End User License Agreement ('Agreement')
For Mobile Application
Please read this Agreement carefully, as it sets out the terms and conditions upon which we license our App for use.
If you do not agree to this Agreement, you must not use the App for any purpose whatsoever
1. Definitions and interpretation
1.1 In this Agreement:
"Agreement" means this end user license agreement, and any amendments made from time to time;
"Annual Fee" means the fee payable annually;
"App" means Hinfo, a mobile application for servicing hotels and properties for guests to view the Property Services and includes any Upgrades;
"Computer" means a desktop, notebook, netbook or similar computer, including mobile devices such as smartphones and tablets owned by and in your control;
"Force Majeure Event" means an event, or a series of related events, that is beyond the reasonable control of either party (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Functionality" includes the ability to read content such as room details and Property Services, to load webpages, view menus, create calendar events, obtain locations on maps, to receive guest feedback, and to make calls
"Intellectual Property Rights" means all trademark, copyright, design, trade secret, invention, and patent rights worldwide, whether registered or unregistered;
"Property Services" means the facilities available and services that you provide at your hotel or property such as gyms, pools, room service menus, BBQs, local attractions, and/or airport shuttles;
"Set-up Fee" means the non-refundable set-up fee payable for the App;
"Term" means the period of 12 months from the date that the App is set-up for you;
"Upgrade" an upgrade, update, enhancement, improvement or patch to the App supplied by us;
"Us, our, we" means the licensor, Neil Robert Houlston t/as App IT Byte; and
"You/ your " means the licensee of the App under this Agreement.
2.1 You are granted a non-exclusive, non-transferable license to use the App for the Term for your own business or non-commercial purposes and in accordance with the provisions of this clause.
2.2 Subject to the payment by you of the relevant Set-up Fee and Annual Fees in respect of the App license, and your compliance with this Agreement, we grant you a non-exclusive, non-transferable license to:
(a) download and install the App on your Computers;
(b) use the App to utilize its Functionality for the purpose of displaying Property Services;
(c) use the App for one property, or one hotel at one address; and
(d) use the App anywhere in the world.
2.3 You must not:
(a) copy or reproduce the App or any part of the App other than in accordance with the license granted in these Terms;
(b) sell, lease, loan, supply, distribute, or publish the App or any part of the App;
(c) modify, alter, adapt, translate, edit, or create derivative works of the App or any part of the App;
(d) reverse engineer, decompile, disassemble the App or any part of the App;
(e) circumvent or remove or attempt to circumvent or remove the technological measures applied to the App for the purposes of preventing unauthorised use, provided that nothing in this clause will prohibit or restrict you or any other authorized person using the App as expressly permitted by applicable law or permitted with our consent.
2.4 Each party owns and will continue to own all Intellectual Property that were proprietary to them prior to using the App. All Intellectual Property Rights in the App will remain our property. Any Intellectual Property Rights developed by you in relation to the App must be transferred to us on demand. In the event of any dispute in relation to the Intellectual Property Rights in the App, we retain and have full rights in relation to any investigation, defence, settlement and discharge of any claims by any third parties.
2.5 You must not permit any other person to use the App or to exercise any of the other rights granted by us to you in this Agreement.
3.1 You must pay the Set-up Fee on or before the date we set-up the App for you. For the avoidance of doubt, the Set-up Fee is not refundable.
3.2 You must pay the Annual Fee for the Term in advance and within fourteen days of the date of the invoice.
4.1 We, or our authorized agents are solely responsible for providing support and maintenance for the App. We will provide you with email support during the Term of the license for the purpose of resolving issues with the App raised by you using the App as intended and in accordance with this Agreement.
4.2 You acknowledge that:
(a) our obligations under this clause are subject to such limits (as to time spent in relation to an issue and in relation to you) as we may determine from time to time;
(b) our sole obligation under this clause is to make reasonable commercial endeavours to resolve issues raised by you;
(c) we do not warrant or represent that issues raised will be solved by means of the support services; and
(d) we will not provide any on-site support under this Agreement.
