V2.5 Updated: 14th May 2018
This agreement is made between GOLIATH Reservation Systems Limited (Registered in England under Company Number 07053414) trading as BOOKINGHOUND.COM and the CUSTOMER.
The parties agree as follows:
1.1 In this Agreement the following words or phrases have the meanings set out below:
1.1.1 "Business Day" means any day except a Saturday, Sunday or English public or bank holiday.
1.1.2 "Commencement Date" is the date following an initial thirty day period that the CUSTOMER applies to use BOOKINGHOUND.COM and accepts these terms and conditions.
1.1.3 "Intellectual Property Rights" includes copyrights, registered designs, patents, trademarks, service marks, design rights (registered and unregistered), database rights, rights to extract or exploit data from a database, applications for any of the above, trade secrets, rights of confidence, know-how and all other similar rights recognised from time to time anywhere in the world, and all accrued rights of action in respect of any of the foregoing.
1.1.4 “Customer” means YOU as the user of the service as detailed in 1.1.6
1.1.5 “End User” means YOUR customer as the purchaser of YOUR service.
1.1.6 "Service" means the BOOKINGHOUND.COM service as amended by BOOKINGHOUND.COM from time to time to include modifications, alterations, enhancements and improvements to the Services made by BOOKINGHOUND.COM.
1.1.7 “Scale of Charges” means the charges to be paid for use of the Service as detailed by BOOKINGHOUND.COM
1.1.8 “BOOKINGHOUND.COM Usage Fee” means the charge made to END USER as defined by schedule SS4.4
1.1.9 A BOOKINGHOUND.COM “Chargeable Transaction” is one as defined by Schedule SS 2.1.
1.1.10 Clause headings in this Agreement are for convenience only and do not affect the interpretation or construction of this Agreement.
1.1.11 Any reference in this Agreement to writing includes any text stored or transmitted electronically.
2. TERM AND TERMINATION
2.1 Subject to the CUSTOMER complying with its obligations under this Agreement, BOOKINGHOUND.COM will provide the Services to the CUSTOMER.
2.2 Unless otherwise agreed by a specific addendum, either party may terminate this Agreement without cause by giving not less than one month’s written notice to the other to expire on any anniversary of the commencement date.
2.3 This Agreement may also be terminated at any time by BOOKINGHOUND.COM if the CUSTOMER is in breach of any provision of this Agreement and fails to rectify that breach within fourteen days after being requested to do so, or is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation), or compulsory liquidation or a receiver or administrator is appointed over its assets.
2.4 On the termination of this Agreement, BOOKINGHOUND.COM will be entitled to receive all fees and other monies accrued due up to the date of termination and the CUSTOMER will immediately remove any links from the CUSTOMER’s website to the Services. The CUSTOMER will not be entitled to any refund of fees relating to unused transactions already paid at the date of termination.
2.5 BOOKINGHOUND.COM may suspend or cancel, at its sole discretion, the CUSTOMER’s right to receive the Services at any time. If the CUSTOMER fails to pay BOOKINGHOUND.COM in accordance with clause 3, or if the CUSTOMER breaches any other provision of this Agreement, BOOKINGHOUND.COM may suspend or cancel, at its sole discretion, the CUSTOMER’s right to receive the Services at any time. This may include the removal of the CUSTOMERS DATA from the BOOKINGHOUND.COM servers. BOOKINGHOUND.COM's suspension of the CUSTOMER’s right to receive the Services will not preclude BOOKINGHOUND.COM later terminating this Agreement for the same or a different reason.
2.6 Termination in accordance with this clause shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party and all provisions which are expressed to survive this Agreement or impliedly do so shall remain in full force and continue indefinitely.
3. CHARGES & PAYMENTS
3.1 In return for BOOKINGHOUND.COM providing the Service, depending on the pricing plan selected, the CUSTOMER or END USER will pay BOOKINGHOUND.COM either via its online purchasing facility using a credit or debit card in accordance with BOOKINGHOUND.COM's Scale of Charges as presented on the prices page of the BOOKINGHOUND.COM web site which are varied at its sole discretion from time to time or by pre-payment in accordance with a CUSTOMER specific addendum. The CUSTOMER will also pay all applicable third party payment gateway charges, sales value added taxes and any other taxes or charges levied by any governmental, statutory or regulatory authority in connection with the provision of the Services to the CUSTOMER.
3.2 If a due payment to Bookinghound.com is not authorised or received, we will send you a minimum of one email to inform you of the steps you need to take to resolve the issue. Should a payment remain outstanding for more than fourteen days beyond the unpaid invoice date then your account with BOOKINGHOUND.COM will, at BOOKINGHOUND.COM’s sole discretion, be either immediately terminated or suspended until the appropriate funds are received by BOOKINGHOUND.COM. This will include the removal of the CUSTOMERS DATA from the BOOKINGHOUND.COM servers.
