Last updated: 3 May 2021
Please read this Host Services Agreement (this “Agreement”) carefully. This Agreement constitutes a legally binding agreement between you (“you” or “your”) and the BOOQED entity set out in Section 14.1 (“BOOQED”). This Agreement governs your access, as a Host (as defined herein), to BOOQED’s online booking services, delivered via BOOQED’S website, online Web-based platform and mobile application, including any ancillary services (the “Services”).
BY ACCESSING OR USING THE SERVICES YOU INDICATE YOUR ACCEPTANCE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES. IF YOU ARE DISSATISFIED WITH THIS AGREEMENT OR ANY TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR ACCESS TO AND USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO FOLLOW AND BE BOUND BY THIS AGREEMENT (INCLUDING THE LINKED DOCUMENTS REFERENCED HEREIN).
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” WILL REFER TO SUCH ORGANIZATION. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is effective on the earlier of the date: (a) you first access or use the Services; or (b) you click to accept this Agreement (“Effective Date”). You acknowledge the BOOQED Privacy Statement located at www.booqed.com (the “Privacy Statement”), as it may be amended from time to time.
Before you continue, you should print and/or save a local copy of this Agreement and the Privacy Statement for your records.
Before you continue, you should print and/or save a local copy of this Agreement and the Privacy Statement for your records.
“Asset Class” means the classification of a Space based on the use associated with that Space as set forth in Section 4.1.
“Booking” means the agreement between a Guest and a Host concerning the license of a Space.
“Booking Request” means a request for a Booking submitted by a User, intending to use the Services as a Guest.
“Commission” means the fee paid by a Host to BOOQED for the referral of a Guest.
“Concierge Services” means services that may be offered by BOOQED to directly assist Guests in making a Booking.
“Guest” means a User who buys a license of a Space from a Host.
“Host” means a User who is the owner, tenant and/or property manager of the Space who, via the Services, publishes or otherwise shares Spaces and sells licenses of such Spaces to Guests. For greater certainty, you are a “Host” for the purposes of this Agreement and all references to “Host” shall be references to “you”.
“License Fee” means the total dollar amount charged to a Guest upon a Host’s confirmation of a Booking Request.
“Rescheduled Booking” means a cancelled Booking later rescheduled by a Guest with the original Host for the original use.
“Spaces” means physical locations which are booked and licensed via the Services or the Concierge Services.
“Space Details” means the details of the Space as published by (or on behalf of) a Host to, or otherwise shared by (or on behalf of) a Host via, the Services.
“User” means any registered or unregistered user of the Services, including a Host or a Guest.
Description of Services. The Services enable Hosts who have registered for an Account (as defined herein) (a) to publish Spaces to, or otherwise share Spaces, via the Services, and (b) to communicate and transact directly with Users seeking to license such Spaces, in accordance with the terms set out in the Space Details and Booking Request, including, where applicable, the provision of payment services as set forth in Section 2.7 (“Payment Services”).
Access to Services. Subject to Host’s compliance with its obligations under this Agreement, BOOQED will make available to Host the Services during the Term (as defined herein) in accordance with this Agreement including the terms of use and other policies available once logged in to the Services or provided to Host from time to time (the “BOOQED Policies”).
Accounts. All Users of the Services must sign up for a BOOQED account (an “Account”). Host shall submit the information, as may be reasonably requested by BOOQED, to the Services. Host is responsible for the creation, use and termination of, and for maintaining the confidentiality of all Host log-in Account credentials and passwords (collectively “IDs”) and will immediately notify BOOQED of any unauthorized use of IDs or any other breach of security relating to the Services known to Host. BOOQED will not be liable for any activities undertaken by anyone using a User’s ID. BOOQED reserves the right (in its sole discretion) to change or disable any of the IDs used in connection with the Services where BOOQED suspects (acting reasonably) there has been an attempted or actual security breach or to ensure the security of the Services.