4.3 We may subcontract any of our obligations under this clause to any third party.
5. Limited warranties
5.1 You represent and warrant:
(a) that you have the legal right and authority to enter into and perform your obligations under this Agreement;
(b) that you will keep your passwords and confidential user identification to access the App secure;
(c) that you will only provide the App login code to your guests and no other persons;
(d) that you will comply with all relevant laws when using the App, for example by keeping guests log-in details, and room details according to the Privacy Act 1988;
(e) that you have the consent of any third party information you display on the App which is not already in the public domain;
(f) that you will keep all Property Services on the App correct and up-to date; and
(g) that you are not in breach of any third party Intellectual Property Rights in relation to any information you display on the App.
5.2 We warrant:
(a) that the use of the App by you in accordance with the terms of this Agreement does not knowingly infringe the Intellectual Property Rights of any third party; and
(b) we will at all times abide by the Australian Consumer Law requirements in relation to the App including but not limited to the re-supply or refund of any goods or services in accordance with Schedule 2 of the Competition and Consumer Act 2010 (Cth);
5.3 We do not warrant:
(a) that the App or services provided through the App will operate uninterrupted or be error-free. There may be periods where, for technical or operational reasons the App and services may be inaccessible or we may have to cancel the service as a result of the technical or operational issues; and
(b) that the App and services will be free from loss, viruses, corruption, hacking, security breaches or other such events which may constitute a Force Majeure Event for which we disclaim any liability for any such issue or event. You are solely responsible for backing up your systems, information and the App.
5.4 You acknowledge that:
(a) the App may not be error-free and that non-material errors in the App will not constitute a breach of this Agreement;
(b) the App offers the Functionality, but has not been developed to meet your specific requirements, and accordingly you will be responsible for ensuring that the App is suitable to meet your requirements; and
(c) any information provided by you on the App is your responsibility, and all guest feedback is not viewed by us, and is your sole responsibility.
5.5 All of the parties' liabilities and obligations in respect of the subject matter of this Agreement are expressly set out herein. To the maximum extent permitted by applicable law, no other warranties or terms concerning the subject matter of this Agreement will be implied with regard to the use of the App into this Agreement or any related agreement.
6. Limitations and Exclusions of Liability
6.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from gross negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit or exclude any liability of a party in any way that is not permitted under applicable law; or
(d) any statutory rights which you have, which cannot be excluded or limited under Australian Consumer Law, will not be affected by the Agreement.
6.2 The limitations and exclusions of liability set out in this Clause 6:
(a) are subject to the above Clause 6.1; and
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
6.3 We will not be liable to you or any third party, to the extent permitted by law, in tort (including negligence), contract, equity, under statute or otherwise for any business or personal losses, such as loss of or damage to profits, data, income, revenue, pure economic loss, use, production, anticipated savings, business, contracts, commercial opportunities, goodwill, Force Majeure Event, death or personal injury.
6.4 We will at no time not be liable to you in respect of any special, indirect, or consequential loss or damage including but not limited to any loss or corruption of any data, database or App.
In any case, our aggregate liability to you will not exceed the Annual Fees paid for the App.
You agree to indemnify and hold us, each of our affiliates, successors, directors, employees, agents, representatives, suppliers and service providers harmless from and against any and all losses, expenses, damages, costs and expenses (including all reasonable legal fees), resulting from your use of the App and/or any violation of the Terms of this Agreement. You agree to assume and take over control of any demand, claim or action arising hereunder or connection with the App in the event of any action resulting directly or indirectly from your use of the App or our services or any breach of the Terms of this Agreement.
The license granted under this Agreement is for the Term, unless terminated by us. This Agreement will automatically renew for a further Term unless you notify us in writing before the expiry of the Term that you wish to terminate. Your rights under this license will terminate automatically without notice if you fail to comply with any terms of this license, or you fail to make an Annual Fee. Upon termination of the license, you will cease all use of the App and destroy all copies of the App.
9.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
9.2 If a clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted).
9.3 We may freely assign this Agreement and/or its rights and/or obligations under this Agreement without your consent. Except as expressly provided in this Agreement, you must not assign, transfer, charge, license or otherwise dispose of or deal in this Agreement and/or any its rights and/or obligations under this Agreement.
9.4 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of this Agreement. Subject to Clause 5, each party acknowledges that no representations or promises not expressly contained in this Agreement have been made by or on behalf of the other party.
9.5 This Agreement will be governed by and construed in accordance with the laws of the state of Victoria, Australia; and the courts the state of Victoria of Australia will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.