These terms and conditions (Terms) cover the use of the Net Affinity services listed here (the Services). By providing the opportunity of subscribing for, using and/or ordering the Services, Net Affinity makes an offer to you. You accept these Terms by creating a Net Affinity account, by using the Services or by continuing to use the Services after being notified of a change to these Terms. Please read, print and save a copy of these Terms for your records.
1. Definitions
Confidential Information means information that is proprietary or confidential to either the Supplier or the Customer.
Content means text, graphics, images, music, software, audio, video, information or any other form of data.
Customer means the legal or natural person who registers for a Customer Account, who is acting in the course of their business, trade or profession and not as a consumer.
Customer Account means the account which the Customer creates with the Supplier in order to access and use the Services.
Customer Data means Content provided by the Customer as part of using the Services including but not limited to information (including photographs or illustrations) about a Property's amenities, suitability, pricing or availability.
Customer Website means the Customer’s website.
Data Protection Legislation means the Irish Data Protection Legislation and GDPR and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
Documentation means the document(s) made available to the Customer by the Supplier online via email, in-product notifications, online chat/ticketing systems and/ or such other web address(es) as may be notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
GDPR means the EU General Data Protection Regulation (EU 2016/679).
Property means any form of accommodation, building, house boat, apartment, room, apartment blocks, houses, hostels or any other dwellings or rental space that is offered for rent using Net Affinity products.
Reactivation has the meaning set out in clause 17.10.
Services means the services being provided by the Supplier to the Customer on a non-exclusive basis which may include some or all of the following: website builder, vouchers and/or booking engine.
Software means the online software applications provided by the Supplier as part of the Services.
Subscription Term means the time period/term during which the Customer has subscribed to receive some or all of the Services from the Supplier.
Supplier (or Net Affinity) means Net Affinity Limited (trading as Net Affinity), a company incorporated and registered in Ireland with company number 323392 and having its address at 2nd Floor, Block 4, Bracken Business Park, Bracken Road, Sandyford, Dublin 18, D18 V0Y0.
Taxes in these Terms means all taxes which are payable by the Customer with respect to any order placed and Services availed of or otherwise applicable and payable by the Customer.
Viruses means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. Your Privacy
2.1 The Customer’s privacy is important to the Supplier. The Customer should read the Supplier’s Privacy Statement (the Privacy Statement) here as it describes the types of data which the Supplier collects from the Customer and the Customer’s devices (Data), how the Supplier uses the Data and the legal bases it has to process the Customer’s Data. The Privacy Statement also describes how the Supplier uses the Customer Data. Where processing is based on consent and to the extent permitted by law, by agreeing to these Terms, the Customer consents to the Supplier’s collection, use and disclosure of the Customer Data as described in the Privacy Statement.
3. Customer Account and Content
3.1 To access and use the Services, the Customer must create a Customer Account with the Supplier by signing up online and shall maintain the confidentiality of its Customer Account, shall not disclose any passwords to any third party and shall prevent unauthorised access to its Customer Account.
3.2 The Customer agrees not to use any false, inaccurate or misleading information when signing up for a Customer Account and to provide and maintain true, accurate, current and complete information at all times.
3.3 If you create a Customer Account on behalf of an entity, such as your business or employer, you represent that you have the legal authority to bind that entity to these Terms. If you create a Customer Account, you also represent that you have reached the age of majority where you live.
3.4 The Customer may not assign or otherwise transfer its Customer Account to another party.
3.5 The Supplier does not claim ownership of any Customer Content; the Customer Content remains the Customer’s Content and the Customer shall be responsible for it.
3.6 The Customer represents and warrants that it owns or otherwise controls all of the rights to the content that it provides or posts on its website using the Services; that it is accurate and the use of the content and material which it supplies does not breach any applicable law, policies or guidelines and will not cause injury to any person or entity (including that the content or material is not defamatory). The Customer agrees to indemnify the Supplier for all claims brought by a third party against the Supplier arising out of or in connection with a breach of any of these warranties.
4. Customer’s use of the Services
4.1 The Customer agrees to access and use the Services only to advertise Properties for rent. Any other use of the Services is expressly prohibited.
4.2 The Customer agrees to comply with all applicable laws and regulations with respect to its activities under these Terms.
4.3 The Customer shall own all right, title and interest in and to the Customer Content and Content uploaded by the Customer's users, and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of such Content.
