This agreement ("Agreement") contains the terms and conditions that govern your access to and use of the Bookability.io Software and Services and is made between Bookability.io and you or the entity you represent ("you"). This Agreement commences on the Commencement Date. You represent that you are legally able to enter into this Agreement and, where you are signing up on behalf of another legal entity, that you have the legal authority to bind that entity.
Bookability.io provides tour and activity online booking software comprising inventory management software, customer relationship management software, sales and distribution software and other related software ("Bookability.io Software") to its customers. Upon entering into this Agreement, Bookability.io grants you a limited, revocable, non-transferable and non-exclusive licence to access and use the Bookability.io Software only in accordance with this Agreement and for the purpose of:
If you have elected to obtain Distribution Services you authorise us to make any information relating to your inventory and stored on the Bookability.io inventory management system available to the Distribution Channels selected by you.
You represent and warrant that you have a contract with all the Distribution Channels selected by you for the sale of your inventory by those Distribution Channels and you agree to maintain those contracts for the term of this Agreement. If your contract with a Distribution Channel is suspended or terminated for any reason you must notify us as soon as practicable and you acknowledge that we will cease providing that Distribution Channel with access to your inventory.
You are liable for any fees or charges incurred pursuant to any contracts you enter into with a Distribution Channel. You acknowledge that any fees applicable under any such contract are separate and in addition to any charges payable to Bookability.io pursuant to this Agreement.
In respect of any bookings generated through a Distribution Channel, we are responsible for processing the transaction but are not a party to any agreement between you, the Distribution Channel and your customers. You acknowledge we do not control or monitor the Distribution Channels and agree that we are not liable for any action or omission by a Distribution Channel.
To access the Bookability.io Software you must register with us by creating an account on our website. You will then be required to activate Your Account by providing us with your credit card details and any other details required by us.
If you are entitled to a free trial, you do not need to activate Your Account at the time of registration but must activate Your Account prior to the end of the trial. If you do not activate Your Account before the trial ends we will immediately terminate your access to Your Account and the Services.
If you are registering on behalf of a company you represent and warrant that you have the requisite authority to register on behalf of that company. You are responsible for ensuring that all information provided to us (including the information stored in Your Account), remains complete and up to date.
Once you have registered we will provide you with a username and password. You are responsible for the security of your password and all activity on Your Account (whether or not undertaken by you) and indemnify us against any unauthorised access.
You are responsible for the accuracy and management of all data uploaded using Your Account. You agree to indemnify Bookability.io and its related bodies corporate against any damages, costs, claims or liabilities arising from or in connection with any data uploaded using Your Account.
You agree not to:
We may make third party content such as software applications, website links or communication forums (including but not limited to online bulletin boards, chat forums, news groups or any other communication forum) available from time to time ("Third Party Content"). Any Third Party Content is owned by the party contributing that content.
As a user of any communication forum you are responsible for your content. By transmitting content on any such forum you represent that you have all rights and authority necessary to post, submit, display, produce or otherwise transmit the content and you agree that you will not submit material that is or contains third party intellectual property unless you have authority to use it.
You agree that any content transmitted on a communication forum is not confidential. By submitting any material to a communication forum you grant us an irrevocable right to use, reproduce, distribute, modify or display the material in connection with the Bookability.io Software or Services. To the extent that you do not have ownership rights to the content transmitted by you on a communication forum, you indemnify us for any claim regarding our use of the content.
We reserve the right to delete or remove any material placed by you on any communication forum that we, in our sole discretion, deem inappropriate.
Third Party Content is not controlled, monitored, tested or endorsed by us and use of any Third Party Content is at your own risk. We will not be liable for any damage, costs, claims or liability incurred as a result of your use of the Third Party Content.
You are responsible for;
We may, from time to time and in our sole discretion, release modifications or upgrades to the Bookability.io Software but are under no obligation to do so. You consent to us modifying or upgrading the Bookability.io Software without your knowledge.
You acknowledge from time to time we may be required to undertake scheduled or unscheduled maintenance and this may cause interruptions to the Services. You may not be able to process bookings using the Bookability.io Software during this time. Where practicable we will provide you with at least 2 days notice in respect of any scheduled maintenance period or upgrade. Any general maintenance periods will be specified on our website.
If you have elected to pay monthly, payment of all fixed monthly Service Charges are payable in advance on the Due Date. All Usage Charges are payable monthly in arrears. We will issue you with a tax invoice you for the charges on a monthly basis.
If you have elected to pay annually in advance, an amount equal to the Service Charges for a 12 month period is payable upfront. All Usage Charges are payable monthly in arrears. We will invoice you for the initial 12 month payment and will issue further invoices as necessary in respect of any Usage Charges.
In addition to any other charges applicable under this Agreement, if you terminate the Services during any applicable Minimum Period, you will be liable to pay us a genuine estimate of the loss incurred by the early termination being an amount equal to 80% of the Service Charges multiplied by the number of months remaining in the Minimum Period.
