Terms & Conditions
These terms and conditions apply to all services supplied by Direct Hotels unless a separate user agreement applies. By completing and submitting a Registration Form to Direct Hotels, or clicking “I Agree”, or using a Direct Hotels Product, you acknowledge that you have read and agree with the following terms and conditions.
In these terms and conditions, unless the context otherwise requires: Agreement means the agreement constituted between Direct Hotels and the Customer comprising these terms and conditions and any applicable Product Schedules Booking Sites means websites for online travel agents, distribution agents, global distribution services, wholesale travel agents and others through which a potential hotel guest can view, compare or reserve hotel accommodation and related goods and services. Business Day means a day that is not a Saturday, Sunday or public holiday. Commencement Date has the meaning given in clause 2.1. Confidential Information of a party means any information marked as confidential or which by its nature the other party knows or ought to know is confidential (regardless of the form of the information and when it was acquired) and includes trade secrets, technical knowledge, concepts, designs, plans, precedents, processes, methods, techniques, knowhow, innovations, ideas, procedures, research data, financial data, databases, personnel data, computer software and programs, customer and supplier information, correspondence and letters and papers of every description including all copies or extracts of same relating to the affairs or business of the party. Control in relation to an entity, means the capacity to determine the outcome of decisions about the entity’s financial and operating policies. Consequential Loss means:
Customer Software Application means any software used by the Customer to manage bookings, including any property management system or central reservation system, but excluding any Direct Hotels Software. Customer Users mean officers, employees, agents, contractors or representatives of the Customer. Data Protection Requirements means any applicable legislation, regulation, statute or order which may apply from time to time relating to the collection, storage and use of Personal Information including (without limitation) the Australian Privacy Act 1988 (Cth), the Australian Privacy Principles, the UK Data Protection Act 1998, the European Union General Data Protection Regulation as and when it comes into force and for as long as it is in force, the EU Data Protection Directive 95/46/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Data Protection (Processing of Sensitive Personal Data) Order 2000 and comparable laws, as the case may be in the applicable jurisdiction, or any amendments and/or re-enactments thereof. End User means a person who acquires a service from the Customer that is a resupplied version or a derived version of a Product or Service supplied to the Customer by Direct Hotels. End User Details means all information about the End Users in the Customer’s possession or control including, but not limited to, full name, billing address, street address and, if applicable, details of ordered and supplied Services. Fault means any fault which renders a Product inoperable. Fees means the fees payable by the Customer to Direct Hotels for Products or Services provided under this Agreement, as specified in a relevant Sales Order Form. Force Majeure Event means any act, event or cause which prevents a party from performing, or delays the performance of, any of its obligations under this Agreement, to the extent that the act, event or cause is beyond the reasonable control of the affected party, including (without limitation):
Government Agency means any government or any public, statutory, governmental (including a local government), supra-governmental, semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute. GST means goods and services tax, or any comparable sales or value added tax or similar tax on sales or supplies in any applicable jurisdiction. Guest means a guest at a Customer’s property. Hotel Data means all data relating to Customer’s hotels, including (without limitation) room rates, room types, room availability, rate plans, restrictions, occupancy, Guest data, reservations, images and content. Insolvency Event means in relation to a party:
Intellectual Property Rights means all intellectual property rights, including the following rights:
Interest Rate Rate means 5% above the base cash rate of the Reserve Bank of Australia from time to time. PCI DSS means the Payment Card Industry Data Security Standard issued by the Payment Card Industry Security Council from time to time and available at: https://www.pcisecuritystandards.org/document_library?document=pci_dss Personal Information has the meaning given in the Privacy Act 1988 (Cth) as amended from time to time. Product means a product supplied by Direct Hotels including (without limitation) Direct Hotels “Channel Manager”, Direct Hotels “The Booking Button”, Direct Hotels “Little Hotelier”, Direct Hotels “Prophet” and Direct Hotels “Canvas”, each as more particularly specified in the relevant Product Schedule. Product Schedule means a schedule describing the specifications and functionality of each Direct Hotels Product, as updated from time to time, which are available on the Website. Registration Form means the application form completed by a Customer to commence a free trial of a Product. Related Bodies Corporate means in relation to any entity, a company that Controls the entity, a company that is under the Control of the entity, or is Controlled by the same company that Controls the entity. Sales Order Form means an order form or other communication between Direct Hotels and the Customer which details the Products the Customer has ordered. ServiceServicemeans the supply of one or more Products and may also include any of the following:
Direct Hotels means: Direct Hotels Infrastructure means any property or equipment (including computer hardware and software, electronic interfaces, platforms, databases, text, images, sounds, videos and other content) owned or used by Direct Hotels which enable the Customer to access or use the Products. Direct Hotels Software means all software in the Products and/or Direct Hotels Infrastructure. Supplier Failure means a failure of any equipment, product or service supplied to Direct Hotels by a third party which is required by Direct Hotels to perform its obligations under this Agreement. Third Party EULA means in respect of any Third Party Software, the licence terms which the Customer must comply with when using that Third Party Software. Third Party Software means any software owned by a third party that Direct Hotels uses or makes available to the Customer in connection with the supply with a Product or Service. Third Party Software Owner means the owner of Third Party Software. Trial Period Period means an initial period of 30 days commencing on the issue of a username and password to the Customer.
Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise:
This Agreement commences on the earlier of:
This Agreement continues to apply as long as Direct Hotels continues to provide one or more Products or Services to the Customer, or otherwise terminated in accordance with clause 13.
This Agreement commences on the earlier of:
The licence in clause 3.1 is granted subject to the following conditions:
Direct Hotels represents and warrants that:
Direct Hotels warrants that it is PCI DSS compliant and must remain compliant for the duration of this Agreement. Direct Hotels must store, process and transmit all cardholder data in accordance with the PCI DSS.
The Customer must not, and must ensure that any Customer User, End User or other third party to whom access has been granted by the Customer does not, modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Direct Hotels Software or Third Party Software.
Direct Hotels may suspend or terminate access to any Products or Services in the event of any breach or suspected breach of this clause 3.
The Customer acknowledges that in assessing the application, Direct Hotels may request additional information to verify the Customer’s identity and the size and scale its business, from the Customer or a third party (for example, a credit agency). The Customer expressly agrees to provide any information reasonably required for that purpose and authorises Direct Hotels to contact any such third party to obtain relevant information.
Once Direct Hotels has approved the Customer’s application, Direct Hotels will issue the Customer with a username and password to access the applicable Products. The Customer must not disclose the username or password to any person (other than Customer Users) without the express authorisation of Direct Hotels.
The Customer must maintain adequate security to ensure that no unauthorised person gains access to its username and password. The Customer is solely liable for any data input into the Direct Hotels Infrastructure by any person using the Customer’s assigned username and password (whether authorised or not). Direct Hotels expressly disclaims any liability in respect of any loss or damage suffered or incurred by the Customer as a result of incorrect data input into the Direct Hotels Infrastructure or use of the Products by any person using the Customer username and password and indemnifies Direct Hotels in respect of any loss liability incurred by Direct Hotels in respect of any unauthorised use or access.
The Customer is entitled to use the relevant Products for the Trial Period free of charge. If the Customer does not wish to continue to use the Services after the end of the Trial Period it must terminate this agreement by written notice to Direct Hotels at least one week prior to the end of the Trial Period. If the Customer does not terminate the Services in writing, Direct Hotels will commence charging for the Services acquired by the Customer from the day after the last day of the Trial Period (Billing Commencement Date) and the Customer agrees to pay for the Products and Services supplied from the Billing Commencement Date.
Direct Hotels must invoice the Customer monthly in advance for Fees due under this Agreement in respect of Services to be provided in that month. The Customer must pay the invoiced Fees within 7 days of the invoice date in cleared funds without set-off, counterclaim or deduction of any kind including in respect of taxes, levies, imports, duties, charges (including intermediary bank charges) or fees.
Direct Hotels may suspend overdue accounts without notice to the Customer. A reinstatement charge applies to reactivate any suspended account once full payment has been received.
Prices payable in respect of all products and services provided under this Agreement will increase by 5% per annum on each anniversary of the Commencement Date.
The Customer must:
The Customer is solely liable for all data uploaded into the Direct Hotels Infrastructure and must ensure that all information and content provided is accurate and up to date. Direct Hotels expressly disclaims any liability resulting from the publication of any inaccurate, defamatory, false or misleading information and the Customer indemnifies Direct Hotels in respect of any loss, cost, damage or other liability incurred as a result of such data being included or available in a Product.
Direct Hotels may, upon reasonable notice, without liability and with immediate effect suspend a Service for as long as Direct Hotels, acting reasonably, considers it necessary to comply with any law, protect any person, or equipment, or enable authorised persons to attend to any emergency, or to prevent any flooding of data or other action of the Customer or End Users which is causing Direct Hotels Infrastructure to perform at a reduced level.
The Direct Hotels support team will deal directly with the Customer’s centralised support function regarding basic configuration changes for accommodation providers and otherwise will provide basic support enquiries during local business hours.
The Customer must perform all room mappings through the Channel Manager interface for all channels that are enabled for dynamic room mapping. Direct Hotels must perform activation of all new channels and room mappings for channels that are not enabled for dynamic room mapping.
The Customer is liable for all costs incurred by Direct Hotels in restoring a Service where the Fault arises as a result of:
Direct Hotels shall:
The Customer acknowledges that the collection, use and storage of Personal Information of the Customer, Customer Users and Guests is necessary to enable Direct Hotels to perform its obligations under this Agreement and for:
Direct Hotels must at all times comply with its Privacy Policy, available on the Website.
Each party (Recipient) which receives Confidential Information of the other party (Disclosing Party) under this Agreement acknowledges that all Confidential Information provided to it or to which it is exposed is confidential to the Disclosing Party.
The Recipient acknowledges and agrees that the Confidential Information is, by virtue of its special nature, valuable property of the Disclosing Party and that the Disclosing Party may suffer damage or loss by any disclosure by the Recipient of the Confidential Information.
