Terms and Conditions
The terms and conditions for using and contributing to the PlanBookTravel site.
(2007 PLANBOOKTRAVEL WEBSITE AGREEMENT)
This is a legally binding Agreement between you (“You” or “Your”) and Digitravel Pty Ltd ABN 76 693 841 523 (“We”, “Us”, “Our” or “PlanBookTravel”).
Legally Binding Agreement
1. By using the PlanBookTravel website (www.planbooktravel.com.au and all its associated content, information, materials and services), or by using any service, facility or functionality provided by PlanBookTravel through the PlanBookTravel website, You agree to the terms and conditions of this Agreement.
2. You agree that You have read the terms and conditions of this Agreement and You agree to be bound by them.
3. You agree that You are over the age of 18 years or that You have the legal power and are fully competent to enter into this Agreement.
4. This Agreement commences when You begin using the PlanBookTravel website, whichever is the earlier.
5. This Agreement may be terminated by Us at any time by posting a notice on the PlanBookTravel website terminating this Agreement, by referring to it as the “2007 PlanBookTravel Website Agreement”) and terminating it.
6. If We terminate this Agreement under clause 5 we may (at our complete discretion) replace it with a subsequent Agreement and if We do so You agree that any further or continuing use of the PlanBookTravel website by You will be subject to terms and conditions of the replacing Agreement.
7. We may also (at Our complete discretion) terminate this Agreement between You and Us at any time and with immediate effect by:
a. writing to You to notify of termination, or
b. by terminating the provision of any services to You, either by informing You of that termination, or by adopting technological measures to prevent your use or access to the PlanBookTravel website or any of its facilities or services.
8. You agree that You are solely responsible for keeping yourself informed of the status of this Agreement and whether it has been replaced by any subsequent agreement.
9. Without limiting clause 7, We may terminate this Agreement in any of the ways set out in clause 7, if You breach any of its terms and conditions.
10. For the avoidance of doubt, other any than licence to PlanBookTravel in respect of the User Submissions, all licences granted to You by this Agreement terminate if this Agreement is terminated, PlanBookTravel may immediately remove any material placed by You on the PlanBookTravel website, immediately disable any access rights enjoyed by You under this Agreement.
Links to Third Party Sites and Services
11. PlanBookTravel does not warrant, and hereby explicitly excludes all warranties of any kind in relation to third party sites or services accessible on the PlanBookTravel website or through hyperlinks provided on the PlanBookTravel website. You agree that any use by You of any such third party sites or services is entirely at Your own risk.
Licences to You
12. Subject to the terms of this Agreement, PlanBookTravel grants you a revocable, non-exclusive licence, while this Agreement remains in effect, to
a. use the PlanBookTravel website (and any service or facility associated with it) solely for your personal and non-commercial use;
b. create an account on the PlanBookTravel website for facilities or services on the PlanBookTravel website for which an account is required;
c. to upload and maintain User Submissions (including any text, images or media of any kind) on the PlanBookTravel website, subject to these terms and conditions and any user content policies adopted from time to time by PlanBookTravel.
13. The licence set out in clause 12 is solely for the purpose of using the PlanBookTravel site for purpose of browsing, contributing, reviewing and rating location content on the planbooktravel site.
14. While the licence in clause 12 is in effect You may change or update User Submissions using the facilities provided by the PlanBookTravel website.
15. PlanBookTravel may allow you to upload materials (including text, graphics, sound or multimedia files) “User Submissions”, to the PlanBookTravel website.
16. PlanBookTravel may (at its discretion) place the User Submissions on the PlanBookTravel website or allow User Submissions to remain on the PlanBookTravel website and you explicitly consent to User Submissions being made available to third parties.
17. You agree that the PlanBookTravel™ trade name is the exclusive property of PlanBookTravel, and that you acquire no right, title, claim or interest in the PlanBookTravel trade name by virtue of this agreement or your use of the PlanBookTravel website.
