If
you are a licensed user of AVY Systems check your current license agreement for
specific details on agreed fees and other terms.
AVY
SYSTEMS
PROPERTY OWNER LICENSE AGREEMENT
Copyright Exotic Properties Ltd 2003.
This License Agreement (this “Agreement”)
has been made between Exotic Properties Limited and the Property Owner (the
“Owner”) licensed to use the AVY Systems availability and booking software.
WHEREAS:
Exotic
Properties has developed a web based vacation villa, apartment and yacht
charter booking system known as “AVY Systems” (the “Booking System”). The Owner has obtained a license to use the
Booking System. Exotic Properties is willing to provide Owner with a license to
use the Booking System upon the terms and conditions of this Agreement.
1.1 Grant. Exotic Properties grants to the Owner a
nonexclusive, revocable license (the “License”) to use the Booking System, and
all associated software, documentation, manuals, materials, data, codes, and
all other information and materials specified by Exotic Properties from time to
time, (collectively the “Licensed Material”), on the terms and conditions set
out in this Agreement, for the sole purpose of promoting and accepting vacation
rental bookings for the Owner’s Property (the “Permitted Use”).
1.2 Fee. In consideration of Exotic Properties
granting the License to the Owner, the Owner shall pay Exotic Properties the
Fee (plus any applicable taxes) described in the Application. The Owner acknowledges that the fee in
respect of any future license of the Licensed Materials it may acquire, may be
more or less than the Fee, in the sole discretion of Exotic Properties.
1.3 Term. Subject to clause 6.2, the License shall
commence on the date set out in the Application and shall continue for twelve
(12) months unless terminated earlier in accordance with this Agreement. The
License may be extended for further twelve month periods by the Owner by
payment of the fee for the Licensed Materials being charged by Exotic
Properties at the time of the extension.
1.4 Back-up
Copy. The Owner may make one (1)
copy of the Licensed Material, but solely for use as back-up, and for no other
purpose. Except as aforesaid, the Owner
shall not reproduce, copy, duplicate or distribute the Licensed Material, or
any component of the Licensed Material, without Exotic Properties’ prior
written consent.
1.5 Retention
of Rights. Exotic Properties
reserves the right to use all or any portion of the Licensed Material in any
manner, and/or license, assign, convey, transfer, sell or otherwise alienate
all or any portion of the Licensed Material to any third party.
The Owner acknowledges that Exotic
Properties has the exclusive proprietary, ownership and (except for the
License) use rights to all the Licensed Material and:
(i)
all technical
data or written material concerning the Licensed Material, including all
designs, plans, illustrations, specifications, flow charts, diagrams, manuals,
documentation, trademarks, trade names, service marks, patents and copyrights
(if any, whether or not registered);
(ii)
all
know‑how or techniques concerning the Licensed Material; and
(iii)
all
inventions, discoveries, integrations, object codes, source codes, software and
future modifications, enhancements or improvements of, in or to the Booking
System or any Licensed Material (“Product Modifications”), including those
which the Owner may conceive or originate either on its own or jointly with the
assistance of others.
Exotic
Properties, in its sole discretion, shall determine which (if any) of the
foregoing items it will deliver and/or make available to the Owner.
3.1 Liens,
Assignment. The Owner shall keep all
the Licensed Material free of any liens, claims or encumbrances of any type,
and may not rent, lease, sell, sublicense, assign or otherwise transfer the
Licensed Material or any part of it at any time.
