Integrated Property Manager Terms & Conditions

 

AGREEMENT FOR PROPERTY MANAGERS

 

Last updated: 29 June 2018

 

This Agreement (“Agreement”) is entered into by and between Stayz Pty Ltd ABN 41 102 711 599 of Level 18, 100 William Street, Woolloomooloo NSW 2011 (the “Company”, or together with its Affiliated Entities, “HomeAway”) and the property manager or other person (“Advertiser”) named on the purchase order attached hereto (“PO”), effective as of date set out in the PO (the “Effective Date”).

 

RECITALS

 

  1. The Company, and certain of its Affiliated Entities, advertise vacation rental properties’ real-time inventory and operate the HomeAway Network.

 

  1. Advertiser manages and distributes vacation rental properties and desires to advertise the vacation rental properties it manages on the HomeAway Network, subject to the terms and conditions of this Agreement.

 

Now, therefore, in exchange for valuable consideration, the sufficiency of which is acknowledged, the parties agree as follows:

 

AGREEMENT

 

  1. Definitions.  The following terms shall have the meanings set forth below:

 

“Advertiser Software” means the secure technology platform and software used by the Advertiser in connection with the management of the Designated Properties.

 

“Affiliated Entity” means with respect to any entity, any other entity which directly or indirectly controls, is controlled by or is under common control with such entity.

 

Listing Agreement” means this Agreement together with the PO and the Terms.

 

“Booking Data Access” refers to Company’s right to access all of Advertiser’s reservation and inquiry data as pulled from the Advertiser Software via the Integration.

 

“Confidential Information” means any non-public data, information, intellectual property or other materials provided by one party to the other party that is proprietary to the other party or its licensors or that would reasonably be deemed confidential under the circumstances.

 

“Designated Properties” means those properties designated by the Advertiser under this Agreement to be advertised on the HomeAway Network, which includes those properties advertised as of the Effective Date on the HomeAway Network.

 

“Distribution” shall mean the advertisement of the Designated Properties on websites operated by third parties who have distribution agreements with the Company.

 

“HomeAway Network” means the websites owned and operated by the Company or an Affiliated Entity of the Company, as may be further specified in the PO and updated by the Company from time to time.

 

“HomeAway Platform” means HomeAway's operating system on which the Company offers services, which may include the capability for online booking and payments through HomeAway Network websites, to Advertiser and other property managers and owners.

 

“Integration” means the technology integration between the HomeAway Platform and the Advertiser Software which enables the real time display of the Listings as well as the ability for travellers to inquire about bookings and other functionality as described herein and as may be further described in the PO.

 

Listing” means an advertisement of a Designated Property on the HomeAway Network.

 

“Online Booking” means reservation of a property by a traveller and payment for the rental of the property via the Integration either on the HomeAway Network or a website operated by Advertiser, as applicable.

 

“Payment Card Industry Security Standards Council” is a global forum responsible for the Payment Card Industry security standards.

 

“PCI Data Security Standards” means all rules, regulations, standards, or guidelines adopted or required by the payment brands, including but not limited to Visa, Master Card, or the Payment Card Industry Security Standards Council.

 

“PPB” means the Company`s pay-per-booking payment model where Advertiser may advertise its properties on a commission basis, as further described herein, and without paying any up front or subscription fee.

 

“Services” means the services, such as the advertisements of Listings on a PPB basis and Integration services, provided by the Company to the Advertiser under this Agreement, as defined herein and on the PO.

 

“Terms” terms and conditions and privacy policies as posted on the respective HomeAway Network websites on which the Advertiser’s Listings appear, any and all of which may be updated from time to time by the Company.  For purposes of clarification, the Terms and Conditions and Privacy Policy applicable with respect to any Listing shall be the Terms and Conditions and Privacy Policy of the relevant HomeAway Network website on which such Listing appears. For example, a Listing on www.homeaway.com shall be subject to the Terms and Conditions and Privacy Policy posted on www.homeaway.com.