Restrictions. Host will not, and will not permit any third party to, directly or indirectly: (a) allow any third party to access the Services, except as expressly permitted herein; (b) modify, adapt, alter or translate the Services; (c) sublicense, lease, sell, resell, rent, share, loan, distribute, transfer or otherwise commercially exploit the Services or except as expressly permitted herein, allow the use of the Services on behalf of or for the benefit of any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e) create derivative works based on the Services or access or use the Services to develop or create a competitive service or product; (f) attempt to circumvent any security device or feature of the Services; (g) load or penetration test the Services; (h) use the Services to store or transmit any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data (“Malicious Code”); or (i) use the Services to make available a Space for rent, lease, sale residential use or lodging purposes, or for criminal or illegal activities.
BOOQED Responsibilities. BOOQED shall: (a) provide Host with reasonable technical and customer-related support services (for greater certainty, Hosts are responsible for providing support-related services to Guests); (b) make the Services available in accordance with this Agreement; (c) host the Services, provided that nothing herein shall be construed to require BOOQED to provide, or bear any responsibility for, any telecommunications or computer network hardware required by Host to access the Services from the Internet; (d) provide the Services in accordance with laws and government regulations applicable to BOOQED in its provision of the Services; and (e) be responsible for the performance of BOOQED’s personnel, including employees, agents and contractors, and their compliance with BOOQED’s obligations under the Agreement (for greater certainty, BOOQED’s personnel does not include Hosts, Users or Guests).
Host Responsibilities. Host shall: (a) ensure that any and all use of the Services is in compliance with the BOOQED Policies, Host Policies, this Agreement and laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to Host; (b) provide the information and assistance (if any) specified in this Agreement, and as may be requested by BOOQED from time to time, to enable BOOQED to provide the Services to Host; (c) be solely responsible for all Host Data made available through the Services or Spaces; (d) be responsible for taking reasonable precautions in all actions and interactions with any third parties through the Services or Spaces; (e) immediately report to the appropriate law enforcement authorities any criminal or otherwise illegal behaviour of Guests, and immediately notify BOOQED of same at support@booqed.com; (f) promptly report, within no more than two business days from the first event giving rise to the dispute, all disputes that arise following the confirmation of a Booking Request to BOOQED at support@booqed.com; (g) promptly report, within no more than three business days following the agreed upon license end date, any instances of Guest overtime or overstay to BOOQED at support@booqed.com along with the information that BOOQED may reasonably request, or Host’s entitlement to any overtime fees shall be forfeited; (h) provide to BOOQED such accurate, current and complete KYC-related information as BOOQED may reasonably request (including a business registration certificate or certificate of incorporation); and (j) maintain, at its own cost throughout the Term, reasonable insurance coverage including general liability, all risks and cyber liability insurance policies issued by reputable and financially sound insurance companies authorized to do business in the geographic area where the Services are to be performed and, upon BOOQED’s written request, Host will provide BOOQED with a certificate of insurance evidencing that its policies are in full force and effect.
This Section 2.7 applies if a Host is using the Payment Services.
BOOQED does not make any representation, warranty, condition or guarantee about the time it will take for Host to receive payment for any transaction, except where expressly agreed by BOOQED.
Stripe, Inc. and its affiliates (collectively, “Stripe”) provide certain services to BOOQED and to Host that support the Payment Services (the “Stripe Services”). BOOQED uses the Stripe Services to process order payments initiated by Host, and to pay the Fees (as defined herein) and other amounts owing by Host to BOOQED. BOOQED may use data about Host Stripe Account (as defined herein), about Host’s use of the Stripe Services, and about Host’s transactions effected through the Stripe Services for the same purposes for which BOOQED is permitted to use other data collected by BOOQED in connection with the Services, as provided in the Agreement or the Privacy Statement.
Host authorizes BOOQED to use the Stripe Services and the Host Stripe Account to provide Host with BOOQED Payment Services. Host consents to BOOQED’s provision of Host Data to Stripe as necessary for the provision of the Services, and Host authorizes Stripe to collect information from Host, including information that Stripe collects using cookies or other means. For more information regarding Stripe’s collection and use of data, see Stripe’s Privacy Policy.
As part of the Account opening process, Host opened a separate account with Stripe (“Host Stripe Account”) and Host agreed to the Stripe Connected Account Agreement and related obligations, as amended by Stripe from time to time (collectively, the “Host Stripe Agreements”). Host represents and warrants that all information Host provided or will provide to Stripe is accurate and complete. Host hereby agrees with BOOQED, and with Stripe, that Host will perform all of Host’s obligations under the Host Stripe Agreements. Host agrees not to use the Stripe Services in any manner that is fraudulent, unlawful, deceptive or abusive.
