Terms and conditions
Uplisting General Terms and Conditions
Version 2.0, March 2018
These general terms and conditions (“General Terms”) apply to any access to and use by a property manager, owner, distributor or aggregator of holiday rental properties (“you”) of Uplisting limited’s (“UPLISTING” “we” or “us) proprietary technology platform through which we display and offer certain holiday rental properties for booking, as well as provide onward distribution, payment processing and related services as described in this document (our “Services”) (the General Terms and all and any other terms and conditions incorporated by reference in the General Terms, together, the “Agreement”).
PLEASE READ THESE GENERAL TERMS CAREFULLY BEFORE "SIGNING UP". They constitute a legally binding agreement between you and us.
1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following capitalised terms will have the following meanings:
(a) “Additional Fees” means any additional fees that a Guest must pay to stay at a Property such as city tax, cleaning fees, refundable breakage deposit and similar. All Additional Fees must either be included in the Rate or listed separately in the Listing.
(b) “Booking” means the binding contract created between you and the Guest when a Guest books a Property;
(c) “Channel Distribution Services” means those Services we provide when you do not have a direct contractual relationship with the applicable Channel Partner, including the distribution of Property Content to the Channel Partner;
(d)”“Channel Partner means a third-party with whom we have a contractual relationship for the advertisement, promotion and distribution of holiday rental properties;
(e) “Commission” means the per-transaction fee you owe us and our Channel Partners when a Guest makes a reservation for a Property, whether you are the merchant of record for the transaction or otherwise.
(f) “Confidential Information” means any non-public information in any medium or format, whether marked “Confidential” or otherwise, of or about a party which that party provides to the other or to which the other has access under or in connection with this Agreement. Confidential Information specifically includes Personal Information provided by one party to the other, the terms and conditions of this Agreement, trade secrets, any non-public business, financial, marketing or related information and any information that a reasonable party in the receiving party’s position is to be treated confidentially. Confidential Information excludes information that: (i) is or becomes publicly available through no act or omission on the part of the receiving party; (ii) was possessed by the receiving party prior to the date of this Agreement; or (iii) is disclosed to the receiving party by a third party without any restrictions on its disclosure.
(g) “Connectivity Services” means those Services we provide where: (i) you have a direct contractual relationship with the applicable Channel Partner permitting us to provide Property Content as set out in this Agreement; and (ii) we act solely as a technological intermediary with Channel Partners with regard to such Property Content.
(h) “Direct Debit” means the method of payment where you give instructions to your bank to authorise us to collect amounts you owe under this Agreement directly from your designated bank account;
(i) “Claims” means any claim, cause of action, suit, proceeding, demand, or governmental or regulatory investigation;
(j) “Guest” means the end consumer of a Property;
(k) “Intellectual Property Right” means any patent, copyright, invention, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world;
(l) “UPLISTING Site” means our proprietary technology platform used to deliver the Services, including any website(s), apps, APIs, tools, code and associated hardware used for that purpose;
(m) “Laws” means all international, national and local laws, rules, regulations, statutes, orders, court or regulator decisions or similar acts of applicable authorities;
(n) “Listing” means the specific part of the Property Content relating to a single Property as displayed or distributed via the UPLISTING Site;
(o) “Losses” means any damages, losses, liabilities, fees, fines, penalties, costs and expenses, including reasonable legal fees;
(p) “Personal Information” means any information that is capable of identifying or locating a natural individual, including such individual’s payment card number, first and last name, email address and physical address.
(q) “Platform” means any or all of the following offered or made available by a third-party or by you: website(s), apps, tools, software-as-a-service and related software and hardware technology;
(r) “Property” means the holiday rental property, or room within your B&B, guesthouse, hotel or other such hospitality establishment, that you make available to us via your PMS so we can perform the Services;
(s) “Property Content” means all and any information and content about and relating to a Property, its amenities and services, which must include, for all Properties, at least the following: Rate details, Taxes (if not included in the Rate), all Additional Fees, availability calendar, cancellation and no-show policies, ‘House Rules’ applicable to Guests and the Property and all material defects or conditions of the Property. The Property Content may not contain any telephone, fax numbers, email, skype address or any link or identifier/user name, with direct references to you or any third-party (including Channel Partners) or your or a third-party’s website;
(t) “Property Management Software” or “PMS” means the software that we use to facilitate our Services;
(u) “Rate” means the rate loaded into the PMS that you make available to us for a one-night stay at the Property;
(v) “Sell Rate” means the total amount charged to the Guest or distributed to the Channel Partner (as applicable), including Taxes and excluding Additional Fees; and
(w) “Subscription Plan” means one of the recurring Services bundles available on the UPLISTING Site;
(x) “Taxes” means all taxes, levies, charges or other fees assessed by any governmental authority on or in connection with the transactions contemplated by this Agreement, to the exclusion of city/tourist taxes and any such taxes, levies, charges or other fees assessed solely on our income.
