1. Definitions and interpretation
The following words have these meanings in the Agreement unless the contrary intention appears:
Agreement means this Services Agreement including any annexure;
Business Day means any day excluding Saturday, Sunday, a public holiday in New South Wales and/or a Commonwealth public holiday;
Commencement Date means the date stated on the contract or order as signed by both an authorised representative of eHotelier and the client.
Confidential Information means any information that is:
- Information, ideas forms, specifications, processes, statements, formulae, trade secrets, drawings and data (and copies and extracts made of or from that information and data) that is not in the public domain is considered confidential information; and
- confidential by nature, stipulated as confidential or any other information that would be reasonably considered to be confidential due to the value of the information;
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought to existence by Client or the Provider in the provision of the Services;
Order Details means the order for Services provided to the Client from Provider from time to time; and
Services means the services specified in Item 5 of the Order Details or as agreed between the Parties from time to time.
In this Agreement:
- references to a person include an individual, form or a body, whether incorporated or unincorporated;
- clause headings are for references only and shall not form part of this Agreement nor used in the interpretation of this Agreement;
- if the time of doing an act or thing under this Agreement falls on a day which is not a Business Day, then the time of doing that act or thing shall be deemed to be the next Business Day;
- words in the singular include the plural and vice versa in accordance with the context of which that word is used;
- words importing a gender include other genders;
- a reference to a clause is a reference to a clause in this Agreement;
- a reference to any of the words ‘include’, ‘includes’ and ‘including’ is to be read as if followed by the words “without limitation”;
- a reference to a statute, ordinance, code or law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of any of them;
- a reference to any party includes that party’s executors, administrators, substitutes, successors and permitted assigns; and
- each party has participated in the negotiating and drafting of this document and in the event of ambiguity or a question of interpretation arising, this Agreement is to be construed as if the Agreement was drafted jointly.
2. Commencing the Services
The Provider will commence the Services on the Commencement Date and provide them until the date 12 months thereafter, then on an annual basis until notification is given by either party to the other (prior to expiry of the twelve-month period) that the Services are no longer required or will not be provided in the following 12-month period.
3. Payment for the Services
Client agrees to pay the Provider an amount set out in Order Details (the ‘Consideration’). Client will make Payment of the Consideration pursuant to Order Details. Client will make Payment of Consideration by the method prescribed in Order Details.
Goods and Services Tax
Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with this Agreement and/or its Order Details, are listed in US dollars and are GST exclusive, being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999, inclusive amounts. Where the services are provided outside Australia, GST is inapplicable.
4. Copyright and Intellectual Property Rights
Intellectual Property Rights
- The Client recognises that all Intellectual Property are the property of Provider and the Client will take all such steps as practicable to ensure that the Intellectual Property will vest in and remain vested in Provider.
- The Client warrants that the Provider owns the Intellectual Property Rights in the Intellectual Property delivered to Client in the provision of the Services.
- The Provider grants to Client a non-exclusive, non-transferable licence to use the intellectual property rights owned by the Provider in the provision of the Services.
The Client hereby indemnifies and agrees to keep indemnified Provider against all liability, losses or expenses incurred by Client in relation to or in any way directly or indirectly connected with any breach of copyright or any rights in relation to copyright in such literary and artistic works supplied as aforesaid.
5. Termination of this Agreement
- The Client may terminate this Agreement by providing the Provider with a minimum of thirty (30) days’ written notice prior to the anniversary of the Agreement of Client’s intent to terminate this Agreement.
- Upon receiving notification of the Client’s intent to terminate this Agreement, the Provider will continue to provide the Services until the end of the current agreement.
- The Client will continue to pay the Provider for the remainder of the current Agreement.
For the Provider:
- The provider may terminate or assign this agreement by giving 30 days written notice to the Client.
6. Liability and waivers
- The Services are provided without any guarantees, conditions or warranties as to its accuracy. To the maximum extent permitted by law, we hereby expressly exclude:
- all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity; and
- any liability for any direct, indirect or consequential loss or damage incurred by any user in connection with the services or in connection with the use, inability to use, or results of the use of the services, or website or any websites linked to it and any materials posted on it, including:
- loss of income or revenue;
- loss of business;
- loss of profits or contracts;
- loss of anticipated savings;
- loss of data;
- loss of goodwill; and
- wasted management or office time
- whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
- A waiver of any right, power or remedy under this agreement must be in writing signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
- The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement does not amount to a waiver.
eHotelier will take all reasonable steps to notify the Client in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information.
