1. Introduction
1.1. Our purpose
Booking Factory offers a complete hospitality property management solution. Booking Factory is a cloud-based property management system used worldwide by different types of accommodation, from independent hotels to single apartments on one or multiple locations, wedding venues and more. We keep adding automations and 3rd party integration to help you run the business with efficiency, leaving you time to focus on your guest.
1.2. Legal Agreement
These Booking Factory Terms of Use (“Terms”), together with additional terms which apply to our Products; Acceptable Use Policy, Privacy Policy, and any other references policies and attachments (“Booking Factory Terms”), all set forth the entire term and conditions applicable to each user of Booking Factory Products.
The Booking Factory Terms constitute a binding and enforceable legal contract between Flekaskil ehf. Höfðabakki 9a, 110 Reykjavík (“Booking Factory”), and you in relation to the use of any Products (“Agreement”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then "Customer" or "you" means your company, and you are binding your company to this Agreement. This Agreement applies to Booking Factory add-ons or plugins that you purchase from the Booking Factory Marketplace. However, it does not apply to add-ons or plugins from other vendors on the Booking Factory Marketplace, which are covered under the Booking Factory Marketplace Terms of Use.
You may use our Products only if you fully agree to the Booking Factory Terms. By clicking on the "I agree" (or similar button) that is presented to you at the time of your Order, you accept that you are bound by the Booking Factory Terms and that you will comply with them.
1.3. User Account
In order to place orders or access, receive any Products, you must register and create account with Booking Factory (“User Account”).
You should keep your User Account information confidential, as you will be solely and fully responsible for all activities that occur under your User Account (including for any representations, warranties and undertakings made therein), whether or not specifically authorized by you, and for any damages, expenses or losses that may result from such activities.
Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account.
2. Types of Booking Factory Products and subscription plans
The Terms governs (a) Booking Factory’s commercially available downloadable software products (currently designated as “Server” or “Data Center” deployments) (“Software”), (b) Booking Factory’s hosted or cloud-based solutions (currently designated as "Cloud" deployments) ("Hosted Services"), and (c) any related support or maintenance services provided by Booking Factory. Software and Hosted Services, together with related Documentation, are referred to as "Products". The Products and their permitted use are further described in Booking Factory’s standard documentation ("Documentation"). Section 5 Software Terms applies specifically to Software, and Section 6 Hosted Services Terms applies specifically to Hosted Services, but unless otherwise specified, other provisions of this Agreement apply to all Products.
Booking Factory offers two different subscription plans:
Basic Plan: Property Management System with booking engine, channel manager integration, and 1st level support (“Basic Plan”)
Partner Plan: Includes everything that the Basic Plan has to offer, but includes also Account Manager services, which can be divided into four categories; OTA management, revenue management, online presence, and accounting oversight (“Partner Plan”).
3. Orders
3.1 Directly with Booking Factory
Booking Factory’s Products ordering documentation or purchase flow ("Order") will specify your authorized scope of use for the Products, which may include: (a) number and type of Authorized Users (as defined below), (b) storage or capacity (for Hosted Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (as applicable, the "Scope of Use"). The term "Order" also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.
3.2 Reseller Orders
This Agreement applies whether you purchase our Products directly from Booking Factory or through authorized resellers (each, a "Reseller"). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by Reseller to you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Booking Factory’s behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.
4 Authorized Users
Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product may access and use the Products ("Authorized Users"). Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may also permit your customers to have limited access to certain Products as Authorized Users. You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order or, in some cases, directly through the Product. In all cases, you must pay the applicable fee, according to our price list at any given time, for the increased number of Authorized Users. You are responsible for compliance with the Booking Factory Terms by all Authorized Users, including informing all Authorized Users of the Booking Factory Terms. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. "Affiliate" means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where "control" means the power to direct the management or affairs of an entity, and "ownership" means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
5 Software Terms
5.1 Your License Rights
Booking Factory grants you a non-exclusive, non-sublicensable and non-transferable license to install and use the Software during the applicable License Term in accordance with the Terms, your applicable Scope of Use, and the Documentation. The term of each Software license ("License Term") will be specified in your Order. Your License Term will end upon any termination of this Agreement, even if it is identified as "perpetual" or if no expiration date is specified in your Order. The Software requires a license key in order to operate, which will be delivered as described in 10.2 Delivery.