Host understands and agrees that Host responsible and liable to Stripe for all activity on the Host Stripe Account, whether initiated by Host or not (including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, and use of the Services in a manner prohibited under the Agreement or the Host Stripe Agreements).
HOST WILL INDEMNIFY AND HOLD BOOQED AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS BY STRIPE OR ANY THIRD PARTY (AND ANY RELATED COSTS, INCLUDING ATTORNEYS’ FEES) ARISING DIRECTLY OR INDIRECTLY OUT OF ANY ACTIVITY ON THE HOST STRIPE ACCOUNT, WHETHER INITIATED BY HOST OR NOT (INCLUDING ALL TRANSACTIONS, DISPUTES, REFUNDS, REVERSALS, CLAIMS, FINES ASSOCIATED WITH SUCH ACTIVITY, AND USE OF THE SERVICES IN A MANNER PROHIBITED UNDER THE AGREEMENT OR THE HOST STRIPE AGREEMENTS), AND INCLUDING (I) ANY FAILURE BY HOST TO PAY ANY AMOUNT OWING BY HOST TO STRIPE IN ANY WAY RELATED TO THE HOST STRIPE ACCOUNT; OR (II) ANY CLAIM MADE AGAINST BOOQED BY STRIPE AS A RESULT OF ANY INACCURATE OR INCOMPLETE INFORMATION PROVIDED BY HOST TO STRIPE (OR PROVIDED BY HOST TO BOOQED, AND WHICH BOOQED PROVIDED TO STRIPE). If BOOQED makes any payment to Stripe in relation to any such claim, then, without limiting any other remedies available to BOOQED, Host authorizes BOOQED to use any valid payment method authorized by Host to collect that amount from Host.
From time to time, BOOQED may change the service provider it uses to support the Payment Services, or BOOQED may offer the option of using other service providers to support the Payment Services, or BOOQED may elect to itself perform some or all of the services that were previously provided by the service provider. If BOOQED does so, then, in order to continue to use the Payment Services, Host may be required to agree to additional terms imposed by BOOQED. If Host does not wish to accept those terms, then Host must cease using the Payment Services.
Publishing and Managing Spaces. Spaces and Space Details published to, or otherwise shared using, the Services by (or on behalf of) Host shall: (a) provide complete and accurate information about the Space (including description, location, availability date, price, and any other information required under applicable laws); (b) provide any other information as may be reasonably requested by BOOQED from time to time; (c) comply with this Agreement (including in relation to cancellations and rescheduling, if applicable, pursuant to Section 4.1) and applicable law; and (d) disclose, if applicable, the amount of any security deposit associated with a Space in the applicable Space Details.
Asset Classes. This Section 4 applies where applicable to an Asset Class as specified below. Where not applicable, the Host terms and conditions apply.
Booking and Confirming Spaces. Host shall inform BOOQED within 24 hours (excluding weekends and public holidays) of receipt of a Booking Request if Host is unable to honor such Booking. Host may not change any terms set forth in the Space Details after approving a Booking Request from the Guest that has reserved a Space on the basis of the previously advised Space Details, including any prices or payment terms. After the Host has confirmed a Booking, then the Guest will be charged the License Fee Amount by BOOQED. Host acknowledges and agrees that once a Booking Request is confirmed by Host, (a) Host and Guest have entered into a legally binding agreement; and (b) Host is required to make the Space available to Guest as described in the Space Details and Booking Request.
Cancellations and Refunds. Hosts shall comply with the BOOQED cancellation and refund policy set forth in this Section 4.3.
Cancellations by Guests.
Guests may cancel Bookings subject to the following terms:
For all Guest cancellations pursuant to Section 4.3(a)(i), BOOQED will process applicable payments (including refunds) for Guest and/or Host in accordance with its normal payment policy on the start date of the original Booking. For all Guest cancellations pursuant to Section 4.3(a)(ii), Host will be entitled to receive the License Fee less the Commission, and less the additional concierge fee (where applicable) which is payable to BOOQED (“Concierge Fee”).