This clause 7 will survive the termination or expiry of this Agreement.
8. General matters
The parties agree on the forms of communication pursuant to Item 8 of Order Details.
- Disclosure and Use of Confidential Information
- All obligations of confidence set out in this Agreement continue in full force and effect after the Completion Date.
- Neither party may disclose any Confidential Information to any third party, without the prior consent of the other party.
- Each party must keep confidential the terms of this Agreement. If a party becomes aware of a breach of this obligation, that party will immediately notify the other party.
- If a party uses any Confidential Information without the prior consent of the other, such party is liable for any damage suffered by the other and/or its affiliate as a result of the use.
- No partnership or agency
Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
- Governing Law & Jurisdiction
- This Agreement is governed by the laws of New South Wales, Australia.
- In the event of any dispute arising out of or in relation to the Services, the Client agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in New South Wales, Australia.
- Dispute Resolution & Mediation
- If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
- A party to this Agreement claiming a dispute (the ‘Dispute’) has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the ‘Notice’).
- On receipt of the Notice by the other party, the parties to this Agreement (the ‘Parties’) must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
- If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved, either party may institute legal proceedings.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
The Client will not delegate, assign, novate and/or subcontract any obligations pursuant to this Agreement to any person.
9. Entire Agreement and Modifications
- Both Client and the Provider confirm and acknowledge that:
- This Agreement shall constitute the entire agreement between the Provider and Client and shall supersede and override all previous communications, either oral or written, between the parties;
- No agreement or understanding varying or extending this Agreement shall be binding upon any party unless arising out of the specific provisions of this Agreement; and
- Both Client and the Provider confirm and acknowledge that:
If for whatever reason there is an inconsistency between this Agreement and any other agreement, this Agreement shall prevail.
This legal notice applies to the entire contents of this Website under the domain name https://ehotelier.com (“Website”) and to any correspondence by e-mail between us and you. Please read these terms carefully before using the Website. Using the Website indicates that you accept these terms regardless of whether or not you choose to register with us. If you do not accept these terms, do not use the Website. This notice is issued by Exceed Global Learning Pty Limited with its registered office address PO Box 77 Frenchs Forest NSW 1640 Australia, (“ehotelier.com”).
INFORMATION ABOUT US
The Website is a website operated by ehotelier.com. We are registered in Australia under ABN 9633 440 226 01, with our trading address at PO Box 77 Frenchs Forest NSW 1640 Australia.
1. ACCESSING OUR WEBSITE
1.1. Access to our Website is permitted on a temporary basis, and we reserve the right to withdraw or amend the service we provide on our Website without notice (see below). We will not be liable if for any reason our Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of our Website, or our entire Website.
1.3. You are responsible for making all arrangements necessary for you to have access to our Website. You are also responsible for ensuring that all persons who access our Website through your internet connection are aware of these terms, and that they comply with them.
2. INTELLECTUAL PROPERTY RIGHTS
2.1. We are the owner or the licensee of all intellectual property rights in our Website, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
2.2. You may print off one copy, and may download extracts, of any page(s) from our Website for your personal reference and you may draw the attention of others within your organisation to material posted on our site.
2.3. You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
2.4. Our status (and that of any identified contributors) as the authors of material on our site must always be acknowledged.
2.5. You must not use any part of the materials on our site for commercial purposes without obtaining a licence to do so from us or our licensors.
3. VISITOR MATERIAL AND CONDUCT
3.1. Other than personally identifiable information, any material you transmit or post to this Website will be considered non-confidential and non-proprietary. ehotelier.com will have no obligations with respect to such material. ehotelier.com and anyone we designate will be free to copy, disclose, distribute, incorporate and otherwise use that material and all data, images, sounds, text and other things embodied in it for any and all commercial or non-commercial purposes.
3.2. You are prohibited from posting, uploading or transmitting to or from this Website any material that:
3.2.1. breaches any applicable local, national or international law;
3.2.2. is unlawful or fraudulent;
3.2.3. amounts to unauthorised advertising; or
3.2.4. contains viruses or any other harmful programs.