The Recipient must:
The Recipient may disclose Confidential Information if required to do so by a Government Agency or any law or court order, or the rules of any applicable securities exchange after first giving notice to Disclosing Party and after taking all practicable steps to cooperate with Disclosing Party to prevent the disclosure to the maximum extent permitted by law.
Each party may disclose Confidential Information to any of its employees, contractors, or advisers on a need to know basis as long as each such recipient is bound by an obligation of confidence substantially the same as contained in this Agreement.
Direct Hotels may acknowledge that the Customer is a customer of Direct Hotels and use the Customer’s logo (in accordance with Customer’s reasonable guidelines provided by the Customer to Direct Hotels) in any press release, marketing, sales, or stock exchange reporting materials. Any other reference to the Customer by Direct Hotels requires the Customer’s prior written consent.
The Customer acknowledges and agrees:
The Customer grants Direct Hotels the right to use its Hotel Data.
By executing this Agreement or by otherwise accessing and using Third Party Software, the Customer acknowledges and agrees that it has read and agrees to be bound by the terms of each Third Party EULA which contain the terms and conditions which apply to the use by the Customer of the Third Party Software. The Customer acknowledges and agrees that if the EULA is terminated, Direct Hotels may terminate the relevant Service without notice.
Without limiting clause 12.1, the Customer acknowledges and agrees that:
This Agreement remains in force for the duration of the Term unless earlier terminated in accordance with this clause 13.
Either party may terminate this Agreement:
Direct Hotels may terminate this Agreement immediately:
In addition to the right to terminate this Agreement under clause 13.2(a), if the Customer fails to make a payment due under this Agreement when called upon to do so, Direct Hotels may do any one or more of the following either instead of, or in addition to, terminating the Agreement:
On termination of this Agreement:
Where any failure or delay by a party (Affected Party) in the performance of its obligations (excluding payment obligations) under this Agreement is caused, directly or indirectly, by a Force Majeure Event:
If the Force Majeure Event continues for more than 30 consecutive days and while it continues, either party may terminate this Agreement by giving written notice to the other.
Unless expressly stated to the contrary in this Agreement, neither party is liable to the other for any Consequential Loss however caused in connection with or related to this Agreement or the otherwise in respect of the Services.
All terms, conditions or warranties which may be implied into this Agreement are excluded to the fullest extent permitted by law.
Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty is deemed to be included. The liability of Direct Hotels for any breach of such condition or warranty is limited, at the option of Direct Hotels, to one or more of the following:
Direct Hotels indemnifies and will and hold the Customer and its Related Bodies Corporate, directors, officers, employees and agents harmless from and against all losses, damages, liabilities, claims and expenses incurred (including but not limited to reasonable legal costs and defence or settlement costs) arising as a result of any claim that the Direct Hotels Software, or the Customer’s use of the Direct Hotels Software, infringes, or allegedly infringes, the Intellectual Property Rights of a third party (Indemnity Claim).
Direct Hotels has no liability in respect of an Indemnity Claim under clause 16.1 unless the Customer complies with the following conditions:
The parties must exhaust the following provisions before initiating any legal proceedings in court.
Nothing in this clause 17 prevents any party from seeking urgent interlocutory relief from a court at any time.
This clause 18 applies only to Customers who resupply Products or Services.
Nothing in this clause 17 prevents any party from seeking urgent interlocutory relief from a court at any time.
The Customer:
The Customer must not use Direct Hotels’s logo or refer to Direct Hotels except with Direct Hotels’s prior written consent in accordance with any directions or guidelines provided by Direct Hotels.
Neither party may assign, charge or deal with any of its rights and obligations under this Agreement or attempt or purport to do so, without the prior written consent of the other party, which must not be unreasonably withheld or delayed.
If a change in Control occurs in respect of the Customer or the Customer sells a property which is receiving Services under this Agreement, Direct Hotels may terminate the Agreement, or the provision of any Service, at any time without notice. If the Customer wishes to transfer the Agreement to a new owner of its business or property, it must make a request in writing to Direct Hotels to do so. The Customer remains liable under this Agreement until Direct Hotels agrees in writing to such a transfer.
Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to this Agreement. Each party acknowledges that it has obtained legal advice, or had the opportunity to obtain legal advice, in connection with this Agreement.
Except to the extent expressly provided in this Agreement, this Agreement may not be amended or varied except in writing signed by both parties.
Each attorney and any other individual executing this Agreement on behalf of a party warrants that he or she has full and proper authority to do so and is not aware of any revocation or suspension of the relevant power of attorney or other authorisation.
If the Customer enters this Agreement on behalf of more than one party, such that multiple parties receive Services under this Agreement, each party shall be jointly and severally liable in respect of all Services so provided.19.10 Whole agreement In relation to the subject matter of this Agreement:
In relation to the subject matter of this Agreement:
In entering into this Agreement, each party acknowledges that:
If any part of this Agreement is legally unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.
Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that Direct Hotels may have against the Customer or any other person at any time.
The parties agree that this Agreement does not create any relationship of partnership or employment, franchise, joint venture or agency and that Direct Hotels is an independent contractor.