Cancellations by Hosts.
Where a Booking is cancelled by Host, BOOQED may impose penalties on such Host in BOOQED’s sole discretion including publishing an automated review indicating a cancelled Booking and suspending or terminating Host’s Account. Host shall provide to Guest at least 24 hours’ notice (excluding weekends and public holidays) of a cancelled Booking. Failure to comply with the preceding sentence will result in BOOQED charging the Host the applicable Concierge Fee and Processing Fee. In addition, where a Host cancels more than one Booking, BOOQED may, in its sole discretion, set off any losses it incurs as a result of the late cancellation (including costs associated with re-Booking a displaced Guest with another Host).
Rescheduled Bookings.
Hosts shall honour a Rescheduled Booking where: (a) the Rescheduled Booking is for the same duration as the original Booking; (b) the Host approves of the proposed date and time of the Rescheduled Booking; (c) the start date for Rescheduled Booking is less than 90 days from the start date of the original Booking; and (d) this is the first Rescheduled Booking.
CAFÉ TABLES
It is not possible to cancel or reschedule the Booking for a Café Table, and the applicable License Fees are non-refundable.
THIRD PARTY SERVICES
BOOQED or third parties may make available to Host for purchase access to or use of third party software services, applications or functionality that link to, interoperate with, are used in conjunction with, or are incorporated into and resold through the Services (“Third Party Services”). Host acknowledges and agrees that BOOQED does not own or control such Third Party Services. The Third Party Services are made available as a convenience only and are not part of the “Services” or subject to any of the warranties or conditions (whether express or implied), service commitments or other obligations with respect to Services hereunder. Moreover, the Third Party Services providers are not partners, agents or representatives of BOOQED and it is up to Host to decide whether to use or enable these Third Party Services and Host must rely on its own skill and judgement in electing to do business with such third parties. BOOQED has no obligation to monitor or maintain Third Party Services and may disable or restrict access to any Third Party Services at any time without notice. Access to and use of any Third Party Services, including the availability thereof and uptimes related thereto, is at Host’s own risk and is solely determined by the relevant Third Party Services provider and is subject to such additional terms and conditions applicable to such Third Party Services. Where applicable, Host is solely responsible for maintaining appropriate accounts in good standing with the Third Party Services providers. BOOQED will have no liability or other obligation to Host for such Third Party Services or Host Data exported to a Third Party Service, including any unavailability of any Third Party Services, or any Third Party Service provider’s decision to discontinue, suspend or terminate any Third Party Services.
Rights in the Services. Subject to the limited rights expressly granted herein and excluding any Host Data, (a) no other rights are granted to Host hereunder and BOOQED owns, retains and reserves all right, title and interest (including all copyright, patent, trade secrets and other intellectual property rights, whether registered or unregistered) in the Services, including modifications, improvements, developments, enhancements and derivative works howsoever created, even if unauthorized or on the request of or based on any Host Data or any suggestion, idea or feedback, from Host, Guests or other third parties; and (b) no express or implied license or right of any kind is granted to Host regarding the Services, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Services.
Rights in the Host Data. As between the parties, Host owns all right, title and interest in (a) the content, information, materials and data submitted or uploaded to, or shared using the Services by or on behalf of Host; and (b) any materials provided by or belonging to Host as used in the delivery or provision of the Services, or any portion thereof (the “Host Data”). Host is solely responsible for the accuracy, quality, reliability, content and legality of all Host Data and for obtaining all the necessary consents, licenses, intellectual property rights, clearances, permissions and authorizations for use of Host Data in connection with the Services. Should BOOQED, acting reasonably, deem any Host Data either to be in breach of this Agreement or to be reasonably expected to constitute grounds for BOOQED’s exposure to civil or criminal liability, BOOQED reserves the right, but does not assume the obligation, to remove such Host Data from the Services or, if BOOQED itself is unable to do so, to request the removal or editing of such Host Data by Host as BOOQED sees fit. Host will comply with any such request as soon as possible. Host hereby grants BOOQED a non-exclusive, worldwide, royalty-free right to (i) use, host, copy, store, transmit, modify, and display the Host Data as necessary to exercise its rights under this Agreement and for purposes of providing the Services, research and developing, creating and improving the functionality of the Services; and (ii) to use Host’s trademarks, service marks, and logos as required to provide the Services.