3.2 Confidentiality
of Trade Secrets. The Owner
acknowledges that all information, know-how and data which it acquires from
Exotic Properties concerning the application, development, technical
specifications or use of the Licensed Material, as well as the other items
concerning the Licensed Material that are identified in clause 2.1 above (other
than those which are in the public domain), are highly confidential and
constitute trade secrets of Exotic Properties (the “Trade Secrets”). The Owner agrees that during the term of this
Agreement and following the termination of this Agreement or the License for
any reason, the Owner shall not directly or indirectly:
(i)
sell, alienate,
transfer, assign, disclose or divulge Trade Secrets to any person or entity,
nor permit any other person to do so, without Exotic Properties’ prior written
consent; or
(ii)
use
Trade Secrets or any information relating to Trade Secrets in or for the
benefit of any individual, business, profession, association, partnership,
corporation, limited liability company, joint venture or other endeavor,
without Exotic Properties’ prior written consent.
3.3
Title
Protection. The Owner covenants that it shall not claim,
attack, compromise, file suit against or commit or fail to take any action
which could impair any of Exotic Properties’ rights, titles or interests in the
Licensed Material. The Owner shall not
attempt to develop any software similar to the Booking System or any Licensed
Material through reverse engineering, disassembly, decompilation or any other
method.
3.4 Indemnity. The Owner defends, indemnifies and holds
harmless Exotic Properties from all liabilities and reasonable expenses,
judgments, fines or penalties which Exotic Properties may incur that result
from any claims, actions, suits or proceedings that arise due to actions of
Owner which constitute a breach of Owner’s representations, warranties or
obligations under this Agreement.
3.5 Survival
of Covenants. The Owner’s obligations
under this clause 3 shall survive the termination of this Agreement or any of
this Agreement’s provisions, for any reason.
4.1 Exotic Properties’ Warranties. Exotic Properties warrants that it has the
right to enter into this Agreement and deliver the Licensed Material to the
Owner. The foregoing warranty is for the
sole benefit of Owner, and not for any third party. Except as expressly provided herein, all other
warranties, representations and statements (whether express or implied, oral or
written, arising by trade usage, statutory or otherwise) concerning the
Licensed Material are excluded. In particular Exotic Properties does not
warrant that:
(i)
the
Licensed Material is error free;
(ii)
the
use of the Licensed Material will be uninterrupted for any reason;
(iii)
the
Licensed Material will meet the Owner’s requirements or is fit for any
particular purpose; or
(iv)
any
perceived defects in the Licensed Material will be corrected.
4.2
Owners’
Warranties and Covenants. The Owner warrants and covenants that:
(i) it is empowered to
enter into this Agreement and carry out its obligations under this Agreement,
it has validly entered into this Agreement, and this Agreement is binding on
the Owner after execution; and
(ii) it has and will
have at all times during the License, the right to enter into legally binding
agreements for the lease or licensing of the Property, in particular in
accordance with the Booking Option procedure selected in the Application.
5.1 Waiver
of Damages and Remedies. Exotic
Properties disclaims and shall not be liable for, and the Owner waives any
claims or remedies the Owner may have against Exotic Properties for direct,
indirect, special, consequential, incidental or punitive damages of the Owner
or any other individual or entity, including but not limited to damage arising
from lost profits, customer claims, loss of use of any or all Licensed Material
or any equipment, software, system or facility, loss of data, lack or loss of
productivity, cost of substitute equipment, software, system or services, or
downtime costs which arise out of any breach of this Agreement by Exotic
Properties or any obligations Exotic Properties owed to the Owner, or Exotic
Properties’ breach of warranty, or which arises pursuant to any tort (including
negligence and strict liability, but excluding gross negligence or willful
misconduct) or other claim, or for any claim made against the Owner by any
other party, even if Exotic Properties has been advised of the possibility of
such claim in advance, except as set out in clause 5.3 below.
5.2 Delays.
Exotic
Properties shall not be liable for and the Owner waives any damages caused by
delay in delivery, installation or furnishing of the Licensed Material under
this Agreements.
5.3 Obligations. To the extent permitted by applicable law,
Exotic Properties’ liability in relation to the Licensed Material under this
Agreement howsoever arising will be limited at its option to:
(i)
the
replacement of any Licensed Material or part thereof;
(ii)
the
repair of any Licensed Material or part thereof; or
(iii)
the
payment of the cost of replacing or repairing the Licensed Material.