2. ACCOUNT SETUP; CHANNEL PARTNERS.
(a) Account Setup. You are required to provide us with certain registration information and to select a password before accessing these Terms. This registration information is used to create your UPLISTING account (“Account”). It is your sole responsibility to maintain accurate and up to date contact information and Account details In addition, you will be responsible and liable for any activities undertaken in connection with your Account, whether authorised by you or not. Please keep your password confidential; this is your sole responsibility. If you have reason to believe that the security of your Account has been compromised, please notify us immediately by email at firstname.lastname@example.org so we can suspend your Account and/or you can select another password.
(b) Channel Partners. By default, your Property will be distributed on all Channel Partners. We will inform you when a new Channel Partner is made available on the UPLISTING Site. You may select those Channel Partners to whom you would like us to distribute your Property Content or in connection with whom you would otherwise like to receive certain Services; If you do so, the Channel Partners you select will determine the type of Services we provide and, within the subset of selected Channel Partners, the Channel Partners to whom we will distribute Property Content in accordance with our agreements with those Channel Partners.
(c) Channel Partner Terms and Conditions. You are also required to make certain representations about: (i) your agreement(s) with Channel Partners; and/or (ii) your agreement with and acceptance of applicable Channel Partners’ terms and conditions. Please note that to the extent there is a conflict between any Channel Manager’s terms and conditions and this Agreement the most onerous and restrictive terms will be considered binding on you.
(d) No Liability. For clarity, we undertake no liability, and specifically disclaim all liability, for the acts or omissions of Channel Partners, including their use of or failure to use the Property Content.
3. LICENCE TO USE THE UPLISTING SITE.
(a) Scope of Licence. We grant you a limited, revocable, worldwide, non-transferable, non-sub-licensable right and license to access and use the UPLISTING Site to: (a) transmit, update, remove, modify and otherwise manage Property Content; (b) receive information from us; and (c) select Channel Partners who will receive Property Content from us. All Intellectual Property Rights not expressly granted to you in this Agreement are retained by us or our licensors.
(b) Suspension. We may, at any time and without notice to you or the requirement to pay any Losses, suspend your access to the UPLISTING Site if we believe, in our sole discretion, that you have breached any provision of this Agreement, including by providing Property Content that does not comply with the requirements set out in this Agreement or if we determine that the UPLISTING Site, Property Content, any content or property of our other customers and clients, or any individuals is or are at risk. We may also suspend access if required to do so by our third-party hosting provider or as otherwise required by applicable Laws. This suspension right is in addition to any other rights or remedies we may have under this Agreement or applicable Laws.
(c) No Sale or Rental of Property. You specifically acknowledge and agree that at no point under this Agreement do we or will we be considered to purchase, rent or otherwise take title to any Properties. We are solely a technology provider, assisting you in the offering for rent or sale, display, marketing, promotion and distribution of Properties. We are not Guests.
4. AUTHORISED AGENT OF OWNER. If you are not the owner of the Property, you represent and warrant to us that you are authorised to perform your obligations under this Agreement on the Property owner’s behalf (including without limitation that you have the express authorisation from the owner to deal with the Property and create a Listing for it and to offer it for rent). For the purpose of this Agreement, “you” will also mean the owner of any Property on whose behalf you are acting, as well as the entity or company agreeing to this Agreement. If you are not the owner of the Property, you further agree that you and the Property’s owner will be jointly and severally liable under this Agreement.
