VANUATU BOOKING SYSTEM
TERMS AND CONDITIONS
Vanuatu Booking System ("VBS") provides tour and activity, accommodation and restaurant online booking software comprising inventory management software, customer relationship management software, sales and distribution software, accounting management software, its website, help resources, user interfaces, user manuals and documentation, Intellectual Property rights, in object code form and any related technology as updated from time to time ("VBS Software") to its customers, to enable them to receive online bookings from third party user/customers of businesses that offer tourism and other related services online or who wish to use the Customers Serivces.
This agreement ("Agreement") binds you or the entity you represent ("you") if are a provider of tours, tickets, activities, entertainment transportation and/or other goods and/or services and you use the VBS Software. This Agreement contains the terms and conditions that govern your access to and use of the VBS Software and Services and is made between VBS and you. This Agreement commences on the Commencement Date. You represent that you are legally entitled and able to enter into this Agreement and, where you are signing up on behalf of another legal entity, that you have the legal authority to bind that entity.
At all material times VBS is the disclosed agent of you to third party user/customers that provides an online tool that connects you to the third-party user/customers. In doing so, VBS has no further involvement after the transaction between you and third party user/customers is booked using the VBS Software and you are totally responsible for all ongoing dealings/complaints/requests for changes/ refunds made thereafter.
1. SOFTWARE LICENCE
Upon entering into this Agreement, we grant you a limited, revocable, non-transferable and non-exclusive licence to access and use the VBS Software only in accordance with this Agreement and for the purpose of:
(a) managing your business inventory;
(b) managing your customer database; and
(c) processing electronic bookings by your customers, subject to the terms and conditions of this Agreement.
Other than the use of the VBS Software, you must not use any application, program, software, Intellectual Property or any other service that has a function materially similar to the VBS Software (whether in whole or in part) during the term of this Agreement.
Your rights in the VBS Software are limited to those expressly granted in this Agreement. We reserve all rights and licences in and in relation to the VBS Software not expressly granted hereunder. As between us and you, the Application (and all copies thereof) and all Intellectual Property rights therein or relating thereto, must remain the exclusive property of VBS or its licensors.
1.4 Marketing and Publicity
You hereby grant us a limited, revocable, non-exclusive, non-transferable, royalty-free license, to use your trade name, logos and trademarks in our advertising, marketing and promotional materials and activities including on our websites and social media sites, and in presentations, case studies, trade show materials, and other advertising, marketing and promotional media and collateral, during the term of this Agreement (including any extensions and renewals hereof) including to be publicly named as a client of VBS (i.e. we can name you and display your logo as a user of the VBS Software).
2. DISTRIBUTION CHANNELS
If you use the Agent 3rd Party Distribution Services provided by VBS, the terms of the Supplier Agreement apply to you in respect of the Distribution Services and govern that arrangement.
3. YOUR ACCOUNT
To access the VBS Software you must register with us by creating an account. You will then be required to activate Your Account by providing us with your bank account details and any other details required by us.
Your Account is activated shortly after the set up fee is paid.
You agree to facilitate the setup and activation of the VBS Software and Your Account and must provide us with access to Your Account and hardware used to access Your Account, whether on-site or through remote facilities, and to any of your computer or electronic data storage system or those of its third party contractors, if applicable, in order for us to perform any of its obligations pursuant to this Agreement.
3.4 Your information
If you are registering on behalf of a company, you represent and warrant that you have the requisite authority to register on behalf of that company. You are responsible for ensuring that all information provided to us (including the information stored in Your Account), remains complete and up to date.
3.5 Username and password
Once you have registered, we will provide you with a username and password. You are responsible for the security of your password and all activity on Your Account (whether or not undertaken by you) and you must ensure that there is no unauthorised access to Your Account.
You must ensure that all data uploaded by you using Your Account is true, correct, accurate and up to date at all times.