4.4 The Customer warrants that it will provide and maintain correct and up-to-date information about the state, features and availability of the Properties, and shall not mislead the Customer’s users about same or any other detail about the Properties. The Customer acknowledges that information provided about the Properties will be, upon receipt of approval from the Customer, made available to the public and may be sent to the Supplier’s partner websites for the purpose of advertising a Property.
4.5 The Customer is solely responsible for ensuring that the Customer’s Website complies with all applicable laws and for drafting, displaying and enforcing the terms of use and privacy policy for the Customer’s Website.
4.6 The Supplier may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, at any time at the Supplier’s sole discretion.
5. Customer’s obligations and responsibilities
5.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to these Terms; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms;
(c) carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Customer uses the Services and the Documentation in accordance with the terms and conditions herein and shall be responsible for any breach of these Terms by any of its authorised users;
(e) obtain and maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Terms, including and without limitation, the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
5.2 The Customer shall not access, store, distribute or transmit any Viruses, or post, upload, publish, submit or transmit any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, abusive, defamatory, obscene, pornographic, vulgar, infringing, harassing or racially or ethnically offensive;
(b) is fraudulent, false, misleading or deceptive;
(c) facilitates illegal activity or promotes illegal or harmful activities or substances;
(d) depicts sexually explicit images;
(e) is violent or threatening or promotes unlawful violence or actions that are threatening to any person or entity;
(f) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(g) infringes a third party’s intellectual property rights or rights of publicity or privacy;
(h) violates or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; or
(i) is otherwise illegal or causes damage or injury to any person or property;
and the Customer agrees to include similar provisions which are no less onerous than those stated in this clause 5.2 in its terms and conditions with its customers,
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches or that it reasonably suspects may breach the provisions of this clause and to terminate these Terms.
5.3 The Customer shall not:
(a) use or access the Services in a manner that unfavourably affects the performance or proper functioning of the Services, or any computer systems or networks used by the Supplier and the Services;
(b) impersonate anyone, or misrepresent or misstate facts about affiliation with any person, or from forging headers or manipulating identifiers so as to disguise the origin of the content transmitted through the Customer’s website;
(c) use, display, mirror or frame NetAffinity.com, or any individual element within any Net Affinity domain or the Services, Net Affinity's name, any Net Affinity trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without the prior written consent of Net Affinity;
(d) use any robot, spider, other automatic device or manual process to monitor, download, copy or keep a database copy of any content made available through the Services;
(e) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; or
(f) send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; invasive of privacy, infringing of intellectual property rights or otherwise injurious to third parties or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or which contains objectionable material; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any "spam" or to cause annoyance, inconvenience or needless anxiety,
and the Customer agrees to include similar provisions which are no less onerous than those stated in this clause 5.3 in its terms and conditions with its customers.
5.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except its authorised users; or
(d) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation.
5.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
5.6 The rights provided under this clause are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
5.7 The Customer is solely responsible for the operation of the Customer’s Website, including the business that is conducted in relation to the Properties, the statements and representations made by the Customer about the Properties, any interaction between the Customer and its users on the Customer’s Website, and the content (including user generated content) which is posted to or transmitted via the Customer’s Website.
5.8 The Customer acknowledges that the Supplier has no control over any Content transmitted on the Customer’s Website or the third party channels (including initiation of the transmission or determination of the receiver of the transmission) and that the Supplier does not monitor or review such Content and that no statement made on the Customer’s Website or otherwise to the Customer’s users will misrepresent, or is likely to misrepresent, the role of the Supplier in relation to the Customer and its website.
5.9 The Customer acknowledges that it is the Customer's sole responsibility to back up its Content and that the Supplier has no obligation to store, maintain or provide the Customer with a copy of any Customer Content.
5.10 The Customer shall be responsible for all orders placed by any of its customers using the Supplier’s booking engine or any of the Services.
5.11 The Customer shall afford the Supplier's employees, agents and sub-contractors such access to the Customer's third party providers as may be necessary for the performance of the Services, at reasonable times and on reasonable notice.