3.3 There may be various time limited transaction fee promotions applied from time to time and once ended the transactions fees will revert to the standard rates published at that time.
3.4 If a CUSTOMER signs a ‘Disputed Transaction – Authority Not Given’ document for a transaction with their credit card company - for whatever reason - and it subsequently transpires the card was not used fraudulently or without knowledge the following applies: The CUSTOMER agrees to pay for the transaction at the published rate at the time for the period/amount disputed - plus an administration fee of £75. The CUSTOMER hereby agrees to make the payment within fourteen days of invoice - forgo any rights whatsoever to defend this charge plus any costs incurred should it be necessary to recover it through the County Courts/Local or Civil Courts.
3.5 The CUSTOMER hereby agrees that if they do sign the aforementioned documents (3.4) with their credit card company then they must inform the relevant authorities (police/credit card company etc) at the earliest available opportunity and instruct them to carry out a full investigation into the alleged misuse of the card.
3.6 BOOKINGHOUND.COM will refund 100% of an individual failed transaction fee that is due to an operating failure of the BOOKINGHOUND.COM system. This excludes failed transactions due to any form of refused payment. To receive a full refund it must be demonstrated that after following all published instructions and taken advice from BOOKINGHOUND.COM support that the transaction has indeed failed to complete.
3.7 The ‘Datacash’ online authorisation and funds transfer facility for Visa, MasterCard, American Express and debit card transactions may be licensed for an on going annual fee of £360 +Vat payable in advance plus 20p +VAT per transaction invoiced monthly in arrears.
3.8 BOOKINGHOUND.COM may revise and implement its Scale of Charges in order to reflect any new, additional or improved Service(s) and will give the CUSTOMER thirty day’s notice of any such changes.
4. PROPRIETARY RIGHTS
4.1 The CUSTOMER acknowledges and agrees that all software and other documentation that forms an integral part of the Services and all copies of them and all Intellectual Property Rights in or relating to them or the Services are and will remain the property of BOOKINGHOUND.COM or the third party from whom BOOKINGHOUND.COM has secured the right to use that software or any part of the Services.
4.2 Material must not be utilised in the Service, or, except as expressly provided by copyright law, copied, redistributed or published, that is in breach of copyright without the permission of the owner(s) of that copyrighted material.
4.3 The CUSTOMER hereby grants to BOOKINGHOUND.COM a non-exclusive, worldwide, and royalty-free licence for the duration of this Agreement, if applicable, to store, modify, translate, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, display, and otherwise use the CUSTOMER’s content, including content supplied by third parties, only as necessary for the purposes of providing and operating the Services to the CUSTOMER under this Agreement. The CUSTOMER expressly agrees that such use is not an infringement of any of the CUSTOMER’s intellectual property rights or any third party's intellectual property rights.
5. USE OF THE SERVICES
5.1 The CUSTOMER is responsible for ensuring that its account is only used and accessed in accordance with the terms of this Agreement and will not allow anyone except its duly authorised employees, agents and contract staff to use the Services or give or purport to give BOOKINGHOUND.COM any notification, instructions or power of attorney.
5.2 If the CUSTOMER believes that there is a fault with the Services, the CUSTOMER will report it to BOOKINGHOUND.COM as soon as possible and BOOKINGHOUND.COM will use its reasonable endeavours to resolve any defect as quickly as possible.
5.3 The CUSTOMER is responsible for the acquisition and maintenance of all hardware and software necessary to receive and use the Services and for ensuring that any equipment and software it uses are compatible with the Services.
5.4 The CUSTOMER warrants, represents and covenants to BOOKINGHOUND.COM that (a) it will use the Services only for lawful purposes and in accordance with this Agreement; (b) it has acquired or will acquire all authorisation(s) necessary for hypertext links to third-party websites or other content; and (c) it will comply with the Data Protection Act 1998 and all statutory re-enactments and amendments thereof.
5.5 The CUSTOMER agrees not to use the Services for any fraudulent purpose or to send, knowingly receive, upload, download, use or re-use any material which is abusive, indecent, defamatory, obscene or menacing, or in breach of any copyright, confidence, privacy or any other rights and will adhere to acceptable user practices provided in writing from time to time by BOOKINGHOUND.COM to the CUSTOMER and deemed to be accepted by the CUSTOMER. Once identified, BOOKINGHOUND.COM will notify the CUSTOMER promptly of any breach. BOOKINGHOUND.COM has the right, at its sole discretion, to suspend or terminate the CUSTOMER’s account without notice or refund or to block access to the Service.
