours";
- the singular includes the plural and vice versa;
- a reference to a person includes a corporation, partnership, joint venture and any other entity, association or body, whether having a separate legal existence or not;
- a reference to a statute includes amendments, consolidation or replacements and any subordinate legislation issued under that statute;
- an expression denoting a gender includes all genders;
- a recital, schedule, annexure, appendix or exhibit forms part of this Agreement;
- reference to a recital, clause, schedule, annexure, appendix or exhibit is to the relevant part of this Agreement;
- reference to any agreement or this Agreement includes any of their provisions as amended, novated, supplemented or replaced from time to time;
- reference to a party includes employees, contractors, consultants, agents, fiduciaries, executors, administrators, substitutes, successors and permitted assigns of that party;
- reference to a government includes a Federal, State or Local government or statutory authority.
- Headings in this Agreement and the Index or Table of Contents (if any) are for ease of reference only and do not affect the construction or interpretation of this Agreement.
- In this Agreement unless the context otherwise requires:
22. Entire Agreement
This Agreement supersedes all previous conditions, representations, agreements, warranties or understandings about the Allotz System and embodies the entire terms of the agreement between us.