The Owner specifically waives all other remedies
available to it in law, in equity or otherwise, whether for breach of contract
or otherwise.
6.1 Log-on
Code. Exotic Properties shall
provide the Owner with one (1) unique Primary Log-on Code and up to two (2)
unique Secondary Log-on Codes (collectively the Owner’s “Log-on Codes”) for the
Booking System. The individual
authorised by Exotic Properties to use the Primary Log-on Code is the person
named in the Application as the Primary User. The individual or individuals
authorised by Exotic Properties to use the Secondary Log-on Codes are the
person or persons named in the Application as the Secondary Users. The Owner
may by 14 days notice in writing to Exotic Properties, change the nominated
Primary or Secondary Users. Subject to
this Agreement, the Owner’s Log-on Codes shall be valid for the term of the
License. The Owner shall keep it’s
Log-on Codes and associated passwords confidential and shall not directly or
indirectly disclose one or all of them to any person not a Primary User or a
Secondary User without the prior written consent of Exotic Properties.
6.2 Other Users. The Primary User and the Secondary Users shall
only access and operate the Booking System using their individual Primary or
Secondary Log-on Code (as applicable).
The Primary and Secondary Users shall keep their Log-on Codes and
associated passwords confidential and shall not directly or indirectly disclose
one or all of them to any person other than the Owner without the prior written
consent of Exotic Properties. The Owner acknowledges that if it is not the
Primary User, the License will not commence unless and until the Primary User
has agreed in writing to be bound by the terms and conditions of this Agreement
in accordance with Part Two of the Application.
Exotic Properties has the right to cancel a Primary or Secondary User’s
Log-ons when requested to do so in accordance with clause 6.1.
6.3 Booking
Confirmation Procedure. If the
Application indicates that the Owner has selected the “On Request” Booking
Confirmation System, the Primary User shall acknowledge and respond to all
booking requests or requests to change bookings within 24 hours of being notified
of the request. The Owner acknowledges
that no booking or requests to change a booking using the Booking System will
be confirmed without a response from the Primary User. If the Application indicates that the Owner
has selected the “Free Sale” Booking Confirmation System, the Owner
acknowledges that requests for bookings and requests to change bookings using
the Booking System may be confirmed automatically without further action on the
part of the Primary User, subject to the request meeting the ‘Free Sale Terms’,
as published by the Owner in the Booking System. The Owner acknowledges that
the Secondary Users are not authorised by the Booking System to confirm booking
requests or requests to change bookings.
6.4 Obligation
to Keep Booking System Up to date. The Owner shall ensure that all information
in the Booking System in relation to the Property (including the calendar) is
accurate and complete at all times, and that all bookings of the Property
(whether or not made through the Booking System) are immediately recorded on
the Booking System.
6.5 No
Third-Party Access. The Owner shall
not allow any person other than a Primary or Secondary User to use its Log-on
Codes or the Licensed Materials or any part of them in any manner whatsoever
without the prior written consent of Exotic Properties.
6.6 Agents.
Only the Primary User may by notice in writing to Exotic Properties nominate,
alter or remove agents to whom the Property will be available through the
Booking System. The Owner acknowledges
that the Property will only be available through the Booking System to those of
its nominated agents who enter into an approved license agreement with Exotic
Properties in relation to the Licensed Materials.
6.7 Confidentiality of Booking Information. Exotic Properties acknowledges that the
information the Owner enters into the Booking System in relation to bookings
for the Property may be commercially sensitive.
Accordingly, Exotic Properties agrees that it will not use any such
information or contact any client of the Property featured in such information
for its own purposes without the prior approval of the Primary User, unless
required by law.