5.6 Whenever BOOKINGHOUND.COM reasonably requires the CUSTOMER to provide information or data, or give any co-operation, consent or authority that is necessary in order to allow BOOKINGHOUND.COM to provide the Services, the CUSTOMER will do so promptly and so as not to cause or contribute to any delay or interruption in the provision of the Services.
5.7 The CUSTOMER will do anything and execute any document that may reasonably be required to enable BOOKINGHOUND.COM to provide the Services to the CUSTOMER.
5.8 BOOKINGHOUND.COM may modify, suspend, discontinue or improve the Services at any time but, if that materially affects the Services, BOOKINGHOUND.COM will give the CUSTOMER not less than thirty day’s notice.
6.1 The CUSTOMER may give instructions to BOOKINGHOUND.COM at any time but BOOKINGHOUND.COM will not be obliged to act on them except on Business Days and in accordance with the operational instructions and procedures provided by BOOKINGHOUND.COM.
6.2 The CUSTOMER shall from time to time provide BOOKINGHOUND.COM with a list of persons authorised to give instructions to BOOKINGHOUND.COM and will use reasonable measures to ensure that it only acts on authorised instructions, but shall not be responsible for any actions taken under instructions that appear to come from an authorised source but were inaccurate or incomplete or otherwise unauthorised.
6.3 BOOKINGHOUND.COM will incur no liability in respect of any loss or damage, directly or indirectly arising out of, any error, omission, discrepancy, inaccuracy or ambiguity in any instruction, notification, message, or other information received by it from the CUSTOMER, or in respect of any loss or liability arising out of the use of BOOKINGHOUND.COM as well as acting on any such instruction, notification, message or information or on any instruction, notification, message or information which appears to have been sent by or on behalf of the CUSTOMER.
7. DATA PROTECTION
7.1 Each of the parties will comply with all national and applicable requirements of their relevant Data Protection Legislation including the General Data Protection Regulation (GDPR) in the EU as appropriate.
7.2 Each of the parties acknowledge that for the purposes of the General Data Protection Regulation (GDPR), the CUSTOMER is the data controller and BOOKINGHOUND.COM is the data processor (only where the Data Controller and Data Processor have meanings as defined by the GDPR Legislation).
7.3 The CUSTOMER will warrant and ensure it has all necessary and appropriate consents in place to enable the lawful transfer of the Personal Data to BOOKINGHOUND.COM for the duration and purposes of this Agreement.
7.4 BOOKINGHOUND.COM will process PersonalData in order to deliver the SERVICE unless we are prohibited to by the laws of the European Union or a member of the European Union as applicable.
7.5 BOOKINGHOUND.COM has in place appropriate technical and organisational measures to protect against unauthorised processing of Personal Data.
7.6 BOOKINGHOUND.COM will ensure that all personnel who have access to Personal Data will keep the Personal Data confidential; and not transfer any Personal Data outside of the European Economic Area unless your prior consent has been obtained.
7.7 BOOKINGHOUND.COM does not sell, exchange or share the data we hold with any organisation unless your prior consent has been obtained or we are required by law to do so.
8.1 Each of the parties will at all times respect and protect the confidentiality of information acquired by it from the other under this Agreement except where it is obliged to disclose that information by law or pursuant to the requirements of any competent authority, or in order to perform its obligations under this Agreement. The CUSTOMER will keep confidential and not use for any purpose except to receive the Services, any information about or relating to the Services.
8.2 Clause 8.1 above does not prevent the disclosure of information by either party to its auditors, legal advisers or regulatory bodies in connection with the proper performance of their duties, or the disclosure of any information which is not of a confidential nature or which is or comes into the public domain (unless by virtue of a breach of clause 8.1).
8.3 Neither of the parties will do, nor omit to do, anything that would or might prejudice or bring into disrepute the business or reputation of the other party or any director or partner of that other party.
8.4 The CUSTOMER agrees that BOOKINGHOUND.COM may mention the CUSTOMER’s name, their business activities and use their trading logo as a user of the Services in its marketing of the Services.
9. LIMITATION OF LIABILITY
9.1 The CUSTOMER agrees the use of the Services is at the CUSTOMER’s sole risk. BOOKINGHOUND.COM, its agents, contractors, licensors, employees and information providers providing the Services and do not guarantee that they will be uninterrupted or free from error. The CUSTOMER accepts that without notice for commercial, technical or other reasons the Services or part thereof may be suspended and a network or service provider connected to the Services may suspend or terminate its connection to the Services. BOOKINGHOUND.COM may from time to time without notice close down or restrict the whole or part of the Services where necessary for emergency repair, to prevent overload of the network, or to preserve the safety, security or integrity of the Services and traffic conveyed. BOOKINGHOUND.COM shall at its sole discretion decide when such action is necessary and BOOKINGHOUND.COM will not be liable for the direct or indirect consequences of, any delay or interruption in the SERVICE or for any fault in any telecommunications or data communications system or network.