 

  1. Services. Subject to the Terms and Advertiser’s compliance with the Terms, the, Company agrees to provide the Services described herein and in the PO and Advertiser agrees to compensate the Company for such Services, as described herein and in the PO.

 

  1. Distribution.  Unless otherwise agreed in writing by the parties, the Company shall have the right to further distribute the Listings on any or all Distributions. The Company may require the Advertiser to opt-in to any or all Distributions.  Each Distribution shall be subject to additional booking commissions and to the applicable terms and conditions of the distributor operating the Distribution and/or such other term and conditions required by the Company. If the Advertiser does not agree to any or all Distributions and the terms and conditions applicable to such Distribution(s), Advertiser agrees to opt-out by exercising any opt-out mechanism available or to otherwise promptly notify the Company in writing that it desires to opt-out of the Distribution(s), with such notice to identify the Distribution(s) from which Advertiser seeks to opt-out. The Company shall make commercially reasonable efforts to implement the Advertiser's opt-out of the relevant Distribution(s).

 

  1. Integration, Development & Intellectual Property. If the Company performs, or determines it is necessary to perform, any development of Integration-related services (the “Integration Development”) to enable any provision of the Services, Advertiser agrees to promptly provide all assistance necessary to the Company for such Integration Development as provided below and as may be further requested by the Company. All Integration Development and related services shall be subject to the following terms and conditions, together with any other terms provided in a PO or as the parties otherwise agree in writing.

 

  1. All intellectual property and intellectual property rights that are created or otherwise result from any Integration development or related services shall be the sole and exclusive property of the Company. Advertiser hereby grants a non-exclusive, perpetual, worldwide and royalty-free license to the Company to access and use the Advertiser Software and any other intellectual property and hardware belonging to or used by Advertiser, as may be necessary to perform the Integration Development or related services and to allow for the performance of the Integration and Services during the term of this Agreement. Advertiser represents and warrants that Advertiser has all rights necessary to grant such license and that the use by HomeAway of the license in accordance with this Agreement will not infringe the rights of any third party.

     

  2. The Integration shall enable Listing content to be sent and received through a Company API or XML exchange, as designated by the Company (the “HomeAway API”), which will reformat such Content into a format consistent with the way similar content is displayed on the HomeAway Network.

     

  3. Advertiser shall not create or manage listings manually through its HomeAway Network account. All listings content, rates, and calendars shall be synchronized and integrated through the HomeAway API listing integration. Failure to comply with these requirements entitles Company to delist any and all manual listings from the Advertiser or enable rates and calendar feeds if blocked via any method on an integrated listing.

     

  4. The parties will cooperate to develop and implement a connection from the Advertiser Software and/or websites to the HomeAway API to facilitate the transfer of the Listing content, to enable travellers to inquire about a property, to book a property (if such functionality is available) or perform such other functionality as provided in the PO or otherwise agreed to in writing by the parties.

     

  5. HomeAway shall be responsible for maintaining the HomeAway API. 

     

  6. Advertiser shall be responsible for maintaining and hosting its websites and the software to ensure they function properly with the HomeAway API as described in this Agreement.  Advertiser shall further be responsible for establishing, implementing and maintaining security measures in the Advertiser Software that will ensure that the Listing content and all other content and data submitted through the HomeAway API is secure. 

     

  7. Condition Precedent. Notwithstanding any other provision of the Listing Agreement, clauses 2 (Services), 15 (Commissions of PPB and EDN Listings), 16 (Payments) and 23(d) (Complete Agreement) are of no force or effect unless and until the Integration Development is complete and HomeAway can therefore provide the Services, as determined by HomeAway in its sole discretion 

 

  1. Designated Properties. The Designated Properties to be Advertised shall be designated by Advertiser in writing or by uploading the property information via software, as instructed by the Company, provided that the Company may determine not to advertise any property submitted as a Designated Property if the Company determines in its sole discretion that the proposed advertisement for such property does not meet the Terms or that such property is already advertised on the HomeAway Network.

