- Definitions and interpretation
- Definitions
The following words have these meanings in this 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 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.
- Interpretation
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 include 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.
- Commencing the Services
- 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.
- Payment for the Services
- Consideration
Client agrees to pay the Provider an amount set out in Item 5 of Order Details (the ‘Consideration’).
- Time and Method for Payment
- Client will make Payment of the Consideration pursuant to Item 6 of Order Details.
- Client will make Payment of Consideration by the method prescribed in Item 7 of 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.
- 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 an-exclusive, non-transferable licence to use the intellectual property rights owned by the Provider in provision of the Services.
- Indemnification
- Intellectual Property Rights
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.
- Termination of this Agreement
- For Client
- 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 Client’s intent to terminate this Agreement, the Provider will continue to provide the Services until the end of the current agreement.
- Client will continue to pay the Provider for the remainder of the current Agreement.
- For Client
- Liability and waivers
- Liability
- 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.
- Waivers
- 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.
- 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:
- Liability
- General matters
- Communication between Parties
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.
- Severance
Any provision of this Agreement which 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.
- Assignment
The Client will not delegate, assign, novate and/or subcontract any obligations pursuant to this Agreement to any person.
- 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 inconsistency between this Agreement and any other agreement, this Agreement shall prevail.