5.2 Number of Instances
Unless otherwise specified in your Order, for each Software license that you purchase, you may install one production instance of the Software on systems owned or operated by you (or your third-party service providers so long as you remain responsible for their compliance with the Booking Factory Terms). We also make available "developer" licenses free of charge for certain of our Software offerings to allow you to deploy non-production instances, such as for staging or QA purposes. Details for how to request non-production licenses are available on our website.
5.3 Your Modifications
Subject to the Terms (including without limitation Section 2 (Combining the Products with Open Source Software) of Third Party Code in Booking Factory Products): (1) for any elements of the Software provided by Booking Factory in source code form, and to the extent permitted in the Documentation, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software and (2) you may also modify the Documentation to reflect your permitted modifications of the Software source code or the particular use of the Products within your organization. Any modified source code or Documentation constitutes "Your Modifications". You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software, but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, Booking Factory has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Software) or your breach of this Section 5.3 Your Modifications. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of Booking Factory at your expense.
5.4 Attribution
In any use of the Software, you must include the following attribution to Booking Factory on all user interfaces in the following format: "Powered by Booking Factory," which must in every case include a hyperlink to https://bookingfactory.io/, and which must be in the same format as delivered in the Software.
5.5 Third Party Code
The Software includes code and libraries licensed to us by third parties, including open source software. See Third Party Code in Booking Factory Products for additional provisions regarding our use of third-party code.
6 Hosted Services Terms
6.1 Access to Hosted Services
Booking Factory grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with the Terms, your applicable Scope of Use and the Documentation. If Booking Factory offers client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.
6.2 Subscription Terms and Renewals
Hosted Services are provided on a subscription basis for a set term specified in your Order ("Subscription Term").
For Basic Plan, subscription will automatically renew for periods equal to your initial Subscription Term, and you will be charged according to the price list at any given time, unless you cancel your subscription through your PMS account. The Subscription Term starts on the day any onboarding work is innitiated, or day of your onboarding meeting (or the day that the account is created if used without onboarding). Your subscription will terminate on request at the end of then-current billing cycle or signed commitment period, and you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
For Partner Plan subscriptions, a contract is signed in the beginning of the partnership detailing renewal and cancellation terms.
All future fees, including but not exclusive to products and services such as Google Hotel Ads, BF.Viva, per booking fees, or any added services will be charged at the time of cancellation with the recorded income values for the future as set out in our price list at any given time, whether you use the Products or not.
Any committment period fees will be charged if the account cancellation is done before the commitment period ends.
Any outstanding invoices need to be settled at the time of cancellation.
6.3 Credentials
You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are solely and fully responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Booking Factory of any unauthorized use of which you become aware. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of the terms of this Agreement.
6.4 Your Data
"Your Data" means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Booking Factory. Subject to the Terms, you hereby grant to Booking Factory a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service. Booking Factory may also access your account or instance in order to respond to your support requests.
6.5 Security
Booking Factory implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
6.6 Storage Limits
There may be storage limits associated with a particular Hosted Service. These limits are described in the services descriptions on our websites or in the Documentation for the particular Hosted Service. Booking Factory reserves the right to charge for additional storage or overage fees at the rates, according to our price list at any given time. We may impose new, or may modify existing, storage limits for the Hosted Services at any time in our discretion, with or without notice to you.
7 Privacy
Certain parts of providing Booking Factory’s Products require or involve the submission, collection and/or use of certain personally identifying or identifiable information. In particular and as part of accessing or using the Products, Booking Factory may collect, access and use certain data pertaining to Authorized Users, including the activities or navigation undertaken by the Authorized Users through the Products. Flekaskil ehf., acts as a processor, regarding the processing that takes place in connection with the use of the Products. All processing of information is carried out in accordance with Flekaskil ehf.’s Terms on the Processing of Personal Data.
8 Support and Maintenance
Booking Factory will provide the support and maintenance services for the Products described in the Booking Factory Support Policy ("Support and Maintenance") during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the Booking Factory Support Policy and will be provided at the support level and during the support term specified in your Order. Booking Factory Support Policy may be modified by Booking Factory from time to time to reflect process improvements or changing practices. Support and Maintenance for Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. "New Releases" are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.