 

  1. Reviews. Travellers may review the property they have stayed in and Advertisers may rate travellers in accordance with the Company’s content guidelines. If Advertiser distributes traveller reviews on the HomeAway Network through Integration (each an “Integrated Review”),  Advertiser represents that it is integrating all reviews for a particular property and that it has a review moderation policy that is at least as restrictive as Company’s then-current Content Guidelines posted at https://www.homeaway.com.au/info/about-us/legal/terms-conditions/traveller-review-guidelines such that the Integrated Reviews would meet the Company’s Content Guidelines. Advertiser agrees and affirms that it is solely responsible for any and all Integrated Reviews just as it would be responsible for any Listing or other contributed content as further outlined in the applicable Terms. Integrated Reviews may be removed by the Company for any reason at any time in its sole discretion and shall be designated differently than those reviews received through the HomeAway Network.

 

  1. Terms. The Terms on each HomeAway Network website on which Listings appear are incorporated in and made a part of this Agreement and Advertiser agrees to such Terms and acknowledges that the Terms on each website of the HomeAway Network are subject to change from time to time. The Company reserves the right to revise, delete or add terms applicable to Advertiser’s Listings by providing written notice to Advertiser of such changes.  Should the Company, in its discretion, determine that any of the Terms have been breached, the Company reserves the right to suspend or remove any Listing and/or terminate this Agreement.

 

  1. Right to Edit Listings. The Company desires to include only rich content on the HomeAway Network, free of duplicate content for search-engine-optimisation purposes. Therefore, Advertiser commits to comply with Company’s applicable content guidelines posted at https://www.homeaway.com.au/info/about-us/legal/terms-conditions/traveller-review-guidelines. Advertiser understands and affirms that the Company has the right, but not the obligation, to edit the content contained in a Listing to improve the viewing experience for each traveller searching for a property on the HomeAway Network. Should the Company elect to edit a Listing’s content, it will do so using and relying on information provided by Advertiser and/or confirmed by Advertiser following review of the edited Listings. Advertiser agrees that it shall periodically review all of its Listings for accuracy and shall ultimately be responsible for the accuracy of the content used to describe each of its properties on the HomeAway Network. Advertiser agrees to promptly notify the Company in writing if it believes any of the content is not accurate, might be misleading or would otherwise violate any of the Terms.  Advertiser acknowledges that Advertiser is solely responsible at all times for the content in each Listing.

 

  1. Security Checks.  Advertiser agrees that it is solely responsible for the prevention of fraud, phishing or any other internet or other crime with respect to any Listing.  Advertiser shall make all commercially reasonable checks on each owner or property manager, and each Designated Property to be displayed in a Listing to ensure against any such fraudulent activity, phishing or other internet or other crime, including, without limitation, that said property exists and that the Designated Property is as described in the Listing. 

 

  1. Links. Advertiser agrees not to include any link to the Advertiser’s personal website on the HomeAway Network.

 

  1. Sort Order, Listing Appearance and Removal. HomeAway cannot guarantee that any Listing will appear in any specific order in search results on a Site. Search order will fluctuate based on a variety of factors such as search parameters, listing quality, how frequently a calendar is updated, traveller preferences, Advertiser’s response times, booking history, online booking capability and other factors that HomeAway may deem important to the user experience from time to time (“Best Match”). HomeAway reserves the right to apply various search algorithms or to use methods to optimize Best Match results for particular travellers’ experiences and the overall marketplace. Listings distributed on third party sites are not guaranteed to display on such third party site in any particular order or at all. Search results may appear different on HomeAway’s mobile application than they appear on its website. To optimize the search experience for both Owners and travellers and improve the Best Match process, HomeAway retains the right to run occasional tests that will be limited in duration but may alter how we display Listings. While the Company anticipates that PPB Listings will generally only be removed if any of the Terms are violated, there is no guarantee that any PPB Listing shall appear in any particular order, manner or at all.