7.1 For
Cause. The Owner’s Log-on Codes or
any one or more of them, and/or the License may be terminated at the option of
Exotic Properties at any time upon the occurrence of any of the following:
(i) the Owner
discontinues its active use of the Licensed Material;
(ii) the Owner commits a
material default under this Agreement (including but not limited to its failure
to meet any of its obligations under clause 6, or its failure to make a payment
of any amounts owing to Exotic Properties when and as the same become due);
(iii) the Owner attempts
to reproduce, sell, mortgage, lease, assign, convey, transfer or sublicense any
Licensed Material;
(iv) the Owner
voluntarily or involuntarily becomes subject to a bankruptcy proceeding, makes
an assignment for the benefit of creditors, becomes insolvent, otherwise
becomes subject to any proceeding for relief from or protection of creditors;
or
(v) the Owner ceases to
have the authority to enter into binding contractual arrangements to lease or
license the Property through the Booking System on the terms and conditions of
this Agreement.
7.2 Return
of Data. Upon the termination of
this Agreement for any reason, the Owner immediately shall return all the
Licensed Material and all records and copies thereof to Exotic Properties, and
shall not retain any copies of the foregoing items in any form whatsoever
without the prior written approval of Exotic Properties.
8.1 Updates. Exotic Properties may change the performance,
specifications, programming method and/or design of any Licensed Material from
time to time. Exotic Properties will
advise the Owner of any material changes in the Licensed Material from time to
time.
8.2 Provision of Updates. The Owner acknowledges and agrees that Exotic
Properties shall have no obligation whatsoever to update and/or provide any
enhanced, modified or updated versions of the Booking System or any Licensed
Material to Owner at any time.
8.3 Discontinuance.
Exotic Properties shall have the right, at its sole option, to
discontinue the Booking System and/or the Licensed Material at any time or from
time to time. Exotic Properties has no
obligation whatsoever to maintain any version of the Booking System of the
Licensed Material in its files. Any such
discontinuance by Exotic Properties shall not constitute a breach by Exotic
Properties of this Agreement.
9.1 Amendments. This Agreement may only be amended by the
written agreement of the parties.
9.2 Entire Agreement. This Agreement
constitutes the entire understanding of the parties and prevails over all other
representations whether oral or in writing made prior to the date of this
Agreement.
9.3 Waiver of
Obligations. No failure of Exotic Properties to
exercise any power given to it or to insist upon the strict compliance by the
Owner with any obligations or conditions and no custom or practice of the
parties or variances with the terms of this Agreement shall constitute a waiver
of Exotic Properties’ rights to demand exact compliance with the terms of this
Agreement, and nor shall a waiver by Exotic Properties of any particular default
affect or impair Exotic Properties’ rights in respect to any subsequent default
of the same or different nature, and nor shall any delay or omission of Exotic
Properties to exercise any rights arising from a default affect or impair
Exotic Properties’ rights as to the said default or any subsequent default.
9.4 Relationship between the Parties. This Agreement does not make the Owner the
agent, legal representative, partner or joint venturer of Exotic Properties for
any purpose whatsoever. The Owner has no
right to create any obligation or responsibility, express or implied, on behalf
of or in the name of Exotic Properties, or to bind Exotic Properties in any
manner or concerning any matter.
9.5 Applicable Law. This
Agreement will be governed by the laws of
9.6
Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Exotic Properties and the Owner as well as their
respective successors and (in the case of Exotic Properties) permitted assigns.
9.7 Severability. If a court of competent jurisdiction rules
that any one or more of this Agreement’s provisions are invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any of this Agreement’s other provisions, and this Agreement
shall be construed as if it had never contained such invalid, illegal or
unenforceable provision. Without
limiting other provisions of this Agreement, the parties expressly intend and
agree that each and every limitation of liability, disclaimer of warranties or
exclusion of damages in this Agreement be severable and independent of any
other provision and be enforced as such.
Further, the parties expressly intend and agree that if any remedy in
this Agreement is determined to have failed of its essential purpose, all
limitations of liability and exclusions of damages set forth in this Agreement
shall continue to remain in effect.