9 TAM and Training Services
We will provide Technical Account Manager (“TAM”) and training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets ("Ancillary Services"). Booking Factory shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide ("Training Materials"). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, you will reimburse Booking Factory for reasonable travel and lodging expenses as incurred.
10 Returns and Financial Terms
10.1 Return Policy
As part of our commitment to customer satisfaction, it is our customary business practice to allow customers to return a Product within 30 days of accepting the Product for any reason or no reason and to receive a refund of the amount paid for the returned Product. In the context of Software, a return means that we will disable the license key that allowed the Software to operate. In the context of Hosted Services, a return means that we will disable access to the Hosted Service. We will not accept returns after the 30-day return period or if the Onboarding has been launched. You understand that Booking Factory may change this practice in the future in accordance with Section 25.1 Changes and Updates.
10.2 Delivery
We will deliver the applicable license keys (in the case of Software) or login instructions (in the case of Hosted Services) to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that Booking Factory has no further delivery obligation with respect to the Software after delivery of the license keys.
10.3 Payment
You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. We will charge tax if required to do so by law. Other than as expressly set forth in Section 10.1 Return Policy, all amounts are non-refundable, non-cancellable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you add Authorized Users during your License Term or Subscription Term, we will charge you for the increased number of Authorized Users according to our price list, at any given time, in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable. If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller.
10.4 Basic Plan
If you have purchased the Basic Plan you agree to pay a (monthly being a minimum) subscription term fee according to our price list at any given time, which depends on the number of your accommodation’s units, as further stipulated in your Order.
10.5 Partner Plan
If you have purchased the Partner Plan, you agree to pay variable fee based on the accommodation’s income during the past month. The fee is calculated as such % (percentage) of income recorded in the Booking Factory during the past month, according to our price list at any given time. However the fee shall never be lower than the minimum charge according to our price list at any given time, as further stipulated in your Order. During the commitment, if the Partner Plan subscription is cancelled, Booking Factory is entitled to such % of income recorded in the Booking Factory for the next 6 months, as set out in our price list at any given time, whether you use the Products or not.
10.6 No-Charge Products
We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below ("No-Charge Products"). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available ("Beta Versions") are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 10.6 No-Charge Products. All information regarding the characteristics, features or performance of Beta Versions constitutes Booking Factory’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
10.7 Payment Providers/Acquirers
You agree that when purchasing Booking Factory’s Products with credit card, Booking Factory or its affiliates, are authorised to charge a platform fee from the payment providers (acquirers), on all transaction running through Booking Factory, in accordance with our price list at any given time.
10.8 Taxes
Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Booking Factory, you must pay to Booking Factory the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Booking Factory any such exemption information and Booking Factory will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
11 Restrictions
Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
12 Your Development of Add-Ons
12.1 License to Developer Guides
From time to time, Booking Factory may publish SDK’s or API’s and associated guidelines ("Developer Guides") to allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Products ("Add-Ons"). You may distribute your Add-Ons to third parties, but only for those Products permitted by Booking Factory, and only in accordance with the Developer Guides.
12.2 Conditions to Development of Add-Ons
Notwithstanding anything in this Agreement to the contrary, Booking Factory has no support, warranty, indemnification or other obligation or liability with respect to your Add-Ons or their combination, interaction or use with the Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Add-Ons (including but not limited to any representations or warranties you make about your Add-Ons) or your breach of this Section 12.2 Conditions to Development of Add-Ons.
13 Meta Search Engines
By accepting the Terms, you authorize Booking Factory to place your accommodation on Meta Search Engines, e.g., Google Hotel Ads, and you agree that Booking Factory may send the availability and price of your accommodation to any Meta Search Engines. Payment for this service is according to our price list, at any given time.
14 License Certifications and Audits
At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Booking Factory at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.
15 Ownership and Feedback
Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as "purchase" or "sale".
All rights, title and interest in and to the Products (including all No-Charge Product) any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law, including but not limited to any images or other media, website templates, underlying technology, design, the “look and feel” of the Products, any modifications or derivative works of the foregoing created by or for Booking Factory, including without limitation as they may incorporate Feedback ("Booking Factory Technology").