You authorise us to debit all applicable charges from your bank account using the credit card details associated with your Bookability.io account.
Where applicable, you will not be liable for any charges incurred during any free trial period.
All charges, including but not limited to monthly Service Charges, are subject to change on 30 days notice. If you are obtaining Distribution Services no pricing changes will take effect during the Minimum Period. If you have paid for the Services in advance, no pricing changes will take effect until the end of the prepaid period.
All fees and charges quoted are exclusive of GST, VAT, withholding tax and any other applicable taxes or duties. You are liable for any applicable taxes in relation to the Services.
All charges paid to Bookability.io are non-refundable, including but not limited to any Service Charges paid in advance.
We may suspend your access to the Services and/or Your Account if we reasonably determine:
Service Charges will continue to accrue during a suspension imposed by us.
You may suspend the Services at any time for a maximum of 11 months via Your Account. At the time you elect to suspend the Services you must elect a date for the suspension to end. No Service Charges will accrue during any such suspension however you must pay a fee equal to the Service Charges for a one month period. This fee will be set off against the first month’s Service Charges when you reactivate your Services. For the avoidance of doubt, where you suspend the Services before the end of a particular month or prepaid period, you will forfeit the fees already paid in respect of that period.
You will not be able to access Your Account during a suspension period. In the case of a suspension elected by you, access to Your Account will be automatically reinstated on the date you have elected to end the suspension.
This Services Agreement applies from the Commencement Date and includes any applicable free trial period, any term as set out below and any other period during which you are using or have access to the Services.
If the Services you have elected do not include Distribution Services and you have elected to pay:
If you have elected to obtain Distribution Services the term of this Agreement will commence on the Activation Date and continue for the Minimum Period (unless you obtain the Distribution Services at a later date in which case the Minimum Period will commence on the date you acquire access to the Distribution Services). Either party may terminate this agreement by providing written notice at least 14 days prior to the expiry of the Minimum Period, in which case the effective date of termination will be the end of the Minimum period. If this Agreement is not terminated at the end of the Minimum Period it will continue until either party provides the other party with 14 days written notice of termination. In addition, you may elect to terminate the Services at any time during the Minimum Period by giving us at least 14 days written notice of termination, however early termination charges will apply.
Notwithstanding any other clause of this Agreement Bookability.io may terminate this Agreement (and your access to the Bookability.io Software) by notice and with immediate effect if:
Either party may terminate the Agreement with immediate effect by written notice if the other party becomes or resolves to become subject to any form of insolvency administration.
Upon termination of this Agreement access to Your Account will be terminated.
You represent and warrant that:
We acknowledge that you retain all rights, title and interest in Your Content. You consent to our use of Your Content for the purpose of fulfilling our obligations under this Agreement.
You acknowledge that we or our affiliates or licensors own all rights, title and interest in and to the Bookability.io Software (including but not limited to any images, photographs, videos, audio and text incorporated into the Bookability.io Software). Except as provided pursuant to this Agreement, you obtain no rights to the Bookability.io Software or Services, including any related intellectual property rights.
You may have rights under statutory consumer protection laws, including the Competition and Consumer Act 2010 (Cth), which cannot be excluded, restricted, limited or modified. The exclusions and limitations in this clause, apply subject to any rights you may have under such laws.
The Bookability.io Software and the Services are provided "as is" and we make no representations or warranties of any kind regarding the Bookability.io Software or Services. We do not warrant that the Bookability.io Software or Services will meet your requirements. You acknowledge that the Bookability.io Software and Services may not be free from fault, interruption or external intrusion.
To the extent permitted by law, all express or implied representations, conditions, warranties, guarantees or other provisions that are not contained in this Agreement (whether based in legislation, the common law or otherwise) are excluded, including any representations, conditions, warranties or guarantees as to acceptable quality, fitness for purpose or timeliness.
If any condition, warranty, guarantee or other provision is implied or imposed in relation to the Agreement (whether based in legislation, the common law or otherwise) and cannot be excluded (a Non-Excludable Term), and we are able to limit your remedy for a breach of a Non-Excludable Term, then our liability for a breach of a Non-Excludable Term is limited to (at our option):
Subject to our obligations under the Non-Excludable Terms, and to the maximum extent permitted by law, we are not liable to you in tort, contract or otherwise for any loss of profits, data, goodwill, pure economic loss, or expectation loss, or other indirect, consequential, special, punitive or exemplary loss or damage, even if such loss or damage was reasonably foreseeable, arose naturally or was contemplated by the parties.
If, notwithstanding the preceding provisions of this clause, we are liable to you in relation to the Services or the Agreement, our liability is limited to a sum equal to the total amount paid by you under the Agreement in the period 12 months prior to the date of the liability arising.