18. Subject to clause 19, You agree that PlanBookTravel is the sole owner or licensee of all content of any kind on the PlanBookTravel site including without limitation, text, software, code, scripts, graphics, sound or video files, layout or data (“Content”) and that other than as provided in this Agreement you have no right, title, claim or interest of any kind in the Content.
19. PlanBookTravel does not claim ownership of Content You submit or make available for inclusion on the Site. However, regarding Content You submit or make available for inclusion on publicly accessible areas of the Site, You grant PlanBookTravel the following worldwide, royalty-free and non-exclusive license(s), the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Site solely for the purposes of providing and promoting PlanBookTravel (and its successors' and affiliates'). This
license exists only for as long as You elect to continue to include such Content on the Site and will terminate at the time You remove or PlanBookTravel removes such Content from the Site. You further agree that You will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to post the material and to grant Planbooktravel all of the license rights granted herein.
20. Subject to the terms of this Agreement regarding use of the PlanBookTravel website, PlanBookTravel hereby grants You a perpetual, irrevocable, non-exclusive royalty free licence to use, adapt or modify the User Submissions for any purpose.
21. Without guaranteeing that no such infringement will occur, PlanBookTravel will do its best to ensure the protection of Your Moral Rights in the User Submissions by any one or more of the following acts:
a. Failure to attribute You as the author of the User Submissions;
b. Attribution of authorship in the User Submissions to another party;
c. Treatment of the User Submissions in a derogatory manner including by disaggregation, modification or publication or re-publication with other material.
22. You explicitly acknowledge that PlanBookTravel reserves the right to exercise all rights of a copyright holder in respect of User Submissions and, without limitation, to publish or re-publish the User Submissions on the PlanBookTravel website or through other media of any kind, including print publications, broadcast or, without limitation, otherwise.
23. For the avoidance of doubt, if any provision vesting intellectual property rights in the User Submissions in PlanBookTravel is ineffective, You hereby grant PlanBookTravel a non-exclusive, perpetual, irrevocable and royalty free licence to exercise any rights in the User Submission that may be exercised by the owner of the intellectual property rights in the User Submissions, other than the right to assign the material to a third party.
User Obligations and Prohibited Uses
25. You agree that you are entirely responsible for any material you place on the User Site.
26. If you create an account on the PlanBookTravel website You agree that You do so entirely at your own risk and are solely responsible for any use of Your account. You must keep any account password secure and are solely responsible for any loss arising from breach of security for your account.
27. You may only use the PlanBookTravel website in a way that does not breach any law or any right of any person. You may not use the licences granted by this Agreement for any purpose other than the purpose set out in this Agreement. Without limitation of these terms, You may not upload any of the following:
a. any offensive or unlawful materials including material that is defamatory or that any person may find derogatory or offensive including: any material involving profanity or sexually explicit material; any pornographic material (including child pornography); any material of a discriminatory nature or which incites hatred or contempt of any person or group including on the grounds of race, gender, sexual preference, nationality, religious or political belief; or which promotes any group advocating discrimination or hatred of others;
b. material for the promotion of any political party or political cause;
c. material that infringes the business name or intellectual property rights of any party (including infringement of copyright or trade mark rights);
d. material in which any third party holds any intellectual property rights or which is a trade secret or confidential to a third party;
e. material that involves instruction or encouragement of any illegal act including any act of violence or any instruction in the construction or use of materials that can cause injury or death to any person, group or property.
f. material that involves breaches of the Trade Practices Act (Cth) or Fair Trading legislation in any state or territory legislation or any equivalent law or legislation in jurisdictions outside Australia.
28. You must not in the PlanBookTravel website provide any linkages to or promotion of any website or webpages or other electronic files that contain any material described in clause 16.