5. PROPERTY CONTENT.
(a) General Obligations; Scope of License. You will provide Property Content to us through your PMS in accordance with the formatting and standards provided by us, including standards provided via the UPLISTING Site. You grant us a worldwide, royalty-free, transferable, sub-licensable, right to use, copy, sublicense, display, exhibit, edit and translate the Property Content or portions of it as we consider necessary to fulfil our obligations to you and to market, advertise, distribute and promote the Property including, if applicable via websites owned or operated by us or on our behalf. Our right to use the Property Content also includes a right to make modifications: (i) as necessary for technical or formatting purposes; (ii) to correct obvious minor errors, such as typographical errors; or (iii) if we learn that certain portions of the Property Content are inaccurate. Except for the above, we will display the Property Content as you provide it. You will retain all Intellectual Property Rights in the Property Content, except for the licence granted in this clause 5; provided, however, that if we translate Property Content, we will own all Intellectual Property Rights in such translations.
(b) Sub-licences. Please note that, depending on the Services you have selected, we may sub-license the rights in the Property Content to Channel Partners via connection to their websites. As indicated above, we are not responsible or liable for, and disclaim all responsibility and liability for, the acts or omissions of any such Channel Partners, including their modification, use or lack of use of the Property Content
(c) Property Content Warranty. You represent and warrant that: (i) the Property Content will at all times be true, accurate and complete and relate to a bona fide property; (ii) the Property Content will comply with all applicable Laws, including without limitation Laws governing misleading advertising and Laws prohibiting the infringement or misappropriation of third party’s Intellectual Property Rights; and (iii) you have all rights, licences and permissions necessary to supply all Property Content, including licences from the creators and/or owners of Property Content, such as photographers.
(d) Updating Property Content. You will periodically review Property Content and will update Property Content on a daily basis (or such more frequent basis as may be required to make sure it is accurate, complete and that it complies with the warranty at paragraph (c) above). You may make changes to Property Content via your PMS or the UPLISTING Site at any time, which may include adding or removing Listings, updating calendars and increasing or decreasing Rates, as long as you do not breach any provision of this Agreement in doing so. Unless otherwise agreed to by us in writing, you are solely responsible for making all updates to the Property Content.
(e) Exclusion of Liability. We may, but are not required to, monitor Property Content. You acknowledge and agree that our display of Property Content is not a warranty or guarantee about any or all of the Property Content, including as to the legality or desirability of travel to the Property or any other matters, the confirmation and provision of which is and will remain your sole responsibility.
6. COMPLIANCE WITH LAWS; CONDITION OF PROPERTY.
(a) General Compliance. In addition to the above warranty, you represent, warrant and agree that you will at all times comply with all Laws applicable to the Property, the Listing, your performance under this Agreement, your rental of the Property, the fulfilment of Bookings and your business in general. Without limiting your other obligations, you will obtain and maintain all licences, permits and permissions required by applicable Laws and will keep and maintain the Property in good condition and otherwise in accordance with all local applicable fire and health & safety Laws. You further specifically agree to comply with all applicable Laws governing the collection, storage and processing of Personal Information.
(b) Our Obligation. We will also comply with all Laws applicable to our performance under this Agreement and to our business.
We will distribute Rates in accordance with the Rates you input on the UPLISTING Site for the applicable Property so, without prejudice to your general obligations, warranties and representations at clause 5 above, you will ensure such Rates are accurate and up to date at all times.
8. BOOKINGS, COMPLAINTS AND CANCELLATIONS
(a) Confirmation. Irrespective of the Services provided by us, when a Guest makes a Booking via the UPLISTING Site (including Bookings made with Channel Partners), you have the option to receive a booking confirmation through the UPLISTING Site that includes the Guest’s name and address, the name and address of the Property, dates of arrival and departure, and the Sell Rate. If you are receiving Connectivity Services specifically, the applicable Channel Partner may also send you a confirmation in accordance with the terms and conditions of your agreement with them. If you are receiving Channel Management Services specifically, the applicable Channel Partners may also provide the applicable Guest with a Booking confirmation.
(b) Bookings. A Booking is created when a Guest completes a booking transaction. You and the Guest will become contractual parties upon a Booking being made and you must, among other requirements, provide the Property in compliance with the terms of the Property Content displayed when the Booking was made. This means, among other requirements, that you may not charge Guests any fees that are not displayed to the Guest as Additional Fees at the time the Booking is made. Changes made to Property Content after a Booking is created will not be binding on the Guest who is already a party to the Booking. We are not a party to any Booking.