 

  1. PCI Compliance. With respect to the transmission, processing and storage of credit card information that Advertiser receives from time to time from the Company and travellers, whether or not such information is transmitted via any Integration, the Advertiser Software or otherwise, Advertiser agrees to operate in compliance with PCI Data Security Standards, including, without limitation, those relating to privacy, data security, and the safeguarding, disclosure, and handling of payment information. In the event Advertiser breaches or becomes aware of a breach of the PCI Security Standards relating to any Designated Property, any user of the HomeAway Network or otherwise in relation to the Services, Advertiser shall notify Company immediately and shall immediately take such actions as necessary to rectify the breach.  Advertiser understands that failure to comply with the PCI Security Standards, may result in assessments, fines, and/or penalties by the payment brands, and Customer agrees to indemnify and to reimburse Company immediately for any such assessment, fine, or penalty imposed on Company as a result of any breach of Advertiser or otherwise relating to a Designated Property.

 

  1. Confidential Information & Personal Data

 

  1. The parties agree that each party may only use the Confidential Information of the other party solely in connection with the performance of its obligations under this Agreement and shall retain such Confidential Information in confidence and not disclose it to any third party, except as authorised under the Terms, without such other party’s prior written consent.  All Confidential Information of a party shall remain the sole property of such party or such party’s licensor’s, as applicable.  Each party shall hold the Confidential Information of the other party in confidence during the term of this Agreement and for one (1) year following expiration.

 

  1. Each party that receives, stores or otherwise has access to, any personal data of any traveller or other person who submitted such data in connection with the Services, then such party  agrees to the following terms: (1) Such party shall process the personal data in compliance with all applicable laws, regulations or industry codes, (2) Such party will take appropriate technical and organisational measures against the unauthorised or unlawful disclosure, use and processing of personal data and against loss, (3) Such party shall process the personal data only to the extent, and in such a manner, as is necessary for the purposes of the Services and shall not process for any other purpose, (4) Such party shall ensure that access to the personal data is limited to those employees who need access to meet Company`s obligations under this Agreement.

 

  1. Traveller Service Fee. HomeAway charges a service fee payable by travellers who book a property on the Site via the Site checkout. The service fee covers the use of the Site, including (but not limited to) such features as 24/7 support, and is calculated as a percentage of the total reservation amount (which may or may not include amounts charged by the Advertiser or collected by HomeAway such as additional fees, taxes, and damage deposits). Depending on the laws of the jurisdiction of the traveller and/or Advertiser, GST or any other equivalent indirect taxes that are applicable under local law (“Taxes”) may be charged on top of the service fee and generally the applicable rate will be based on the traveller’s declared location. The specific service fee, plus any Taxes charged will be displayed to the traveller at the time of booking. The service fee plus Taxes will be charged after the Advertiser accepts the booking made by the traveller. Advertisers, on behalf of themselves and the property owner(s) for their listings, agree not to encourage or advise a traveller to avoid or circumvent the service fee charged by HomeAway and must not procure or permit the service fee to be reduced by any means.

 

  1. Commissions for PPB and EDN Listings. 

 

  1. Advertiser will be charged a commission by the Company equal to a percentage of the total reservation amount for each booking of a Designated Property featured in a PPB Listing or a Listing distributed on the Expanded Distribution Network (“EDN”) (each a “Commission”). The Commission rate will be the percentage(s) set forth in the PO or on the EDN opt-in page.  The Commission rates available to Advertiser shall be determined by the Company and the applicable third-party network, with the Listings with a higher Commission rate generally receiving more exposure than those with a lower Commission rate. 

 

  1. If Advertiser uses payment processing services on the HomeAway Network for bookings, the Commission includes applicable payment processing fees related to Online Bookings. 

 

  1. The Company may change the Commission rate and terms of the Commissions to be charged to Advertiser for the booking of properties at any time by providing notice to the Advertiser.

 

  1. Commissions shall be paid on all completed stays resulting from leads generated by or on the HomeAway Network, regardless of how the actual booking was made, provided the booking occurs within thirty (30) days of the inquiry or other lead generated by the HomeAway Network.  This means that Commissions must be paid for stays in any Designated Property in a Listing whether the booking was made through Online Booking or through another source, such as by phone or over e-mail, provided that the lead originated on a HomeAway Network site within the thirty (30) day period immediately preceding the booking date. 