6. Marketing Campaigns
6.1 Any online advertising or social media campaigns managed for or transferred to the Customer by the Supplier shall be and remain in the intellectual property of the Supplier. In the event of termination of these Terms, access to such online advertising or social media campaigns managed by the Supplier will not be granted to the Customer nor be transferable to any third party. Online advertising campaigns cover all accounts which may be managed in the various platforms online which include but are not limited to Google AdWords, MSN AdCenter, Yahoo! Search Marketing, Facebook, Twitter, LinkedIn, Myspace, Flipto, Flickr, YouTube, Digg, StumbleUpon, Reddit, Del.icio.is or any other platform that the Supplier engages in.
7. Feedback
7.1 The Customer may, from time to time, submit feedback to the Supplier. The Supplier is free to use any such feedback as it may deem appropriate in its sole discretion in connection with any of its Services or products.
8. Trial Subscriptions
8.1 If the Customer receives free access or a trial to any Service (a Trial Subscription), the Customer may use such Service(s) in accordance with these Terms for a period of ninety (90) days or such other period as may be granted by the Supplier (the Trial Period).
8.2 Trial Subscriptions are permitted solely for the Customer's evaluation so that the Customer may determine whether to purchase a paid subscription to the Services.
8.3 Trial Subscriptions may not include all functionality and features which would be accessible or available as part of a paid subscription or paid for Services.
8.4 If a Customer does not enter into a paid subscription with the Supplier after a Trial Period, the Customer's right to access and use the Services will terminate at the end of the Trial Period and these Terms will no longer apply save as otherwise specified herein. The Supplier reserves the right to terminate a Trial Subscription at any time for any reason.
9. Payment Terms
9.1 At the end of any Trial Period or as requested by the Supplier, the Customer shall provide its payment details for the Services whether in the form of credit card details or otherwise.
9.2 The payment term will commence on the date specified by the Supplier and notified to the Customer.
9.3 The fees payable by the Customer to the Supplier for the Services shall be as specified in the order form on the Supplier’s website (the Fees).
9.4 All Fees are to be paid by the Customer to the Supplier and are non-refundable. The Fees are valid for the Subscription Term and thereafter may be subject to adjustment by the Supplier.
9.5 The Customer is liable to pay all applicable Taxes and Taxes are not included in the Fees.
Recurring Payment Authorisation
9.6 By providing credit card information and purchasing any Services, the Customer hereby authorises the Supplier to automatically charge the Customer's credit card on the same date of each calendar month or calendar year (or the closest prior date, if there are fewer days in a particular month) depending on the billing option the Customer has chosen during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable order form used by the Customer. The Customer acknowledges and agrees that the amount billed and charged each month or year may vary depending on the Customer's use of the Services and may include subscription fees for the remainder of the Customer's applicable billing period and overage fees for the prior month or year.
Foreign Transaction Fees
9.7 The Customer acknowledges that for certain credit cards, the issuer of the Customer's credit card may charge a foreign transaction fee or other charges.
Invalid Payment
9.8 If a payment is not successfully settled due to expiration of a credit card, insufficient funds, or otherwise, the Customer remains responsible for any amounts not remitted to the Supplier and the Supplier may, at its sole discretion, either (i) invoice the Customer directly for the deficient amount, (ii) continue billing the credit card once it has been updated by the Customer (if applicable) or (iii) terminate these Terms and terminate the provision of Services to the Customer.
Changing Credit Card Information
9.9 At any time when these Terms apply, the Customer may change its credit card information by entering updated credit card information via the "Billing" page on the dashboard.
Termination of Recurring Billing
9.10 In addition to any termination rights set forth in these Terms, the Customer may terminate the Subscription Term by terminating via the "Settings" page on the dashboard, with termination effective at the end of the current Subscription Term. As above, if the Customer does not enter into a paid Subscription Term following a Trial Period, these Terms and the Customer's right to access and use the Services will terminate at the end of the Trial Period and the Customer's credit card will not be charged.
Payment of Outstanding Fees
9.11 Upon any termination or expiration of the Subscription Term, the Supplier will charge the Customer's credit card (or invoice the Customer directly) for any outstanding fees for the Customer's use of the Services during the Subscription Term, after which the Supplier will not charge the Customer's credit card for any additional fees.
Suspension of Services for non-payment of Fees
9.12 If Fees are overdue from a Customer for seven (7) days or more, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), the Supplier reserves the right to suspend the Customer's access to the applicable Service (and any related services) without liability to the Customer until such amounts are paid in full to the Supplier. The Supplier also reserves the right to suspend the Customer's access to the Services without liability to the Customer if the Customer's use of the Services violates these Terms in any way.