(c) Cancellations. You may not cancel any Booking (i.e. breach your contract with a Guest for the provision of the Property to them) whether through the UPLISTING Site or otherwise. If a Guest contacts you to cancel a booking, you will make the cancellation through the UPLISTING Site or through the Channel Partner with whom the Booking was made. If a Guest cancels a Booking and you collect a cancellation fee from the Guest, we will still be entitled to Commission (if applicable). We will not be entitled to Commission on any cancelled Booking for which no such fee is collected. Cancellation fees must be charged only in accordance with the cancellation policy applying to applicable Property and disclosed to Guest during the booking process, which must be before any Booking is made. Please note that Channel Partners may have additional cancellation-related terms and conditions to which you agreed when you registered your Account.
(d) Guest Complaints. As between you and us, you will be solely responsible for resolving all Guest complaints about your Property or any associated amenities and services. We will not be required to resolve any such complaints, nor act as an intermediary between you and the Guest in resolving them.
9. GUEST PERSONAL INFORMATION.
(a) Ownership. As between you, us and any Channel Partners who collect Personal Information from Guests, we or the applicable Channel Partners will be considered the owners of all Personal Information collected from Guests via the UPLISTING Site or in connection with a Booking or a Guest’s stay at your property.
10. COMMISSION, PAYMENTS AND INVOICING.
(a) Commission. You will owe and pay us monthly in arrear a commission equal to the percentage of the Rate displayed in the Subscription Plan you have selected. We will be entitled to Commission whether the Guest’s stay is fulfilled or not. Commission will only be taken on the Rate; we will not be entitled to Commission on Additional Fees or, if Taxes must be provided separately from the Rates, on those Taxes.
(b) Cancellation Fees, No-Shows, Curtailed Stays, Overbooking. As stated at clause 8 above, we and our Channel Partners will be entitled to the Commission on any cancellation fees collected for Guest cancellation(s). You must also pay the full Commission in case of Guests no-show, unless you inform us within 3 days of the Guest’s scheduled check-in date, in which case we and our Channel Partners will be entitled to the Commission on any cancellation fees you may collect. You must also notify us if a Guest’s stay is shorter than booked. If you do not, you will be required to pay the full Commission calculated using the Guest’s booked stay, rather than the actual stay. If you overbook and are not able to accommodate a Guest, we will be entitled to the full Commission as if the Guest had completed his or her stay.
(c) Subscription. Pricing for the Subscription Plans are available on the UPLISTING Site and can be found at http://www.uplisting.io. Any and all fees paid for Subscription Plans are payable in advance and non-refundable.
If you have selected a paid-for Subscription Plan, you expressly agree that we are permitted to bill you the applicable recurring fees together with any applicable Tax and any other charges and that the fees will be either (at your choice): a) billed to the credit card you provide at the time a fee or charge is due and payable; or b) collected by Direct Debit.
If for any reason payment is not received, cannot be charged to your credit card or collected by Direct Debit, we reserve the right to either suspend or terminate your access to the UPLISTING Site and/or any Services and terminate this Agreement in accordance with clause 15 below.
(d) Increase. We reserve the right to increase the Commission and/or any fees for the Subscription Plans at least once per calendar year. If you do not agree with an increase, you may terminate this Agreement within 30 days after receipt of written notice from us of the increase in Commission and/or Subscription Plans fees. If you do not terminate the Agreement within that timeframe and continue using the UPLISTING Site, you will be deemed to have agreed to the increase.
(e) Taxes. You will be solely responsible for remitting any Taxes to the relevant taxation authorities.
(i) We will invoice you monthly in advance for the Subscription and in arrears for the Commission and any other amounts owed to us in connection with the Services you are receiving. Invoices will be sent via email to the contact information displayed in your Account. Full payment on all invoices is due within fourteen (14) days from the date of invoice. You may not withhold amounts in dispute and we may charge interest on overdue amounts to the maximum extent permitted by Laws.