9.2 While BOOKINGHOUND.COM and its employees and authorised agents will use all reasonable endeavours to provide prompt continuing SERVICE, it will not be liable for any loss of data or any delay in or non-performance of its obligations under this Agreement howsoever caused, including but not limited to acts of God, fire, lightning, explosion, war disorder, flood, industrial disputes, sabotage, extremely severe weather or acts of local or central Government or other competent authorities, or by any errors or omissions of the CUSTOMER.
9.3 The CUSTOMER acknowledges that, in connection with the provision of the SERVICE, BOOKINGHOUND.COM may supply or rely on information supplied by the CUSTOMER and third parties and BOOKINGHOUND.COM will not incur any liability to the CUSTOMER in connection with any error, omission or inaccuracy in any of that information or for any negligent advice given by any third party via the Services.
9.4 BOOKINGHOUND.COM will not be liable for any direct, indirect or consequential loss or damage, any loss of profits, loss of business, loss of contracts, loss of savings, loss of opportunity, loss or spoiling of data or loss of use, whether that loss or damage arises from BOOKINGHOUND.COM's negligence, the performance or availability of BOOKINGHOUND.COM or the misuse of the CUSTOMER’s passwords or in any other way.
9.5 BOOKINGHOUND.COM's aggregate liability to the CUSTOMER in connection with this Agreement or the Services, whether in contract or tort (including negligence) or in any other way, will not exceed the total charges paid by the CUSTOMER during the seven days immediately preceding the CUSTOMER notifying BOOKINGHOUND.COM of its claim.
10.1 The CUSTOMER will indemnify and keep BOOKINGHOUND.COM its agents, contractors, licensors, employees and information providers providing the Services indemnified from and against any and all losses, damages, costs, claims, expenses or liabilities of any kind which may be incurred by or asserted against BOOKINGHOUND.COM as a result of a breach of the terms and conditions of this Agreement by the CUSTOMER and from any claim brought by third parties alleging that use of the Services by the CUSTOMER or under its account has infringed any intellectual property or other right of any kind, or any applicable U.K. or international legislation or regulation.
11. SOURCE PROGRAMS
11.1 BOOKINGHOUND.COM will maintain up to date versions of the source programs of the computer system and software, which comprise the BOOKINGHOUND.COM system, on the computer hardware upon which the Services are provided. Under no circumstances will BOOKINGHOUND.COM give any form of warranty for Source Programs and BOOKINGHOUND.COM specifically disclaims the implied conditions of merchantability and fitness for a particular purpose on Source Programs.
11.2 Ownership, Title, Copyright and Intellectual Property Rights of the Source Programs remain solely with BOOKINGHOUND.COM.
11.3 If BOOKINGHOUND.COM shall cease to trade, or if a liquidator, receiver or administrative receiver or similar officer shall be appointed over its assets, the CUSTOMER may have the right to continue using the Services but shall not have any rights to ownership, title, copyright and intellectual property of the Services or Source Programs.
12.1 BOOKINGHOUND.COM will provide email support during the U.K. hours of 09:30 to 17:00 Monday to Friday excluding U.K. public holidays (“Business Hours”). Any support requirements in excess of these times may be provided by BOOKINGHOUND.COM on request at an additional charge to be agreed in advance, but BOOKINGHOUND.COM are under no obligation to provide support at any other times.
13.1 This Agreement and its Schedule(s) constitute the entire agreement between the parties relating to the provision of the Services, and supersede all previous agreements and all oral or written representations, agreements and understandings between the parties relating to that subject matter; provided that nothing in this Agreement is intended to exclude or restrict any liability for fraud.
13.2 Except as expressly provided for in this Agreement, no variation to this Agreement will be effective unless recorded in writing and signed on behalf of both of the parties.
13.3 Other than for the purpose of reorganisation or reconstruction, the CUSTOMER may not assign, sub-license, sub-contract, transfer or otherwise dispose of any or all of its rights or obligations under this Agreement.
13.4 Notices under this Agreement including any notification which forms part of the Services or which the CUSTOMER sends to BOOKINGHOUND.COM in the course of using the Services should be sent by email to firstname.lastname@example.org
13.5 No exercise or failure to exercise or delay in exercising any right, power or remedy vested in either party under or pursuant to this Agreement will constitute a waiver by that party or any other right, power or remedy.
13.6 The invalidity, illegality or unenforceability of any of the provisions of this Agreement will not affect the validity, legality and enforceability of the remaining provisions of this Agreement.
13.7 This Agreement will be governed by and construed in accordance with English law and the parties will submit to the non-exclusive jurisdiction of the English courts.