Publicity. Except as expressly permitted in this Agreement, neither party will make use of the other party’s name, trademark or trade name, including in any press release, public announcement or disclosure, website, marketing material or otherwise without the other party’s prior written approval.
Usage Data/statistical data. To deliver, support, develop, test and improve the Services (including the Spaces), BOOQED may collect, store, analyze and interpret data elements associated with or provided in the use of the Services. BOOQED will own all rights in such data and any algorithm, computational or cumulative results of such data. BOOQED may use such data for any purpose (including providing the Services, and auditing and improving the Services), and may provide it to third parties or compile it with other data to derive statistical and performance information, provided that it will aggregate and anonymize such data so that Host or any individual cannot be identified as the source of such data.
Confidentiality. During the Term, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) non-public technical, business, marketing, proprietary, trade secret, personal or other information in any form relating to the Disclosing Party’s business designated or reasonably understood to be confidential (“Confidential Information”). The Receiving Party agrees that it take reasonable precautions to protect the Confidential Information and will not use, or disclose it to any third party, except as expressly permitted in the Agreement. Access to Confidential Information will be limited to those of the Receiving Party’s employees and contractors who need such access for purposes consistent with the Agreement and who owe the Receiving Party an obligation of confidentiality with terms consistent with this Agreement. Confidential Information excludes information that the Receiving Party can establish: (a) was known to it prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (c) is acquired from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party. The foregoing exclusions do not apply to personal information. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary to enforce its rights under the Agreement or is required by law or pursuant to a court or regulatory order, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks a protective order.
BOOQED Security Obligations. BOOQED will adhere to, in all material respects, its security processes and policies, and all data privacy, security and protection legislation applicable to BOOQED in its provisioning of the Services. Unless expressly agreed to herein, BOOQED will not be responsible for compliance with any specific requirements with respect to Host.
Host Privacy Obligations. Host is responsible for compliance with all data privacy, data protection and data security laws applicable to Host and/or its use of the Services. Subject to Section 8.2, BOOQED disclaims any responsibility for the collection, use and/or disclosure of User or Guest data by Host and its respective directors, officers, employees, contractors, agents and those for whom in law they may be responsible.
Prohibited Data. Host will not upload into the Services or otherwise submit or make accessible to BOOQED any government issued identifiers (e.g. social insurance numbers, health card numbers) or other types of sensitive data that is subject to specific or elevated data protection requirements (“Prohibited Data”), unless BOOQED has expressly agreed that it can comply with such requirements.
Express Consent. Host consents to BOOQED’s processing of Host business contact information for business purposes including provisioning User accounts, sending Service, sales and marketing communications, and securing the Services.
Fees and Payment. BOOQED (or Stripe) will pay Host on a per transaction basis for all Fees due with respect to the Services.
Commission. The Commission that Host shall pay to BOOQED on a per transaction basis is specified in this Section 9.2, as amended by BOOQED from time to time.
Taxes. Hosts are solely responsible for determining Host’s tax obligations under applicable law in consultation with your tax advisor. BOOQED does not provide any tax-related guidance to Users of the Services.
Host Warranty. Host represents and warrants to BOOQED that: (a) it has the power and authority to enter into the Agreement (including to grant the licenses referenced herein); (b) the Host Data shall not contain any Malicious Code; (c) the Host Data shall not infringe any copyright, trademark or patent right or misappropriate any trade secret; and (d) it shall comply with applicable law in accessing and using the Services (including the collection, use and disclosure of Host Data in accordance with applicable law).