(ii) If the Channel Partner is the merchant of record for these transactions, we will deduct the total Commission from amounts owed to you by us and the applicable Channel Partners and remit payment to you of the following amounts for each Guest that have been collected, to the extent they are applicable: (A) for Rates you indicated could not be marked up, the Sell Rate multiplied by the number of nights of the Guest’s stay; (B) for Rates you indicated could be marked up and which did not include Commission, the Rate you provided, plus applicable Taxes and Additional Fees and Charges multiplied the number of nights of the Guest’s stay; (C) for Rates you indicated could be marked up and which included Commission, the Rate you provided minus Commission plus applicable Taxes and Additional Fees and Charges multiplied by the number of nights of the Guest’s stay; (D) Taxes, if provided separately from the Rate; and (E) any cancellation fees or charges collected. Payment will be processed within seventy-two (72) hours of our receipt of funds from the applicable merchant of record.
(d) Payment. You must pay us by debit/credit card or by Direct Debit. You will obtain and maintain all necessary authorisations for card or Direct Debit payment and will, in any case, be responsible for any charges imposed by your bank on either Direct Debit or card payment. You must make all payments to us in cleared funds, without any deduction, withholding or set-off, including for any Taxes. If you are required to withhold any Taxes, you will pay us any additional amounts necessary so that we receive the full amounts to which we are entitled.
(e) Currency. We may, in our sole discretion, invoice you in EUR, USD, AUD or GBP. Any currency conversion will be at the exchange rate on the invoice date. The exchange rate used shall be the interbank rate (closing rate as used or promulgated by major international financial banks or service companies from time to time as we select in our sole discretion. You will pay us in the currency indicated in our invoice.
11. BOOKS AND RECORDS; AUDIT.
You agree to keep all books and records regarding the transactions, including without limitation Bookings, contemplated by this Agreement in accordance with generally accepted accounting principles, applicable Laws and standard industry practice. We may, no more than once per Agreement year, audit and inspect such books and records which you will keep at a reasonably accessible place. You agree to will make them available during normal business hours. We will bear the costs of any audit and inspection we undertake, unless you have underpaid us (or we have not otherwise received all payments to which we are entitled through no fault of ours) by more than the lesser of 5% or $200, in which case, you will reimburse us for all reasonable and actual costs associated with the audit. Our books and records, including the UPLISTING Site, will be considered conclusive evidence of the existence and your receipt of the Bookings made by Guests, as well as conclusive evidence of all amounts owed under this Agreement, including our Commission, unless you can provide reasonable and credible counter-evidence.
Neither party shall disclose to any person any information, whether in written or any other form, disclosed by or on behalf of one party ("Disclosing Party") to the other party ("Receiving Party") in the course of the discussions leading up to or the entering into or during the performance of this Agreement and which is identified as confidential or is clearly by its nature confidential ("Confidential Information") except insofar as the Confidential Information: (a) is required by a person employed or engaged by the Receiving Party in connection with the proper performance of this Agreement (but only to the extent that any person to whom the information is disclosed needs to know the same for the performance of their duties and provided the Receiving Party shall be obliged to procure that all such persons are aware of the obligation of confidentiality and undertake to comply with it); or (b) is required to be disclosed by law (provided that where permitted by law, the party disclosing the information shall notify the other party of the information to be disclosed and of the circumstances in which the disclosure is alleged to be required as early as reasonably possible before such disclosure shall be made and takes all reasonable action to avoid and limit such disclosure). Confidential Information does not include information which: (a) is generally available to the public otherwise than as a direct or indirect result of disclosure by the Receiving Party or a person employed or engaged by the Receiving Party contrary to their respective obligations of confidentiality; or (b) is made available or becomes available to the Receiving Party otherwise than under this Agreement and free of any restrictions as to its use or disclosure.
13. TERM, TERMINATION AND SUSPENSION.
(a) Term. This Agreement begins on the date you accept it and continues until terminated in accordance with the terms of this Agreement.
(b) Suspension. We may immediately suspend your access to your Account and/or the UPLISTING Site and temporarily remove Listings therefrom if you commit a material breach of your obligations under this Agreement. We may, but are not required to, notify you in advance of the suspension. The following will be considered material breaches, but this is not an exclusive list: if (i) you fail to pay any amounts when due; (ii) provide false, misleading, incomplete or inaccurate Property Content; (iii) you fail to fulfil any Bookings in accordance with the Property Content displayed at the time of booking; (iv) you behave in any inappropriate, illegal or unprofessional manner towards any Guest or our employees; (v) we receive a serious complaint from a Guest about your behaviour or the Property; or (vi) we receive a significant number of complaints from Guests about your behaviour or the Property, whether serious or otherwise.
