|
SURPASS BOOKING ENGINE™ USE AGREEMENT
This agreement (the “Agreement”) describes
the license terms and standards of use of
the SURPASS BOOKING ENGINE.
The SURPASS BOOKING ENGINE is
a highly flexible, feature rich, software
system which is integrated into the websites
of accommodation providers and other users
to allow guests to book accommodations,
tours and other events in a very effective,
user friendly manner which surpasses
competitive products in ease of
installation, ease of use, performance and
marketing effectiveness.
The SURPASS BOOKING ENGINE was
developed by SURPASS BOOKING SYSTEMS
Pty Ltd, ACN 137 262 607, PO Box 614 Port
Douglas, Queensland 4877, Australia
("Surpass"). Surpass owns all rights to the
SURPASS BOOKING ENGINE,
including its trademark and trade dress, and
licenses its use in accordance with this
Agreement.
You are the manager, owner or authorized
representative (“You”) of an accommodation
property or other entity (“User”) who
desires to have the User use the
SURPASS BOOKING ENGINE for online
booking services through the User’s existing
website (the “Service”).
This Agreement is the entire agreement
between Surpass and the User, with respect
to the Service.
The Service starts when SURPASS
or its authorized webmaster integrates the
SURPASS BOOKING ENGINE into
the User’s website and demonstrates to User
that the Service is fully functional . This
Agreement becomes effective when You order
the Service.
By ordering the Service, You (1) acknowledge
that You are legally authorized to enter
into this Agreement on behalf of the User;
(2) acknowledge that Surpass will
immediately expend effort to schedule you
for access to the Service; and (3) You have
read and understand that the User is bound
by these terms and conditions and all
subsequent amendments to this Agreement
posted on the SURPASS website
(“Website”). SURPASS reserves
the right to amend the terms and conditions
of this Agreement at any time. Such
amendments shall become effective
immediately upon being posted on the
Website. The continued use of the Service
after amendments are posted constitutes an
acknowledgement and acceptance of the
Agreement as amended. If the User does not
agree with such amendments, the User must
immediately cease using the Service and
notify SURPASS of the User’s
desire to terminate Use of the Service.
1.0 LICENSE TO USE THE SERVICE
SURPASS hereby grants User a
non-exclusive, non-transferable right to Use
the Service for the limited purpose of
allowing the User’s guests to book
accommodations, tours, dinner reservations,
theatre events and other travel and
entertainment as described on Surpass’
website, for the term of this Agreement (the
“License”). The term “Use” shall mean
utilizing the SURPASS BOOKING ENGINE
to process online accommodation requests,
maintain an inventory database, provide
marketing communications and produce
management reports.
2.0 LICENSE RESTRICTIONS
User may not resell, rent, lease or loan the
Service or any part thereof. Furthermore,
the User hereby agrees not to copy any logo,
documentation, design or any other
intellectual property from the SURPASS
Website or SURPASS BOOKING ENGINE
documentation and will not create any
derivative works based on such elements.
3.0 USER’S RESPONSIBILITIES
To Use the Service, the User must provide
(1) all equipment necessary for its own
website and related Internet connection and
(2) pay any fees related with such
connection. Surpass is not responsible for
User’s connections to the Internet or lack
thereof or User’s Internet Service
Provider’s connections to the SURPASS
website or lack thereof.
The User shall have sole responsibility for
all information entered into its
SURPASS BOOKING ENGINE database,
including but not limited to rates, room
types, property information, services
provided, tour entry details and the like.
The User must ensure that it’s input into
the SURPASS BOOKING ENGINE
database:
(a) is not misleading or deceptive;
(b) does not infringe the Intellectual
Property Rights of any person;
(c) is not obscene, offensive, defamatory,
personally offensive or in any way
unsuitable to persons under the age of
eighteen (18) years;
(d) does not comprise and cannot be used for
any activity of an illegal, fraudulent or
defamatory nature; and
(e) otherwise complies with all applicable
laws.