VBS will use firewalls and other technology generally used in the trade to prevent unauthorised third party access to its computer systems storing Your Account data as well as available encryption technology generally used in the trade to prevent unauthorised third party access. Notwithstanding the foregoing, VBS is not be liable to you in the event that its use of firewalls and other technology generally used in the trade fails to prevent unauthorised third party access to Your Account data or its website generally or its use of encryption technology generally used in the trade fails to prevent unauthorised third party access.
4. USE OF THE SERVICES
You agree not to:
(a) allow access to or use of the VBS Software by anyone other than you and your representatives;
(b) create internet "links" to or from the VBS Software, or "frame" or "mirror" any content forming part of the VBS Software other than your own intranets or otherwise for its own internal business purposes
(c) build a competitive product or service or build a product or service using similar ideas, features, functions or graphics of the VBS Software;
(d) copy any ideas, features, functions or graphics of the VBS Software, except in each case such use for your internal purposes;
(e) copy, modify, alter or distribute the VBS Software or any other software used to provide the Services;
(f) licence, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the VBS Software available to any third party, other than as contemplated by this Agreement;
(g) reverse engineer, disassemble or attempt to derive the source code from the VBS Software or any other software used to provide the Services;
(h) upload viruses, worms, trojans, or other harmful software;
(i) interfere with or disrupt the integrity or performance of the VBS Software or the data contained therein;
(j) access or use the Services in any way intended to avoid incurring charges or exceeding usage limits; or
(k) transmit information that infringes the rights of others or is abusive, pornographic, violent, racist, discriminatory, defamatory, harassing or threatening.
5. THIRD PARTY CONTENT
We may make third party content such as software applications, website links or communication forums (including but not limited to online bulletin boards, chat forums, news groups or any other communication forum) available from time to time at our discretion ( "Third Party Content"). Any Third Party Content is owned by the party contributing that content.
5.2 Your content
As a user of any communication forum you are responsible for your content. By transmitting content on any such forum you represent and warrant that you have all rights and authority necessary to post, submit, display, produce or otherwise transmit the content and you agree that you will not submit material that is or contains third party Intellectual Property unless you have authority to use it.
You agree that any content transmitted on a communication forum is not confidential. By submitting any material in any forum you grant us an irrevocable right to use, reproduce, distribute, modify or display the material in connection with the VBS Software or Services. You represent and warrant that you have all rights and authority necessary to grant these rights unconditionally
We are entitled to delete or remove any material placed by you on any communication forum that we, in our sole discretion and for any or no reason, deem inappropriate.
Third Party Content is not controlled, monitored, tested or endorsed by us and use of any Third Party Content is at your own risk. We are not be liable for any damage, costs, claims or liability incurred as a direct or indirect result of your use of the Third Party Content and you unconditionally and irrevocably release us form any such claims .
6. YOUR RESPONSIBILITIES
You are responsible for:
(a) the development and maintenance of Your Content and ensuring your Content us accurate and up to date;
(b) configuring and using the VBS Software;
(c) protection and backup of all Your Content;
(d) ensuring that all your product or service information, including availability and pricing information, is kept current at all times;
(e) ensuring that you can fulfil all reservations, bookings or purchases made online and for communicating any changes directly with your customers;
(f) compliance with any applicable laws and VBS policies; and
(g) any claims relating to Your Content, including but not limited to any infringement of Intellectual Property rights claims; and
(h) any claims by a third party user/customer of yours that uses the VBS Software to book an online tour or service advertised by you that for any reason whatsoever was not supplied/changed and you agree that VBS does not act in any manner whatsoever as your agent/ representative to a third party user/customer or will be required to deal with any claim, complaint, request for refund, request for changes to the tour/service, and further you are totally liable for all claims for payment made by a third party user/customer arising from or incidental to such.
We may, from time to time and in our sole discretion, release modifications or upgrades to the VBS Software but are under no obligation to do so. You consent to us modifying or upgrading the VBS Software without your knowledge.