From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Booking Factory, including sharing Your Modifications or in the course of receiving Support and Maintenance ("Feedback"). Booking Factory may in connection with any of its products freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Booking Factory's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
16 Confidentiality
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Booking Factory Technology and any performance information relating to the Products shall be deemed Confidential Information of Booking Factory without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
17 Term and Termination
This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the "Term"), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Booking Factory, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Booking Factory Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third-party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 10.3 Payment, 10.8 Taxes, 10.6 No-Charge Products, (disclaimers and use restrictions only), 11 (Restrictions), 12.2 Conditions to Development of Add-Ons, 14 License Certifications and Audits, 15 Ownership and Feedback, 16 Confidentiality, 17 Term and Termination, 18.2 WARRANTY DISCLAIMER, 19 Limitation of Liability, 20 Third Party Vendor Products, 23 Dispute Resolution, 25 General Provisions.
18 Warranty and Disclaimer
18.1 Due Authority
Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
18.2 WARRANTY DISCLAIMER
ALL PRODUCTS ARE PROVIDED "AS IS," AND Booking Factory AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY – ALL TO THE FULLEST EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. BOOKING FACTORY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BOOKING FACTORY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER BOOKING FACTORY NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
19 Limitation of Liability
NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 1 MONTH IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 19 Limitation of Liability SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 11 Restrictions OR SECTION 2 (COMBINING THE PRODUCTS WITH OPEN-SOURCE SOFTWARE) OF THIRD-PARTY CODE IN Booking Factory PRODUCTS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD-PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER.
The parties agree that the limitations specified in this Section 19 Limitation of Liability will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
20 Third Party Vendor Products
Booking Factory or third parties may from time to time make available to you (e.g., through the Booking Factory Marketplace) third-party products or services, including but not limited to add-ons and plugins as well as implementation, customization, training, and other consulting services. If you procure any of these third-party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third-party vendor. Booking Factory does not warrant or support non-Booking Factory products or services, whether or not they are designated by Booking Factory as "verified" or otherwise and disclaims all liability for such products or services. If you install or enable any third-party products or services for use with Booking Factory products, you acknowledge that Booking Factory may allow the vendors of those products and services to access Your Data as required for the interoperation and support of such add-ons with the Booking Factory products. Booking Factory shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.
21 Publicity Rights
We may identify you as a Booking Factory customer in our promotional materials. You may request that we stop doing so by submitting an email to hello@bookingfactory.io at any time. Please note that it may take us up to 30 days to process your request.
22 Improving Our Products
We are always striving to improve our Products. In order to do so, we need to measure, analyse, and aggregate how users interact with our Products, such as usage patterns and characteristics of our user base. We collect and use analytics data regarding the use of our Products as described in our Privacy Policy.
23 Dispute Resolution
23.1 Dispute Resolution; Arbitration
In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in the following city as mutually agreed between the parties: London (UK). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
23.2 Governing Law; Jurisdiction.
This Agreement will be governed by and construed in accordance with the applicable laws of the United Kingdom. Booking Factory may bring a claim for equitable relief in any court with proper jurisdiction.
23.3 Injunctive Relief; Enforcement
Notwithstanding the provisions of Section 23.1 Dispute Resolution; Arbitration, nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
24.4 Exclusion of UN Convention and UCITA
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
25 General Provisions
25.1 Changes and Updates
We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your Booking Factory account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, "including" (and its variants) means "including without limitation" (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors.
25.2 Notices
Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by email to hello@bookingfactory.io. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
25.3 Relationship
This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
25.4 Entire agreement
This Agreement, together with the Booking Factory Terms is the entire agreement between you and Booking Factory relating to the Products and supersedes all prior or contemporaneous agreements, understandings, promises, conditions, negotiations, covenants or representations, whether oral or written with respect to the Products or any other subject matter covered by this Agreement.
25.5 Assignment
You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. Any attempted or actual assignment hereof without Bookings Factory’s prior explicit and written consent will be null and void.
We may transfer our rights and obligations under these Agreement to another party. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
25.6 Severability
If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal, then such provision shall be deemed severable and will not affect the validity and enforceability of the remaining provisions. Other provisions shall continue in full force and effect.
25.7 Interpretation
Any heading, caption or section title contained herein, is provided only for convenience, and in no way defines or explain any section or provisions hereof, or legally binds any of us in any way.
25.8 Customer Service Contact
hello@bookingfactory.io