(c) Termination for Cause. We may terminate this Agreement if you commit a material breach of your obligations under this Agreement and, if curable, fail to cure it within five (5) days after the later of: (i) receipt of written notice from us of the material breach; or (ii) suspension under paragraph (b) above. You may terminate this Agreement if we commit a material breach of our obligations under this Agreement and fail to cure such breach within twenty (20) days after receipt of written notice from you thereof.
(d) Termination for Convenience. Either party may terminate this Agreement “for convenience”—i.e. for any reason or for no reason—upon at least 30 days’ prior written notice to the other, provided however, that if you terminate the Agreement under this paragraph (d) and if you have paid the fee for your Subscription Plan in advance, you will not be refunded for any portion of it.
(e) Effect of Termination or Expiration. Upon termination or expiration of this Agreement for any reason, all rights and licenses will automatically terminate. You will honour all Bookings created up to the effective date of termination. Each party will, at the owning party’s option, return or destroy any of the other’s Confidential Information in that party’s possession, except that each party may retain copies of materials containing the other’s Confidential Information to the extent required to comply with applicable Laws or a party’s own record-keeping policies and procedures. Clauses 2(d) (Account set up; Channel Partners), 5(e), 9 (Guest personal Information), 11 (Books and Records; Audit), 12 (Confidentiality), 13(e) (Term, Termination and Suspension), 14 (Disclaimer of Warranties; Assumption of Risks), 15 (Indemnification), 16 (Limitation of Liability), 17 (Governing Law and Jurisdiction) and 18 (General) will survive termination or expiration of this Agreement, as well as all your obligations with regard to Bookings if any Bookings are booked but not fulfilled before the effective date of termination.
14. DISCLAIMER OF WARRANTIES; ASSUMPTION OF RISK.
(a) Disclaimer of Warranties. To the maximum extent permitted by applicable law, we do not give, and hereby disclaim any and all representations or warranties, whether express or implied, in respect of the subject matter of this Agreement, including, without limitation, in respect of the UPLISTING Site, the Services, our Channel Partners and their Platforms and specifically we do not give any warranties of non-infringement, merchantability, fitness for a particular purpose or accuracy and any warranties that access to the UPLISTING Site will be uninterrupted or error free, that any defects or technical issues will be corrected or that the UPLISTING Site is free of viruses, malware or similarly harmful code .
(b) Assumption of Risk. We are providing the UPLISTING Site and the Services “as-is” including connections to Channel Partners, as applicable and you agree to assume all risk associated with your use of the UPLISTING Site and the Services. You specifically acknowledge and agree that transmission of information over the Internet is inherently insecure and not confidential and that we do not guarantee your transmission will not be intercepted, hacked or decrypted. You further acknowledge and agree that we do not guarantee the accuracy of any information or content on any third-party Platform, including our Channel Partners.
(a) By You. You will indemnify, defend and hold harmless us, our affiliates, our members and owners, and their respective officers, directors, employees, successors, assigns, agents and representatives (“UPLISTING Indemnitees”) from and against any Claims brought or asserted against any of them by a third-party, including any Guest or Channel Partner, and any Losses incurred by any of them as a result of such third-party Claims to the extent arising out of or relating to: (i) your breach of this Agreement, including your failure to comply with applicable Laws or pay amounts when due, and the provision of inaccurate, infringing or misleading Property Content; (ii) the fulfilment (or your failure to fulfil) any Bookings; (iii) any Claims or Losses, death or bodily injury asserted, incurred or suffered by a Guest or other third-party while at a Property, including as a result of your breach of a Booking; (iv) any Taxes that a governmental authority determines are owed on the difference between the Rate and Sell Rate that we retain as Commission, if you provide us Rates that we may mark up in this manner; and (v) your acts or omissions under any contract, agreement or arrangement with Channel Partners, including failure to comply with all of the Channel Partner’s applicable terms and conditions.