You acknowledge that from time to time we may be required to undertake scheduled or unscheduled maintenance and this may cause interruptions to the Services. You may not be able to process bookings using the VBS Software during this time or otherwise access our website. Where practicable we will provide you with at least 2 days' notice in respect of any scheduled maintenance period or upgrade. Any general maintenance periods will be specified on our website.
7.3 No warranty
VBS does not warrant or guarantee that:
(a) the VBS Software will meet your requirements and expectations;
(b) the VBS Software will be compatible with, or capable of being used on or in connection with, your computer and communications systems;
(c) your access to the VBS Software will be uninterrupted or error free; or
(d) the VBS Software will be accurate, reliable or fit for any particular purpose.
8.1 Pay monthly
If you have elected to pay monthly, payment of all fixed monthly Service Charges are payable in advance on the Due Date. All Usage Charges are payable monthly in arrears. We will issue you with a tax invoice for the charges on a monthly basis.
8.2 Pay annually
If you have elected to pay annually in advance, an amount equal to the Service Charges for a 12 month period is payable upon entry into this Agreement. All Usage Charges are payable monthly in arrears. We will invoice you for the initial 12 month payment and will issue further invoices as necessary in respect of any Usage Charges.
You authorise us to debit all amount payable under this Agreement from your Business Revenues made through your VBS account and then transferring you the balance of these Sales to your nominated bank account.
All fees and charges quoted are inclusive of VAT and any other applicable taxes or duties. You are liable for any applicable taxes, rate, levy, impost, duty, interest, penalty, fine or other expense in relation to the Services and the amounts paid to you in respect of the Services.
All charges paid to VBS by you are non-refundable in all circumstances, including but not limited to any Service Charges paid in advance.
We may suspend your access to the Services and/or Your Account if we determine, acting reasonably:
(a) you are in breach of this Agreement;
(b) payment has not been made within 30 days of the Due Date;
(c) you are using the Services in a manner not permitted under this Agreement;
(d) it is reasonably necessary for repair or maintenance of the Services or our website;
(e) the Services are being used illegally or fraudulently; or
(f) your use of the Services, in our opinion, acting reasonably, poses a risk to the VBS Software or to VBS and its business generally, and Service Charges will continue to accrue during a suspension imposed by us.
10. TERM AND TERMINATION
This Agreement applies from the Commencement Date until the date it terminates in accordance with its terms and, any term as set out below and any other period during which you are using or have access to the Services.
10.2 General termination
The term of this Agreement will commence on the Commencement Date for a 12 month period. Either party may terminate this agreement by providing 30 days written notice at any time during the 12 month period, and provided all money due and payable to VBS has been paid then this Agreement ends. If this Agreement is not terminated before the end of its then current term, it will automatically renew at the end of each term for a further 12 month period.
10.3 Termination by VBS
Notwithstanding any other clause of this Agreement, VBS may terminate this Agreement (and your access to the VBS Software) by notice to you with immediate effect if:
(a) you fail to pay in full the charges due under this Agreement within 30 days of the Due Date;
(b) you have caused a material breach of this Agreement;
(c) you have breached this Agreement and the breach is not capable of remedy, or, where the breach is capable of remedy you have failed to rectify that breach within 30 days of receipt of a notice from VBS requiring you to do so;
(d) your use of the VBS Software or the Distribution Services is in breach of or in connection with a breach of the law; or
(e) VBS is unable to continue providing the Services due to a change in our relationship with our suppliers or Distribution Channels.
10.4 Termination for insolvency
VBS may terminate the Agreement with immediate effect by written notice if the other party becomes, is likely to become or resolves to become subject to any form of external administration, winding up, creditors partition, deed of arrangement or any other analogous insolvency event.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Intellectual property warranties
You represent and warrant that:
(a) you or your licensors own all right, title and interest in and to Your Content and you have the right to use Your Content in the manner it is used in respect of your VBS account, our website and this Agreement;
(b) you have sufficient rights in Your Content to enter into and grant the rights provided for in this Agreement; and
(c) Your Content does not infringe any third party Intellectual Property rights.