 

  1. Should a traveller who found a PPB listing on the HomeAway Network contact Advertiser about booking a Designated Property advertised in a PPB Listing and should that Designated Property be unavailable, if Advertiser completes a reservation with the traveller on another property, regardless of whether or not the available property is advertised on the HomeAway Network, the Company shall be entitled to receive a Commission on the booking made for the alternate property, provided such booking is made within the thirty (30) day period immediately following initial contact.

 

  1. The Company shall be entitled to conclude that a Commissionable stay or booking, as described above has been made, and to charge a Commission on such stay or booking, if the Company reasonably determines it has sufficient evidence of a Commissionable booking or stay.  Reasonable evidence may include, without limitation, evidence of an inquiry made through the HomeAway Network combined with other related evidence of booking activity (such as booking activity indicated on reports (as described below) reviewed by the Company).  For purposes of clarification, should the Company have reasonable evidence of a booking that was generated by the HomeAway Network, the Company shall be entitled to assume a stay resulted from such Booking, unless Advertiser provides reasonable evidence to the contrary.  For avoidance of doubt, Commissions shall be due on all Online Bookings of Designated Properties on PPB Listings regardless of the original source of the initial lead or contact.

 

  1. Payments.

 

The fees and amounts payable for each of the Services you agree to purchase are set forth in the Purchase Order. Payments are non-refundable.

 

  1. The Company will issue an invoice for the Commission due to Company with respect to all Bookings of Designated Properties during the previous month, as based on check out dates and as set out in the report generated by Company in accordance with the Listing Agreement. Advertiser authorizes Company to charge the credit card of Advertiser on record with the Company for each Commission payment due. Your invoice will be available for review on your dashboard. Advertiser has 60 days from the date of the invoice to notify Company in case of discrepancies, after which the invoice shall be deemed accepted.

 

  1. Advertiser shall provide the credit card information or other payment method required to authorize payment of the fees for the Services within twenty-four (24) hours of signing this Agreement.  Should the Advertiser elect to pay the fees by credit card, the Advertiser hereby irrevocably authorizes the Company to charge Advertiser’s credit card for all fees due hereunder, as they become due on or following the Effective Date, and including, without limitation, any and all recurring fees due under this Agreement.

 

  1. Payment shall be in a currency accepted by the Company, as set forth on the PO or otherwise communicated by the Company to Advertiser.

 

  1. In its sole discretion, Company may agree to accept installment payments for any or all fees payable in accordance with the terms on the PO.

 

  1. PPB Listings shall run for a term equal to the term of this Agreement, unless the Company otherwise determines to suspend or terminate such PPB Listing.

 

  1. Company shall have the right to immediately remove or suspend Advertiser’s listings for failure to pay amounts owed on any due date. Advertiser agrees to pay the total fees as set forth in the PO. Removal or suspension of Listings due to late payments shall not relieve Advertiser of its obligation to pay the total fees set forth in the PO.

 

  1. No substitution or changes of any Designated Property in a Listing will be allowed unless terms for any such substation or changes are set forth in any PO.

 

  1.  Reporting & Audit Rights.

 

  1. Performance & Activity Reports. Following any written request from the Company to Advertiser, Advertiser shall provide monthly reports, based on check-in dates, as described below (the “Performance & Activity Reports”) to the Company within five (5) business days of the end of the month, which shall include data on the following metrics:

 

  1. Performance metrics by channel of communication with travellers, including conversion of inquiries to bookings for email, phone, Online Booking or any other channel;

 

  1. Aggregate economics for booking of the properties on the Property List, including the number of bookings, reservation rates, fees, etc;

 

  1. Activity metrics, including key metrics relating to all of the properties Advertiser manages (including the properties on the Property List and all other properties), such as calendar availability, inquiries by channel of communication by travellers (including email, phone, online booking and any other channel) and any other metrics requested by The Company; and

 

  1. For PPB Listings, the Advertiser agrees to provide such additional reporting as requested by the Company, which may include daily reports relating to the booking of all Designated Properties, whether such bookings were made via Online Booking or otherwise.  Advertiser agrees to cause the provider(s) of the Advertiser Software, as necessary, to provide such reporting if requested by the Company.