10. Updates to the Services or Software and changes to these Terms
10.1 The Supplier will inform the Customer if the Supplier intends to change these Terms. The Supplier may change these Terms if it is necessary due to (i) applicable law, including, but not limited to, a change of such law; (ii) an advice and/or order based on applicable law; (iii) the evolution of the Services; (iv) technical reasons; (v) operational requirements or (vi) an advantageous change of terms for the user. The Supplier will inform the Customer of the intended change before it takes effect, either through the user interface, in an email message or through other reasonable means. The Supplier will provide the Customer with the opportunity to cancel the Services at least 30 days before the change becomes effective. Using the Services after the changes become effective means the Customer agree to the new terms. If the Customer does not agree to the new terms, the Customer must stop using the Services and close its account with the Supplier. The Supplier will also expressly point to this fact when informing the Customer about the intended change of these Terms.
10.2 The Supplier may automatically check the Customer’s version of the software, which is necessary to provide the Services, and download software updates or configuration changes, without charging the Customer, to update, enhance and further develop the Services. The Customer may also be required to update the software to continue using the Services. Such updates shall be subject to these Terms unless additional or other terms accompany the updates, in which case, those other terms apply. If the Customer declines to accept the additional or other terms applicable to the updates, the Customer may not receive or use the updates. The Supplier isn't obligated to make any updates available and doesn't guarantee that it will support the version of the system for which the Customer purchased or licensed the software, apps, content or other products.
10.3 The Customer acknowledges that access to the Services may be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of updates to the Services. The Services or material offered through the Services may be unavailable from time to time or may be offered on a limited basis; the Supplier will endeavour to keep the Services up and running however all online services suffer occasional disruptions and outages.
11. Third party providers
The Customer acknowledges that the Services may enable or assist it to transfer customer data, to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the transfer of such data or the content or use of, or correspondence with, any such third-party website, or any transactions completed or any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
12. Warranties and Disclaimers
12.1 The Supplier provides the Services “as is”, and “as available” and the Customer acknowledges that the Services have not been developed to meet its individual requirements and that it is therefore the Customer’s responsibility to ensure that the facilities and functions of the Services meet the Customer’s requirements.
12.2 The Supplier does not guarantee the accuracy or timeliness of the Services and gives no warranty that the Services, the functionality of the Services or any aspect thereof will be uninterrupted or error free, that defects will be corrected or that the Services or servers that make them available are free of viruses or anything else which may be harmful or destructive. The Customer acknowledges and agrees that computer and telecommunications systems are not fault free and that any aforementioned errors or interruptions shall not constitute a breach of these Terms.
12.3 The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
12.4 The Supplier gives no contractual guarantees or conditions and, except as expressly stated in these Terms and, to the fullest extent permitted by law, excludes all warranties, representations, conditions and all other terms of any kind whatsoever as may be express or implied by statute or common law including but not limited to any implied warranties relating to quality, completeness of content, fitness for a particular purpose or ability to achieve a particular result.
12.5 The Supplier does not own or manage the Properties and does not act as a real estate agent or travel agent for its Customers or for their customers. The Supplier provides a platform that allows Customers to create, edit and display listings for Properties on Customer Websites or third party channels, and to manage the booking and reservation of Properties. The Supplier does not take part in, or have any responsibility for, any rental transactions, booking arrangements or any property management issues. The Supplier is not a party to any rental contract.
12.6 The Supplier provides no warranty that the Customer Content will not be lost or corrupted and the Supplier shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Content. See Supplier Privacy Policy for more information about its treatment of personal data.
12.7 The Supplier does not give any warranty in respect of third party products, hardware, software services, clearing, ranking, optimisation, or alteration to same, which occur from time to time.
12.8 The Supplier does not guarantee that the Customer or any third parties will be able to access a website created or hosted by the Supplier at any particular time, nor that particular websites will be included or rated at a particular level in any particular search engines or search results. Optimisation, marketing and other services are provided on an "as-is, as-available" basis.