You acknowledge that we or our affiliates or licensors own all rights, title and interest in and to the VBS Software and all Intellectual Property rights therein or relating thereto (including but not limited to any images, photographs, videos, audio and text incorporated into the VBS Software) and your rights in the VBS Software are limited to those expressly granted in this Agreement. VBS reserves all rights and licences in and in relation to the VBS Software not expressly granted to you hereunder. As between you and VBS, the VBS Software (and all copies thereof) and all Intellectual Property rights therein or relating thereto, must remain the exclusive property of VBS or its licensors.
12. LIABILITY AND INDEMNITY
The exclusions and limitations in this clause, apply subject to any rights you may have under such laws.
12.2 Warranty exclusion
To the extent permitted by law, all express or implied representations, conditions, warranties, guarantees or other provisions that are not contained in this Agreement (whether based in legislation, the common law or otherwise) are excluded, including any representations, conditions, warranties or guarantees as to acceptable quality, fitness for purpose or timeliness.
12.3 Warranty limitation
If any condition, warranty, guarantee or other provision is implied or imposed in relation to the Agreement (whether based in legislation, the common law or otherwise) and cannot be excluded (a Non-Excludable Term), and we are able to limit your remedy for a breach of a Non-Excludable Term, then our liability for a breach of a Non-Excludable Term is limited to (at our option):
(a) the re-supply of the Services; or
(b) the payment of the cost of resupplying the Services.
Subject to our obligations under the Non-Excludable Terms, and to the maximum extent permitted by law, we are not liable to you in tort, contract or otherwise for any loss of profits, data, goodwill, pure economic loss, or expectation loss, or other indirect, consequential, special, punitive or exemplary loss or damage, even if such loss or damage was reasonably foreseeable, arose naturally or was contemplated by the parties.
12.5 Liability limitation
If, notwithstanding the preceding provisions of this clause 12, we are liable to you in relation to the Services or the Agreement, our liability is limited to a sum equal to the total amount paid by you under the Agreement in the period 12 months prior to the date of the liability arising.
Notwithstanding any other provision of the Agreement, you are liable to us, our affiliates and licensors (including each of their directors, employees, agents, and representatives) for and indemnify us against any loss, damage, claim, proceeding and cost (including all legal costs on an indemnity basis), including as a result of any third party claim against VBS, arising out of or directly or indirectly connected with:
(a) the use or attempted use of the VBS Software or Services;
(b) Your Content, including any claim involving alleged infringement or misappropriation of third party rights in Your Content or the use, development, advertising or marketing of Your Content; and
(c) any breach of this Agreement.
12.7 Contributory liability
Our liability to you under this Agreement is reduced to the extent that such liability was caused by you, your employees, subcontractors and authorised representatives or a related body corporate.
13.1 General confidentiality
You acknowledge that the design, specification and content of the VBS Software, the terms upon which the VBS Software and Services are being supplied and all pricing and product information provided by us (except to the extent such information is publicly available) constitutes commercially sensitive and confidential information of VBS.
You may use our confidential information only as permitted in accordance with this Agreement and must take all necessary measures to avoid disclosure, dissemination or unauthorised use of our confidential information. You agree not to disclose any information provided by VBS that is designated as confidential or you should know is confidential to any third party without our prior written consent from VBS, unless you are legally compelled to do so, and provided that, where practicable you first provide notice to VBS.
14.1 Notices generally
All notices required to be given pursuant to this Agreement must be given in writing in accordance with this clause.
14.2 Notices to you
We may provide any notice to you under this Agreement by:
(a) posting a notice on our website; or
(b) sending an email to the email address then associated with Your Account.
14.3 Website notice
Notices we provide by posting on our website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with Your Account when we send the email, whether or not you actually receive the email.
14.4 Notices to us
You may provide us notice under this Agreement by email to email@example.com. We may update the email address for notices to us by notice to you.
14.5 No objection
No objection may be made to the manner of delivery of any notice actually received in writing by your authorised agent.