 

  1. Rights to Audit. The Company shall be permitted to conduct an audit, no more frequently than every six (6) months, with respect to the Advertiser’s obligations to pay Commissions and provide Performance & Activity Reports under this Agreement, if the Company has grounds to suspect that there are errors or other discrepancies in the payment of Commissions or the Performance & Activity Reports provided under this Agreement. Advertiser shall provide The Company with all necessary co-operation, assistance, data, information, documents, files, papers, and access to its property management information books and records of accounts and information, both online and/or in hard copy, as applicable and as the Company may reasonably request for the purpose of verifying proper reporting and payment of Commissions. Audits will be conducted on business days during regular business hours. The Company shall bear the costs and expenses of the audit unless the audit results in a deviation of Commissions owed to the Company of more than five (5%) in which event Advertiser shall bear the costs and expenses of the audit and immediately pay the additional Commissions owed to the Company.

 

  1. Additional Tracking. In the future, the Company may create a PPB tracking product or service which would mitigate the need for a reoccurring audit.  If such product is developed and Advertiser’s Services include PPB Listings, Advertiser agrees to work with the Company to determine whether the product would be beneficial to both parties and, if so, migrate the Advertising Services to the new platform and execute a new agreement.

 

  1. Access to Advertiser’s systems.  Advertiser agrees to promptly (but no later than thirty (30) days after the Effective Date) obtain or grant all necessary consents to permit Company to receive automatic, live Booking Data Access to the Advertiser Software, Advertiser’s systems and Advertiser’s inventory for the purpose of determining payments owed for Services rendered.

 

  1. Data Protection

 

  1. Advertiser acknowledges and agrees that, in the course of this Agreement, Advertiser may receive or have access to personal information, as that term is defined in the Privacy Act 1988 (Cth) (“Personal Information”). Advertiser shall comply with the terms and conditions set forth in this Agreement in its collection, receipt, transmission, storage, disposal, use and disclosure of such Personal Information and shall be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Personal Information under its control or in its possession.

 

  1. Advertiser agrees and covenants to keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate.  Advertiser further agrees and covenants to use and disclose Personal Information solely for the purpose of fulfilling its obligations under this Agreement. Advertiser agrees and covenants that it will not disclose Personal Information to any person (other than qualified personnel for the purposes outlined in this Agreement) without Company’s prior written consent nor process the Personal Information in a manner inconsistent with or unnecessary for the purposes of this Agreement.

 

  1. Advertiser represents and warrants that its collection, access, use, storage, disposal and disclosure of Personal Information does and will comply with all applicable privacy and data protection laws, regulations and industry codes and Advertiser shall implement administrative, physical and technical safeguards to protect Personal Information that are no less rigorous than accepted industry practices. 

 

  1. Upon HomeAway’s request, Advertiser shall promptly and accurately complete a written information security questionnaire provided by HomeAway regarding Advertiser’s business practices and information technology environment in relation to all personal information being handled and/or services being provided pursuant to this Agreement. Advertiser shall fully cooperate with such inquiries.  At least once per year, Advertiser shall conduct site audits of the information technology and information security controls for all facilities used in complying with its obligations under this Agreement. In addition, upon HomeAway’s written request, Advertiser shall make available to HomeAway for review all of the following, as applicable:  Advertiser‘s latest Payment Card Industry (PCI) Compliance Report, WebTrust, Systrust, and Statement on Standards for Attestation Engagements (SSAE) No. 16 audit reports for Reporting on Controls at a Service Organization, any reports relating to its ISO/ICE 27001 certification and SafeHarbor certifications. HomeAway shall have the right to terminate this Agreement with immediate effect upon notice to Advertiser in the event that it determines Advertiser’s security controls are insufficient.

 

  1. At any time during the term of this Agreement at HomeAway’s request or upon the termination or expiration of this Agreement for any reason, Advertiser shall promptly return to HomeAway, or securely dispose of, all copies, whether in written, electronic or other form or media, of Personal Information in its possession and certify the same in writing to HomeAway.