12.9 The Customer acknowledges that the need for routine maintenance and error correction as well as technical changes to search engine technology and models may result in loss of ranking or downtime and also that the Supplier cannot control the timing or volume of results or attempts to access the Supplier's or any other party's websites, servers, search results, connection speeds, availability or storage capacity. The Supplier shall have no liability under or be deemed to be in breach of these Terms for any delays or failures in its performance or impaired functionality or commercialization which result from circumstances beyond the reasonable control of the Supplier, including in particular, telecommunications shortages or outages; third party telecommunication or internet services providers; third party websites; third party ranking or search engines; changes of search engine or internet service providers, third party rankings, optimisations, technology, algorithms or codes; failure or shortage of power supplies; the act or omission of any telecommunications or internet carrier or service provider, operator or administrator delay or failure in manufacture, production or supply by any party of equipment or services. The Supplier will endeavour to work in conjunction with the relevant third party to resolve problems as quickly as possible on the understanding that resolution times are ultimately dependent on the third party involved.
12.10 The Supplier does not guarantee that the Customer or any third parties will be able to access a website or Service and has no control over timing or failure of attempts to access websites or Services at any particular time.
12.11 The Supplier shall use reasonable endeavours to perform support or remedial services so as to minimise business disruption so far as reasonably practicable but does not warrant that even subsequent to software support, the operation of the Services shall be uninterrupted or error free.
12.12 The Supplier is not responsible for examining or evaluating and does not warrant or endorse the offerings of any of the businesses or individuals which are Customers, or the content of any Customer websites. The Supplier does not assume any responsibility or liability for the actions, products, and content of any of these or for those of any other third-parties.
13. Data Protection
13.1 The Supplier and the Customer confirm that they are fully aware of and will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
13.2 Each of the Supplier and the Customer shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
13.3 The parties acknowledge that the Customer shall be the data controller responsible for all data and information collected on, via or in relation to the Services and shall be the data controller in relation to any data and information which it receives from its customers, the Supplier or from users of the Services or the Customer’s website.
13.4 The Supplier shall, as processer, be permitted to collect, hold, use, transmit and share with sub-processers any data obtained from and about the Customer or in relation to and in the course of providing the Services.
13.5 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to the Supplier for the duration and purposes of these Terms so that the Supplier may lawfully use, process and transfer any personal data in accordance with these Terms on the Customer's behalf.
14. Proprietary rights
14.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these Terms do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
14.2 The Customer acknowledges that it is receiving only a limited right to use the Services, that no ownership rights are being conveyed to the Customer and that the Supplier or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements or any of the foregoing, including as may incorporate feedback. Further, the Customer acknowledges that the Services are offered as an on-line, hosted solution, and that the Customer has no right to obtain a copy of any of the Services, except for the Net Affinity Apps in the format provided by Net Affinity.
14.3 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.
15. Indemnities
15.1 The Customer shall indemnify and hold harmless the Supplier against all damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the use by the Supplier of any materials or information provided to it by the Customer pursuant to these Terms for the provision of the Services infringes any intellectual property right of that third party.
15.2 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
15.3 The Supplier shall defend the Customer against any claim that the Services or Documentation infringes any copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
15.4 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the agreement with the Customer on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
15.5 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the Supplier; or
(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
15.6 The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
16. Limitation of Liability
16.1 Except as expressly and specifically provided in these Terms:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use;
(b) the Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction or for any loss or corruption of data, software or database configuration held by the Customer;
(c) the Supplier shall have no liability for failure caused by any software which the Supplier has not developed, for any modifications to the Services made by the Customer without the consent of the Supplier, for any telecommunications, communications or electrical power outages, failures or delays or for any third party processes, practices, algorithms, search result categorisation models and techniques;
(d) the Supplier shall have no liability for any failures internal to, or factors internal to, the Customer or for failures related to the Customer’s obligations under these Terms;
(e) the Supplier shall have no liability for any breach of GDPR or any breach of any Data Protection Law by the Customer;
(f) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and
(g) the Services and the Documentation are provided to the Customer on an "as is" and “as available” basis.
16.2 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
16.3 The Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty, for loss of data or use), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of earnings, loss of anticipated savings, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms.
16.4 The Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total subscription Fees paid to the Supplier by the Customer during the 12 months immediately preceding the date on which the claim arose.
16.5 The Supplier shall not be deemed to have breached any of its obligations under these Terms to the extent that any act or omission on its part is due to any delay or failure or other act or omission on the Customer’s part.
17. Termination
17.1 These Terms shall become effective from the date on which the Customer creates a Customer Account with the Supplier and shall continue until terminated in accordance with this clause 17.