Notwithstanding any other provision of the Agreement, you are liable to us, our affiliates and licensors (including each of their directors, employees, agents, and representatives) for and indemnify us against any loss, damage, claim, proceeding and cost (including all legal costs on an indemnity basis), including as a result of a third party claim against Bookability.io, arising out of:
Each party’s liability to the other party under the Agreement (including without limitation under an indemnity), will be reduced to the extent that such liability was caused by the other party, its employees, subcontractors and authorised representatives or a related body corporate (as defined in the Corporations Act 2001) of that other party.
You acknowledge that the design, specification and content of the Bookability.io Software, the terms upon which the Bookability.io Software and Services are being supplied and all pricing and product information provided by us (except to the extent such information is publicly available) constitutes commercially sensitive and confidential information of Bookability.io.
You may use our confidential information only in connection with and as permitted by this Agreement and must take reasonable measures to avoid disclosure, dissemination or unauthorised use of our confidential information. You agree not to disclose any information provided by Bookability.io that is designated as confidential or you should know is confidential to any third party without our prior written consent, unless you are legally compelled to do so, and provided that, where practicable you first provide notice to Bookability.io.
All notices required to be given pursuant to this Agreement must be given in writing in accordance with this clause.
We may provide any notice to you under this Agreement by:
Notices we provide by posting on our website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with Your Account when we send the email, whether or not you actually receive the email.
We may update the email address for notices to us by posting a notice on our website.
You may provide us notice under this Agreement by email to subscriptions@Bookability.io.com.
We may amend this Agreement at any time by posting a revised version of the Agreement on our website or by notice to you in accordance with the notice provisions. It is your responsibility to check the Bookability.io website regularly for any amendments to this Agreement. The amended terms will become effective on the date they are posted on our website on otherwise in accordance with the notice provisions. By continuing to use the Services after the effective date of any amendment to this Agreement, you agree to be bound by the amended terms.
Notwithstanding any other clause of this Agreement, neither party will be liable to the other party for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond that party’s reasonable control, including acts of God, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, embargos, riots, acts or orders of government, acts of terrorism or war (Force Majeure Event).
Each party’s obligations to the other party will be suspended to the extent of the Force Majeure Event. If a Force Majeure Event prevents a party from discharging its obligations under this Agreement for a period exceeding 60 days, the other party may terminate this Agreement by providing 30 days written notice.
This Agreement contains the entire agreement and understanding between the parties with respect to its subject matter. Each party acknowledges that it has not relied on any previous negotiations or representations (express or implied) except as set out in this Agreement. All prior negotiations or representations are excluded to the maximum extent permitted by law.
Either party may assign or deal with their right under this Agreement only with the other party’s written consent, which must not be unreasonably withheld.
If any part of this Agreement is held to be invalid or unenforceable, then the invalid or unenforceable section will be severed and the remainder of this Agreement will remain in full force and effect.
The failure by a party to enforce any provision of this Agreement will not constitute a continuing waiver of that provision or a waiver of any other provision, unless expressly provided in writing by an authorised representative of that party.
All clauses which are either expressly or by implication intended to survive termination will continue to apply after termination including without limitation, Third Party Content, Charges, Intellectual Property Rights, Liability and Indemnity and Confidentiality.
This Agreement is governed by the laws of New South Wales, Australia and both parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales.
In this Agreement, unless the context otherwise requires:
"Activation Date" means the date you give us your credit card details and become liable for the applicable Service Charges and Usage Charges.
"Commencement Date" means the date when you accept the terms and conditions of this Agreement or, if earlier when you start using the Services.
"Distribution Channel" means any distributor in the business of selling or promoting tours or activities and listed on the Bookability.io website from time to time.
"Distribution Services" means the services through which Bookability.io provides your selected Distribution Channels with access to your inventory.
"Due Date" means each monthly anniversary of the Activation Date, unless your Activation Date falls on the 28th to the 31st of a calendar month, in which case your anniversary will be the last day of each subsequent month.
"GST" means any applicable goods and services tax or any similar tax.
"Minimum Period" means a period of 12 months.
"Bookability.io" ("we", "us" or "our") means Bookability.io and includes Bookability.io employees, contractors and any related bodies corporate.
"Service Charges" means the monthly fees payable in respect of the Services.
"Services" means the Services provided by Bookability.io to you, which may include but is not limited to access to the Bookability.io Software and Distribution Services.
"Usage Charges" means any usage charges applicable to the Services and calculated on a monthly basis, including but not limited to any fees for messages received or sent using our SMS application or fees for processing online bookings placed through the Bookability.io Software in excess of any applicable online booking allowance.
"Your Account" means the online Bookability.io account you create to access the Bookability.io Software and store Your Content.
"Your Content" means any software, data, text, audio, video, images or other materials uploaded onto the Bookability.io Software using Your Account, or otherwise processed, used or stored in connection with Your Account.