(b) By Us. We will indemnify, defend and hold you, your affiliates, members, owners, and their respective officers, directors, employees, successors, assigns, agents and representatives harmless from and against any Claims brought or asserted against any of them by a third-party and any Losses incurred by any of them as a result of such third-party Claims to the extent arising out of or relating to infringement of any Intellectual Property Right by the UPLISTING Site when used by you as permitted in this Agreement.
(c) Indemnification Procedure. Either party (“Notifying Party”) will notify the other party ("Indemnifying Party") in writing, as soon as is reasonably practicable, of any claim about which the Notifying Party may be entitled to claim under the indemnity. The Notifying Party will co-operate fully in the defence of any claim, including by providing any relevant information or documents, at the indemnifying party’s expense. The Indemnifying Party will have control over the defence and settlement of any Claim, except that it may not enter into any final settlement agreement or consent to the entry of any final judgment without the Notifying Party’s prior written consent (which will not unreasonably be withheld or delayed). The Notifying Party’s delay or failure to comply with its obligations under (i) and (ii) of this paragraph will only excuse the Indemnifying Party from its indemnification obligations to the extent it is prejudiced by the delay or failure.
16. LIMITATION OF LIABILITY.
Subject to our indemnification obligations set out above, we will not and the UPLISTING will not, be liable to you in contract, tort (including negligence), pre-contract or other representation (other than fraudulent or negligent misrepresentations) or otherwise for: a) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings); or b) any special, consequential, or indirect loss, whether or not such losses were known to the parties at the commencement of this Agreement. This limitation extends, without limitation, to any such loss arising out of or relating to your access and use of the UPLISTING Site or our provision of Services. In addition, and subject to our indemnification obligations set out above, you specifically acknowledge and agree that the UPLISTING Indemnitees’ total liability under this Agreement will not exceed the higher of: (a) the Commission paid by you to us in the twelve months immediately preceding the events giving rise to the applicable Claim; or (b) $5,000 USD.
17. GOVERNING LAW AND JURISDICTION.
The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability) shall be governed by and interpreted in accordance with the law of England and Wales. Each party irrevocably agrees to the exclusive jurisdiction of the English courts over any claim, dispute or matter arising under or in connection with this Agreement or its enforceability or the legal relationships established by this Agreement. We may however seek any injunctive or emergency equitable relief against you to protect any Intellectual Property Right or enforce any obligation of confidence in connection with this Agreement in any other court of competent jurisdiction or concurrently in more than one court of competent jurisdiction.
(a) Assignment. Neither party will assign (including by way of a charge or declaration of trust) sub-license or deal in any way with this Agreement or any of its rights under this Agreement, without the prior written consent of the other party, such consent not being unreasonably withheld or delayed, provided that we will have the right to assign this Agreement to a subsidiary, holding or parent company (and any of their subsidiaries) of ours without your consent on written notice to you.
(b) Notices. Any notice given under this Agreement shall be in writing in English and served by hand, email, prepaid recorded or special delivery post or prepaid international recorded airmail. In the case of UPLISTING, notices shall be given to its Legal Department at the address displayed on the UPLISTING Site or at email@example.com. In your case, notice shall be sent to the postal or email address displayed in your Account. Any such notice shall be deemed to have been served at the time of delivery.
(c) Entire Agreement. This Agreement constitutes the entire agreement and understanding between you and us with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, offers, undertakings or statements regarding such subject matter, whether written or verbal.
(d) Variation. Except as expressly stated, this Agreement may only be amended by a written document signed by both you and us.
(e) Severability. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The parties will replace the invalid or unenforceable provision by provisions that are valid and enforceable and that have, to the greatest extent possible, a similar effect as the invalid or unenforceable provision, given the contents and purpose of this Agreement.
(f) No waiver. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
(g) Third party right. Except as expressly set out in this Agreement, a person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement.
(h) Changes to Terms. We may modify this Agreement at any time and any changes we may make will be posted on this page and, where appropriate, notified to you by email. Please check back frequently to see any updates or changes to this Agreement. Where we make material changes to This Agreement, you must indicate your objection to these changes in writing to us within 30 days after such changes come into force or the modifications will be deemed accepted by you and the Agreement accordingly amended.
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