17.2 The Supplier’s contract with the Customer and these Terms may be terminated by the Customer, without cause, by following the cancellation procedures set out in the knowledge base made available to the Customer by the Supplier online via email, in-product notifications, online chat/ticketing systems and/or such other web address(es) as may be notified by the Supplier to the Customer from time to time.
17.3 The Supplier’s contract with the Customer and these Terms may be terminated by the Supplier, without cause, at any time and upon 30 days’ notice to the Customer.
17.4 The Supplier’s contract with the Customer and these Terms may be terminated by the Supplier at any time, immediately upon notice to the Customer (including via email), if:
(a) the Customer fails to comply with any of the provisions of these Terms or fails to pay an amount due to the Supplier;
(b) the Services are discontinued; or
(c) the Supplier loses the right to provide the Customer with the Services or where the provision of the Services or a particular Service becomes unlawful.
17.5 These Terms and the contract between the parties will terminate in the event that either party proposes a voluntary arrangement, suffers an insolvency event or any similar or analogous event occurs in relation to the other party in any jurisdiction.
17.6 Upon termination, any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected.
Consequences of Termination
17.7 On termination for any reason and upon the written request of the Customer, the Supplier may make service data available to the Customer for export or download, which may include booking data from a booking engine, voucher details and voucher order numbers for an e-voucher solution and form data for any website building service provided.
17.8 On termination for any reason, products or Services will no longer be accessible and termination will result in the loss of service of a Customer’s online products or services availed of from the Supplier.
17.9 No refunds or repayments will be provided by the Supplier to the Customer on termination for any reason.
Cancelling and Re-activating Subscriptions
17.10 If a Customer cancels the Customer’s subscription during the Subscription Term, the Customer will lose access to all Services of the Supplier immediately; however, the Customer may reactivate its subscription within 30 days of cancellation (Reactivation).
17.11 If the Reactivation is during a Customer’s agreed and paid for Subscription Term, the Services will resume as previously provided. If the Reactivation is outside of the Customer’s agreed and paid for Subscription Term, the Customer will be required to pay the required additional fees notified by the Supplier.
17.12 No refunds or repayments will be provided by the Supplier to the Customer on cancellation of any Customer subscriptions and no credits provided in respect of any cancellation, termination or Reactivations.
18. Confidentiality
18.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
18.2 Subject to clause 18.1, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these Terms.
18.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Terms.
18.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 18.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
18.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
18.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
18.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
18.8 The confidentiality provisions herein shall not be construed to limit either party's right to independently develop or acquire products without use of the other party's Confidential Information. However, the Customer shall not be free to use for any purpose the know how resulting from access to or work with such Confidential Information provided to it by the Supplier in the course of the provision of the Services.
18.9 All Confidential Information of the Supplier shall remain the property of the Supplier and all Confidential Information of the Customer shall remain the property of the Customer and no party is entitled to use or shall have any claim against any of the other’s intellectual property rights including patents, copyrights, trademarks or trade secrets save as may be specifically provided in these Terms.
18.10 The provisions of this clause shall survive termination of these Terms, however arising.
19. Force majeure
The Supplier shall have no liability to the Customer under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
20. Variation
These Terms may be varied from time to time at the discretion of the Supplier as more particularly detailed in clause 10. The Supplier reserves the right to update, change, edit or alter these Terms in respect of market, legal or company led factors and may supply a written copy of any change to the Customer. By agreeing to these Terms, the Customer agrees to the current Terms and any future variations thereof.
21. Waiver
No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22. Rights and remedies
Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law. Without prejudice to any other rights or remedies that the Supplier may have, the Customer acknowledges and agrees that damages alone would not be an adequate remedy for breach of clauses 5, 14 or 18 of these Terms by the Customer. Accordingly, the Supplier shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these clauses in these Terms.
23. Severance
23.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
24. Entire agreement
24.1 These Terms constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter.
24.2 Each party acknowledges that in entering into these Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.
24.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Terms.
24.4 Nothing in this clause shall limit or exclude any liability for fraud.
25. Assignment
25.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
25.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
26. No partnership or agency
Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise any party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
27. Notices
27.1 Any notice required to be given under these Terms shall be in writing via (1) product notifications, or (2) email notifications to the email address of either the Supplier or the Customer, as applicable, and as may be notified by either from time to time.
28. Governing law and Jurisdiction
These Terms and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland and the parties irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).