 

  1. In the event of: (i) any act or omission that compromises either (a) the security, confidentiality or integrity of Personal Information or (b) the physical, technical, administrative or organizational safeguards put in place by Advertiser to prevent such compromise, (“Security Breach”) or (ii) any communication alleging a Security Breach, Advertiser shall notify HomeAway as soon as practicable, but no later than twenty-four (24) hours after Advertiser becomes aware.  Immediately following such notification, Advertiser shall work with HomeAway to investigate the Security Breach (including, without limitation: (i) assisting with any investigation; (ii) providing HomeAway with physical access to the facilities and operations affected; (iii) facilitating interviews with  Advertiser’s employees and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry standards or as otherwise required by HomeAway.)  Advertiser agrees to fully cooperate with HomeAway in HomeAway’s handling of the matter (including reimbursements for HomeAway’s reasonable related response costs) and further agrees to use best efforts to immediately remedy any Security Breach and prevent any further Security Breach at Advertiser’s expense in accordance with applicable privacy rights, laws, regulations and standards.  Advertiser agrees that it shall not inform any third party of any Security Breach reach without first obtaining HomeAway’s prior written consent. 

 

  1. Representations, Warranties and Covenants.

 

  1. Advertiser hereby represents, warrants and covenants that Advertiser is an agent for the property owners of the Designated Properties and that it holds any and all necessary contractual rights to advertise the Designated Properties on the HomeAway Network and to use of any material, information and data, including photographs, provided to Company under this Agreement.  Advertiser has all necessary rights and authorisations to book the Designated Properties and to contract with travellers for all of the offers and services provided in each Listing.

 

  1. Unless otherwise agreed to in writing by the Company, Advertiser agrees to reflect all booking and stay activity relating to the Designated Properties in the Advertiser Software and to cause all such activity to be maintained accurately and on a real-time basis.

 

  1. Advertiser further represents that the use, reproduction, transmission and/or republishing of such material, information or data, either in printed form or via the web, will not violate any law, rule, or regulation or violate or infringe upon the owners’ rights or the rights of any third party, including without limitation, such violations or infringements or misappropriation of any copyright, trade secret, trademark, or other proprietary right of any person or entity.

 

  1. Advertiser has obtained all necessary authorizations and consents from third parties (including individual owners) as may be required or appropriate to receive the Services and perform its obligations hereunder including Company’s right to view and use information provided to it via the Booking Data Access.

 

  1. Advertiser represents that the Designated Properties are not otherwise advertised on the HomeAway Network and that, on behalf of itself and the property owner, it will not permit any double bookings of the Designated Properties and will be responsible if such double bookings should occur.

 

  1. Advertiser shall not take any action which could reasonably be deemed disparaging to HomeAway or the HomeAway Network.

 

  1. Advertiser shall indemnify, defend, and hold the Company, its Affiliates Entities and their respective directors and officers harmless from any costs, including reasonable legal fees and expenses, losses, liabilities, judgments, claims, suits, proceedings, arbitrations or investigations that may be incurred by the Company, or any of its shareholders, officers, directors, employees or agents relating to or arising out of: (i) any breach of this Agreement, (ii) any phishing, fraud or other unauthorised booking or other activity related to any Designated Property, (iii) any payment the Company makes under its Book With Confidence Guarantee, Basic Rental Guarantee or similar guarantee to a third party relating to any Designated Property, (iv) the operation of the Advertiser’s business or the Advertiser Software, whether in relation to the Integration, the Services or otherwise and (v) any claim of intellectual property infringement relating to the Listing content or the Advertiser Software, unless such Advertiser Software is provided by the Company.

 

  1. Warranty Disclaimer & Limitation of Liability. 

 

  1. Except as expressly provided herein and subject at all times to sub-clause c. below, the Company makes no warranties, representations, covenants or guarantees with regard to the services or any distribution or integration, whether express or implied, arising by law or otherwise, including without limitation any implied warranty of merchantability or fitness for a particular purpose or any implied warranty arising out of course of performance, course of dealing or usage of trade.