The User shall:
(a) honor all bookings made at the rates
User enters in the SURPASS BOOKING
ENGINE booking engine software
database;
(b) have sole responsibility for receiving
payments for accommodation and tour bookings
per User’s normal payment terms and
conditions;
(c) only use the data or information
provided to User by SURPASS BOOKING
ENGINE for the sole purpose of this
Agreement;
(d) ensure that the log-in user name and
password provided to User by SURPASS
BOOKING ENGINE shall remain
confidential and shall not be published, or
made available, to any third party; and
(e) ensure that the log-in user name and
password is changed each time that an
employee with knowledge of these ceases
employment with User’s business;
4.0 SURPASS’ RESPONSIBILITIES
SURPASSs’ sole responsibility
is to use its best efforts to allow the User
to have continuous and secure availability
to the Service. Accordingly, SURPASS
shall host, maintain and operate the
SURPASS BOOKING ENGINE on computer
servers with sufficient system capacity to
enable reasonable storage capacity for all
its Users and provide access to the Service
on a 24 hour per day x 7 day per week x 365
day per year basis, except for scheduled
downtime for which SURPASS
shall notify its subscribers at least 48
hours in advance. SURPASS
shall provide each User with controlled
access to its SURPASS database
and control panel to allow it to Use the
Service as described in this Agreement.
Surpass shall be responsible for the
security of the contents of any User’s
database and utilize all necessary and
available means to prevent loss or
compromise of such contents, and shall
ensure that the User’s authorized designee
has secured access to the highest reasonable
extent possible for owner accessible secured
data storage facilities. SURPASS
is not and can not be responsible for the
loss or compromise of any data during
transmission to or from the User’s website
or to and from the Surpass servers.
5.0 FEES
Monthly license fees for the Service vary in
accordance to the Service plan subscribed to
by the User and as described on the
SURPASS Website. Said fees are
inclusive of GST and are due and payable in
advance of receiving the Service for the
subsequent calendar month. Monthly payments
begin when the Service starts and shall be
charged on approximately the same day each
calendar month. Monthly license fees are
payable by credit card only. Monthly license
fees may be paid on an annual basis by
either credit card or debit card. Surpass
shall provide the User with a tax invoice
for payments made on a recurring basis as
requested by the User.
6.0 SERVICE SUSPENSION
In the event the User fails to pay the
monthly license fee when due and such
failure continues for ten (10) days or more
after it is notified thereof, SURPASS
may thereupon immediately suspend the
Service without further notice. Reconnection
of Service thereafter shall require a
$200.00 reconnection fee payable to
SURPASS.
7.0 TECHNICAL SUPPORT
User may request installation of the Service
from SURPASS or from a
SURPASS authorized webmaster.
Installation of the Service from a
SURPASS authorized webmaster shall
be governed by the agreement between such
webmaster and the User. In the event
SURPASS installs the Service, User
shall fully cooperate with SURPASS
and authorize and enable SURPASS
to access User’s website server, including
providing applicable usernames and
passwords, for the purpose of effecting
necessary coding changes to integrate the
SURPASS BOOKING ENGINE and
initiate the Service. If the necessary
information is not provided within 24 hours
prior to the scheduled installation date,
the User hereby authorizes its third party
webmaster or software contractor to provide
Surpass with such information.
After the installation of the Service,
SURPASS shall provide a helpline
for User technical support as described on
its Website.
8.0 TERM AND TERMINATION
The term of this Agreement shall be
indefinite from the date the Service is
ordered. Either party may terminate this
Agreement upon thirty (30) days written
notice to the other party for any reason
whatsoever. In the event that either User or
SURPASS ceases to conduct
business in its normal course, or files for
bankruptcy, this Agreement shall terminate
upon notice to the party ceasing to conduct
business in its normal course.
9.0 CONFIDENTIAL AND PROPRIETARY
INFORMATION
All specifications, plans, coding,
descriptions, performance data and other
data related to the SURPASS BOOKING
ENGINE shall be deemed confidential
and proprietary information (“Confidential
Information”), excluding information
generally known to the public.