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE MADE FOR THE BENEFIT OF HOST ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (INCLUDING THE THIRD PARTY SERVICES) ARE PROVIDED “AS IS,” AND BOOQED MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, nonconformance with description, TITLE, NONINFRINGEMENT, accuracy, SAFETY, RELIABILITY, COMPLETENESS AND FITNESS FOR A PARTICULAR PURPOSE or the results HOST may obtain by using the services or that he quality of the services will meet Host’s expectations or requirements. BOOQED DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE or that it will correct all defects or prevent unauthorized access. BOOQED does not warrant that the Services will be compatible with HOST’S computer systems, MOBILE DEVICES or any Internet technology. BOOQED disclaims all failures, delays and other problems inherent with the internet and is not responsible for any HOST Data delayed, lost, altered, intercepted or stored during the transmission across networks not owned or controlled by BOOQED. BOOQED IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE (INCLUDING USERS OR GUESTS). YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ANY AND ALL LAWS, RULES, REGULATIONS AND TAX OBLIGATIONS THAT MAY APPLY TO YOUR USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO HOST.
Indemnification. Host shall indemnify and defend BOOQED against any claim, demand, suit or proceeding made or brought against BOOQED by a third party in connection with Host’s access to or use of the Services or Host’s Spaces, including in relation to (a) any allegation that the Host Data infringes the intellectual property, privacy or other rights of such third party; (b) Host’s violation or alleged violation of this Agreement; (c) the provision of and payment for the Services; (d) Host’s interaction with any User (including Booking Requests, Bookings); or (e) Host’s use of the Services other than as authorized in the Agreement violates applicable law or infringes such third party’s intellectual property rights, and Host shall pay any losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim. BOOQED reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify BOOQED and you agree to cooperate with BOOQED defense of these claims. You agree not to settle any matter without the prior written consent of BOOQED. BOOQED will use reasonable efforts to notify you of any such claims upon becoming aware of it.
BOOQED’S MAXIMUM AGGREGATE LIABILITY TO HOST AS A RESULT OF ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL IN NO EVENT EXCEED ONE HUNDRED UNITED STATES DOLLARS (USD$100).
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ITS PERFORMANCE HEREUNDER, WHETHER THE ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS SECTION 12.1 WILL OPERATE TO EXCLUDE OR RESTRICT A PARTY’S LIABILITY (IF ANY) TO THE OTHER FOR ANY MATTER FOR WHICH IT IS NOT PERMITTED BY LAW TO EXCLUDE OR LIMIT ITS LIABILITY, INCLUDING DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY’S NEGLIGENCE.
Term. This Agreement commences on the Effective Date and shall remain in effect until terminated by either party in accordance with this Agreement (the “Term”).
Termination. Either party may terminate this Agreement, immediately upon written notice to the other party if the other party (a) materially breaches the Agreement and, where curable, fails to cure such breach within 30 days after its receipt of written notice of such breach, or (b) becomes the subject of a petition in bankruptcy, insolvency proceeding, receivership, liquidation or composition for the benefit of creditors.
Termination by Host. Host may terminate this Agreement at any time upon providing 30 days’ prior written notice of termination to BOOQED.
Host Data Portability and Deletion. All Host Data hosted and stored on the Services will be available to Host for export or download during the Term. After the effective date of termination, BOOQED will have no obligation to maintain or provide the Host Data and will delete or destroy it in accordance with its standard practices, unless legally prohibited from doing so.
Effect of Termination. Immediately upon termination of this Agreement, (a) all applicable rights granted to either party shall terminate; (b) Host shall cease to access and use the Services; and (c) each party will return or destroy Confidential Information of the other party and, upon request, an officer of such party will certify the same in writing. Any provision in this Agreement that contemplates continuing obligations on a party shall survive the termination of the Agreement.
Suspension rights. Where BOOQED determines in its sole discretion that: (a) Host’s use of the Services (including Host’s Spaces), or any portion thereof, poses a reasonable risk of harm or liability to BOOQED or any third party and Host is not taking appropriate action including addressing any concerns raised by a User, Guest or other third party; (b) there has been a violation of this Agreement (including Host’s failure to timely confirm a Booking Request in accordance with Section 4.2); (c) Host is using the Services in violation of applicable law and/or fails to cooperate with BOOQED’s investigation into any such alleged violation; or (d) a suspension is required by applicable law or governmental authority; BOOQED may immediately suspend Host’s access to the Services, or any portion thereof, until the situation giving rise to the suspension has been remedied to BOOQED’s satisfaction, acting reasonably. Where reasonably practicable in the circumstances and unless prohibited by law, BOOQED will, prior to suspending the Services, or any portion thereof, inform Host of the concern as soon as reasonably possible.