VBS may, in its sole discretion, modify any of the terms and conditions contained in this Agreement, including but not limited to monthly Service Charges and other charges, at any time, with your consent or by notice to you. It is your responsibility to check the VBS website regularly for any amendments to this Agreement. The amended terms will become effective on the earlier of, the date you agree to the terms, the date they are posted on our website or otherwise the date the terms are deemed to be received by you in accordance with the notice provisions. By continuing to use the Services after the effective date of any amendment to this Agreement, you agree to be bound by the amended terms.
15.2 No fee changes
If you have paid for the Services in advance, no pricing changes will take effect until the end of the prepaid period.
16. FORCE MAJEURE
16.1 No liability
Notwithstanding any other clause of this Agreement, neither party will be liable to the other party for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond that party's reasonable control, including acts of God, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, embargos, riots, acts or orders of government, acts of terrorism or war ( Force Majeure Event).
Each party's obligations to the other party will be suspended to the extent of the Force Majeure Event, other than your payment obligations contained in clause 8. If a Force Majeure Event prevents a party from discharging its obligations under this Agreement for a period exceeding 60 days, the other party may terminate this Agreement by providing 30 days written notice.
17.1 Entire agreement
This Agreement contains the entire agreement and understanding between the parties with respect to its subject matter. Each party acknowledges that it has not relied on any previous negotiations or representations (express or implied) except as set out in this Agreement. All prior negotiations or representations are excluded to the maximum extent permitted by law.
You may only assign or deal with your rights under this Agreement with VBS's written consent. VBS may at any time without your consent, by notice to you, assign or deal with its rights under this Agreement.
If any part of this Agreement is held to be invalid or unenforceable, then the invalid or unenforceable section will be severed and the remainder of this Agreement will remain in full force and effect.
The failure by a party to enforce any provision of this Agreement will not constitute a continuing waiver of that provision or a waiver of any other provision, unless expressly provided in writing by an authorised representative of that party.
All clauses which are either expressly or by implication intended to survive termination will continue to apply after termination including clauses 5, 11, 12 and 13.
This Agreement is governed by the laws of Vanuatu and both parties irrevocably submit to the exclusive jurisdiction of the courts of Vanuatu.
In this Agreement, unless the context otherwise requires:
"Commencement Date" means the earlier of the date that you accept the terms and conditions of this Agreement or the date that you start using the Services.
"Distribution Channel" means any distributor in the business of selling or promoting tours or activities and listed on the VBS website from time to time.
"Distribution Services" means the services through which VBS provides your selected Distribution Channels with access to your inventory.
"Due Date" means each monthly anniversary of the Commencement Date, unless your Commencement Date falls on the 28 th to the 31st of a calendar month, in which case your anniversary will be the last day of each subsequent month.
"VAT" means any applicable Value Added Tax or any similar tax.
"Intellectual Property" means any invention, designs, copyrights, data, know-how, concepts, ideas, process, patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto.
"Supplier Agreement" means the agreement titled 'supplier agreement' entered into between you and us.
"VBS" ("we", "us" or "our") means L.I.I.T Ltd T/AS Vanuatu Booking System and includes VBS employees, contractors and any related bodies corporate.
"Service Charges" means the fees payable in respect of the Services which are described as 'service charges' and outlined at the URL: www.vbs.vu as updated from time to time.
"Services" means the Services provided by VBS to you, which may include but is not limited to access to the VBS Software and Distribution Services.
"Usage Charges" means any usage charges applicable to the Services and calculated on a monthly basis, including but not limited to fees for processing online bookings placed through the VBS Software in excess of any applicable online booking allowance, all of which are described as 'usage charges' and outlined at the URL: www.vbs.vu, as updated from time to time.
"Your Account" means the online VBS account you create to access the VBS Software and store Your Content.
"Your Content" means any software, data, text, audio, video, images or other materials uploaded onto the VBS Software using Your Account, or otherwise processed, used or stored in connection with Your Account.