3.3. You may not misuse the Website (including by hacking – see clause 5 below) and you shall indemnify and hold ehotelier.com harmless from any and all claims, liabilities, losses, damages, costs and expenses, arising out of or in connection with you misusing the Website.
3.4. Any comments or feedback that you submit through the Website must not:
3.4.1. contain any defamatory, obscene or offensive material;
3.4.2. promote violence or discrimination;
3.4.3. infringe the intellectual property rights of another person;
3.4.4. breach any legal duty owed to a third party (such as a duty of confidence);
3.4.5. promote illegal activity or invade another’s privacy;
3.4.6. give the impression that they originate from us; or
3.4.7. be used to impersonate another person or to misrepresent your affiliation with another person.
3.5. ehotelier.com will fully co-operate with any law enforcement authorities or court order requesting or directing us to disclose the identity or location of anyone posting any material in breach of clauses 3.2 and 3.4.
4. VIRUSES, HACKING AND OTHER OFFENCES
4.1. You must not misuse our Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to our Website, the server on which our Website is stored or any server, computer or database connected to our Website. You must not attack our Website via a denial-of-service attack or a distributed denial-of service attack.
4.2. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Website will cease immediately. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our site or to your downloading of any material posted on it, or on any website linked to it.
5. LINKS TO AND FROM OTHER WEBSITES
5.1. Links to third party websites on this Website are provided solely for your convenience. If you use these links, you leave this Website. ehotelier.com has not reviewed all of these third party websites and does not control (and is not responsible for these websites or their content or availability). ehotelier.com does not endorse or make any representation about them, the material on them, or the results from using them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk.
5.2. You may link to this Website homepage, provided that you do so in a fair and legal way which does not damage ehotelier.com’s reputation or take advantage of it.
5.3. You must not establish a link from a website that is not owned by you or in a way that suggests a form of association with or endorsement by ehotelier.com where none exists.
5.5. ehotelier.com has the right to withdraw the linking permission at any time.
6.1. While ehotelier.com tries to ensure that information on this Website is correct, we do not guarantee or represent it is accurate, up to date or complete. ehotelier.com may make changes to the material on this Website, or to the services and prices described in it, at any time without notice. The material on this Website may be out of date, and ehotelier.com makes no commitment to update that material.
7. OUR LIABILITY
7.1. The material displayed on our Website is provided without any guarantees, conditions or warranties as to its accuracy. To the maximum extent permitted by law, we hereby expressly exclude:
7.1.1. all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity; and
7.1.2. any liability for any direct, indirect or consequential loss or damage incurred by any user in connection with our Website or in connection with the use, inability to use, or results of the use of our Website, any websites linked to it and any materials posted on it, including:
22.214.171.124. loss of income or revenue;
126.96.36.199. loss of business;
188.8.131.52. loss of profits or contracts;
184.108.40.206. loss of anticipated savings;
220.127.116.11. loss of data;
18.104.22.168. loss of goodwill; and
22.214.171.124. wasted management or office time
whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
7.2. Clauses 7.1 and 7.2 do not affect our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation, nor any other liability which cannot be excluded or limited under applicable law.
8.1. ehotelier.com may terminate or suspend (at our absolute discretion) your right to use this Website and your use of the services immediately by notifying you in writing (including by email) if:
8.1.1. ehotelier.com believes you have posted material in breach of clauses 3.2, 3.4 (Visitor Material and Conduct) or 4.1 (Viruses, Hacking and Other Offences);
8.1.2. ehotelier.com believes that you have breached paragraphs 5.2, 5.3 and 5.4 (Links to and from other websites); or
8.1.4. Upon termination or suspension you must immediately destroy any downloaded or printed extracts from this Website.
9. TRADE MARKS AND LOGOS
eHotelier is a registered business name owned by ehotelier.com. The restrictions set out clause 2 (Intellectual Property Rights) apply to your use of this business name.
11. ADDITIONAL TERMS
“Data Protection Laws” means all data protection, privacy or similar laws and regulations anywhere in the world applicable to the processing of personal data, including without limitation the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
12. JURISDICTION AND APPLICABLE LAW