The entity with which Host is contracting with, the law that governs this Agreement, the venue for any dispute arising out of this Agreement, the applicable arbitration rules for any dispute and to whom Host should direct notices to depend on where Host is domiciled.
Governing Law and Venue. The Agreement and any action related thereto will be governed and interpreted by and under the laws of the applicable jurisdiction specified in Section 14.1, without reference to conflicts of laws principles. Subject to Section 14.3, both parties expressly agree that any action relating to the Agreement shall exclusively be brought in the courts located in the applicable jurisdiction specified above, and irrevocably consent to the jurisdiction of such courts. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
Arbitration. If Host domiciled in a jurisdiction where in which this Section 14.3 is enforceable, the following mandatory arbitration provision shall apply. Any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration under the rules of the applicable jurisdiction specified in Section 14.1. The language of the arbitration shall be English. The number of arbitrators shall be one. The fees and expenses of the arbitrator will be borne equally between the parties. The arbitrator may order interest on any award and the arbitrator may award costs to either party. In the absence of any such award of costs, each of the parties will bear its own costs of the arbitration. The parties agree that good faith negotiations and arbitration will all be without recourse to the courts and that the award of the arbitrator will be final and binding, except that: (a) either party may appeal an arbitration award to the courts of the applicable jurisdiction specified in Section 14.1 on a question of law; and (b) either party may apply to the courts of the applicable jurisdiction specified in Section 14.1 for an interim measure of protection or for any order for equitable relief which the arbitrator does not have the jurisdiction to provide.
Notice. Any notice given under this Agreement shall be in writing and shall be effective upon receipt or refusal if (a) delivered by hand; (b) delivered electronically by email; or (c) sent via overnight mail by a nationally recognized express delivery service; when addressed to the address or email address set forth in the recital, or to such other address that a party may specify in a notice given under this Section 14.4.
Independent Contractors. The parties are independent contractors and nothing in the Agreement shall be deemed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
Export Control; Anti-Corruption. The parties each agree: (a) to comply with any applicable export control laws or similar regulations in providing and using the Services; and (b) that they have not received or been offered any illegal or improper bribe, kickback, payment or gift from the other party in connection with the Agreement (reasonable gifts and entertainment provided in the ordinary course of business excluded).
Severability; Waivers. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. No delay or omission to exercise any right or remedy by either party hereunder shall constitute a waiver of that right. No waiver of any provision of the Agreement shall be valid unless in writing and signed by the waiving party.
Assignment. Host may not assign this Agreement, or any obligation contained herein, in whole or in part, by operation of law or otherwise, without the prior written consent of BOOQED. Any such attempted assignment shall be null and void.
Force Majeure. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including acts of God, war, terrorism, third party strikes, failure of suppliers, fires, floods, earthquakes or Internet or telecommunications failures. In the event a force majeure event affecting a party continues for a period longer than 30 days, either party shall be entitled to terminate the Agreement as of the date specified in the written notice to the other party to that effect subject to Section 13.5.
Remedies. Host acknowledges that the Services contain valuable trade secrets and proprietary information of BOOQED, that any actual or threatened breach by Host of its obligations with respect to intellectual property rights of BOOQED, will constitute immediate, irreparable harm to BOOQED for which monetary damages would be an inadequate remedy. In such case, BOOQED will be entitled to seek immediate injunctive relief without the requirement of posting bond.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Interpretation. In this Agreement, (a) words importing the singular number only shall include the plural and vice versa and words importing the masculine gender shall include the feminine; (b) the headings are intended solely for convenience of reference and will be given no effect in the interpretation or construction of this Agreement; and (c) wherever the words “include”, “includes” or “including” are used, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes”, or “including” shall not be considered to set forth an exhaustive list.
Entire Agreement; Modifications. The Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes any prior or contemporaneous understandings or communications (oral or written) regarding such subject matter. BOOQED may update this Agreement, the Privacy Statement, and/or the BOOQED Policies at any time, without notification to you, and you should review this Agreement and the Privacy Statement from time to time by accessing the Services. Your continued use of the Services will be deemed irrevocable acceptance of any such revisions.