The User hereby agrees to limit the access
to Confidential Information to employees and
contractors with a need to know the
Confidential Information; to safeguard the
Confidential Information with a reasonable
degree of care; to not disclose Confidential
Information to third parties without the
explicit permission of SURPASS;
and to return all Confidential Information
to SURPASS upon expiration of
this Agreement. SURPASS shall
have the right to terminate this Agreement
upon violation of this Confidentiality
provision.
Likewise, SURPASS shall not
disclose User’s booking information or data
or any other information deemed confidential
by the User. Other than disclosure to its
contractors with a need to know, Surpass
shall not disclose control panel details,
user names, or passwords to the
SURPASS BOOKING ENGINE to anyone.
All software, descriptions and documentation
comprising the SURPASS BOOKING ENGINE
is copyrighted.
10.0 DISCLAIMER
The SURPASS BOOKING ENGINE may
not meet all the requirements of the User
and SURPASS makes no
representations to the contrary. Except as
expressly provided by this Agreement,
SURPASS makes no warranty for
fitness of purpose, merchantability of the
Service, or any other warranty of any sort,
whether express or implied. SURPASS
is not responsible for interruption of
access to the SURPASS BOOKING ENGINE
database caused by events beyond the control
of SURPASS.
11.0 LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO
EVENT SHALL SURPASS OR ANY OF ITS DIRECTORS,
SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS
OR AFFILIATES BE LIABLE FOR (i) SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, OR (ii) ANY DAMAGES RESULTING FROM
LOSS OF DATA, FRUSTRATION OF ECONOMIC OR
BUSINESS EXPECTATIONS, LOSS OF PROFITS,
REVENUES OR USE ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE USE OR
PERFORMANCE OF ANY PRODUCTS OR SERVICES SOLD
OR PROVIDED HEREUNDER, REGARDLESS OF WHETHER
USER HAS BEEN NOTIFIED IN ADVANCE OF SUCH
DAMAGES OR WHETHER SUCH DAMAGES WERE
FORESEEABLE. IN NO EVENT SHALL SURPASS’
LIABILITY TO USER FOR ANY DAMAGES IN
CONTRACT OR TORT EXCEED THE TOTAL AMOUNT
PAID BY THE USER FOR THE PARTICULAR PRODUCT
OR SERVICE THAT CAUSES SAID DAMAGES DURING A
PERIOD OF THREE MONTHS PRIOR TO THE USER’S
DISCOVERY OF SAID DAMAGES. THE REMEDIES
PROVIDED FOR IN THIS AGREEMENT ARE THE
USER’S SOLE AND EXCLUSIVE REMEDIES.
12.0 INDEMNIFICATION
Surpass agrees to indemnify and hold User
harmless from any claims that the
SURPASS BOOKING ENGINE, or any part
thereof, infringes the copyrights,
trademarks, trade dress, patents, or any
other intellectual property rights of any
other party. Upon receipt of any such claim,
User will immediately notify Surpass thereof
and allow SURPASS to exert the
exclusive defense against any such claims or
allegations, at SURPASS’
discretion.
13.0 MISCELLANEOUS
This Agreement has been executed in and
shall be construed in accordance with the
laws of the State of Queensland.
If any provision of this Agreement shall be
deemed invalid or unenforceable by a court
of competent jurisdiction, such invalidity
or unenforceability shall not invalidate or
render unenforceable the remaining
provisions of this Agreement.
Neither party hereto shall have the right to
assign this Agreement or any obligations or
rights hereunder to any third party without
the prior written consent of the other
party. Any attempt to make said assignment
without the written permission of the other
party shall be void.
The Parties shall abide by the Privacy Act
of 1968. Furthermore, SURPASS
shall abide by its privacy policy as posted
on its Website.
This Agreement has been duly executed by the
acts of the parties as provided herein. |
|