 

  1. In no event will either party be liable for any consequential, indirect, incidental, punitive, or special damages, including without limitation, damages for loss of business profits, business interruption, loss of business information, and the like, arising out of this Agreement, even if such party has been advised of the possibility of such damages.

 

  1. Nothing in this Agreement affects any rights either party may have and which by law cannot be excluded, including under the Competition and Consumer Act 2010 (Cth) (including, without limitation, under the Australian Consumer Law, contained in Schedule 2 of that Act) and under State and Territory consumer protection legislation.

 

  1. Term and Termination

 

  1. Term. This Agreement shall have an initial term of twelve (12) months following the Effective Date, unless earlier terminated by either party by giving ninety (90) days prior notice or as set forth below. The term shall automatically renew for subsequent twelve (12) month terms until terminated as provided below.

 

  1. Termination for Breach. Upon breach of any obligation in this Agreement, the non-breaching party may notify the breaching party of the breach and the breaching party shall have thirty (30) days to cure such breach. Notwithstanding the foregoing, any breach of the Terms which the Company deems to be material or not capable of being cured, the Company shall have the right to remove Listings and/or terminate this Agreement immediately.  If the breach capable of being cured is not cured at the conclusion of the thirty (30)-day period, the non-breaching party may terminate this Agreement by notifying the breaching party and, subject to clause 21(c) below, both parties’ obligations shall cease.

 

  1. Effect of Termination.  Following any termination of this Agreement, all Listings shall be removed from the HomeAway Network.  However, any Commissions for bookings or reservations of such properties prior to the termination date shall be paid to the Company under this Agreement within thirty (30) days of termination.

 

  1. Transfer

 

Save as otherwise specifically set out in this Agreement, neither party may assign this Agreement in whole or in part, by merger, asset or share sale or transfer, or otherwise, without the prior written consent of the non-assigning party, except, in the case of Company, (i) in connection with a merger, consolidation, reorganisation or sale of all or substantially all of its assets, or (ii) to a party controlling, controlled by or under common control with Company (each a “Permitted Assignment”). 

 

  1. Miscellaneous.

 

  1. Amendments to this Agreement. The Company may revise any term of the Agreement at any time by posting an updated version to the web page: https://www.homeaway.com.au/info/about-us/legal/terms-conditions/integrated-property-manager. The Advertiser acknowledges and agrees that it must visit this page periodically to view the most current terms of the Agreement and that the most current terms are binding on the Advertiser.

 

  1. Independent Contractors. Company and Advertiser are independent contractors and nothing in the Terms is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. 

 

  1. Notices. Notices to either party may be made by email to the email address provided by the parties to one another and shall be effective one day after the email is sent.  Notwithstanding the foregoing, if Advertiser provides notice relating to any legal dispute or claim or relating to any alleged breach of this Agreement, Advertiser shall send a hard copy of the notice via courier to the address of the Company set forth above, specifying “Attention: Legal Department.”

 

  1. Complete Agreement. The Listing Agreement constitutes the entire agreement relating to the Advertiser’s Listings on the HomeAway Network.  In case of conflict between this Agreement and any of the other Terms, this Agreement shall prevail, even if any of the other Terms indicate that those Terms shall prevail in the event of any conflict between terms that apply to any of the Services.  In the event that the Advertiser previously entered into another agreement with the Company or a subsidiary of the Company, the parties agree that the Listing Agreement amends, restates and replaces that prior agreement.

 

  1. Severability & Headings. If any portion of these Terms is found to be invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms shall remain in full force and effect.  Further, any provision of these Terms held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.  Headings in these Terms are for reference only and do not limit the scope or extent of such section.

 

  1. Venue & Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of New South Wales. Venue shall be the courts of New South Wales. Either party agrees to submit any action within one (1) year after the incident upon which the claim was made first occurred.

 

  1. Expenses. Unless otherwise expressly provided in the Terms, all costs and expenses incurred in connection with the Terms and in closing and carrying out the transactions contemplated hereby shall be paid by the party incurring such cost or expense.

 

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