29. You must not:
a. Use the PlanBookTravel website for commercial purposes;
b. Copy the Content or any of it for commercial purposes;
c. Print or copy more than one copy of the Content or any part of it for any other purpose;
d. Cause the PlanBookTravel website to be displayed in any other website in conjunction with any other material;
e. Sell, offer to sell, licence or purport to licence, distribute or purport to distribute to any third party any Content;
f. Remove any copyright or other proprietary or legal notices from any Content;
g. Circumvent or attempt to circumvent, or disable or modify any functional security feature or other feature of the PlanBookTravel website;
h. Modify any part of the PlanBookTravel website or any part of it or any Content other than Your User Submissions;
i. Collect, use or disclose any personally identifiable information of other users of the PlanBookTravel website for any purpose whatsoever;
j. Breach the privacy rights of any person in your use of the PlanBookTravel website, including in any User Submission.
k. Attempt to contact any other users of the PlanBookTravel website for any purposes not explicitly permitted on the PlanBookTravel website;
l. Impersonate any other person in your use of the PlanBookTravel website or use another person’s account without their permission;
Take Down Rights
30. PlanBookTravel may, at its absolute discretion, refuse to display, or take down any link or material placed by You on the PlanBookTravel website which it believes is in breach of this Agreement or which is otherwise unlawful, offensive or in breach of the rights of any person, or take any other measures it believes necessary in its operation of the PlanBookTravel website to ensure that this Agreement its not breached, to ensure that You or PlanBookTravel does not breach the law or any right of any person, or to protect the reputation or business interests of PlanBookTravel.
31. If You are provided with password access, You agree to provide, and keep PlanBookTravel provided at all times with a functional physical address, email address, telephone number and facsimile number to which PlanBookTravel may send communications relating to the operation of the PlanBookTravel website or information relating to PlanBookTravel services.
32. You hereby agree to defend, hold harmless, indemnify and agree to keep indemnified PlanBookTravel, its parent corporation, its principals, officers, employees and agents (“the Indemnified”) against any loss, damage, injury, expense, cost (including legal costs on a full indemnity basis), debt, suit or claim arising directly or indirectly from:
a. your use of the PlanBookTravel website and any associated facility, service or functionality connected with the site;
b. your breach of this Agreement, or
c. any User Submissions supplied by You or any act or failure to act by You directly or indirectly in connection with this Agreement and the PlanBookTravel website (including without limitation any action or inaction involving the violation of any right of a third party or any action or inaction in violation of any provision of law in any jurisdiction);
d. any wilfully wrongful or negligent act or omission by You or any agent on your behalf in relation to this Agreement or the PlanBookTravel website.
Exclusion of Liability
33. You agree that you use the PlanBookTravel website entirely at your sole risk.
34. To the full extent permitted by law, and without limitation to any other provisions of this Agreement, neither PlanBookTravel, nor any officer, employee, contractor or agent of PlanBookTravel shall be liable to You in any circumstances, whether in contract, tort (including negligence) or under statute for any loss, liability, cost, damage or injury suffered by You or any third party and howsoever arising directly or indirectly in connection with your use of the PlanBookTravel website or any services, facilities or functionality on the PlanBookTravel website or this Agreement.
35. To the full extent permitted by law, and without limitation of any other provision of this Agreement, PlanBookTravel shall not be liable to You or any third party in any circumstance for any liability for loss of profits or anticipated savings, loss or corruption of data, loss of information, images or files of any kind, economic loss of any kind, indirect or consequential loss or damage whether in contract, tort (including negligence) or under any statute or otherwise arising from or related in any way to this Agreement.
36. To the full extent permitted by law, and without limitation of any other provision of this Agreement, you acknowledge that while PlanBookTravel will make reasonable efforts to maintain the PlanBookTravel and Advertiser Site while this Agreement is in effect, PlanBookTravel will not be liable to you or any third party, and You will make no claim against PlanBookTravel arising from any interruption of service, any error in the functioning of the PlanBookTravel website or any suspension or termination of service.
37. To the full extent permitted by law, and without limitation to any other provision of this Agreement, you agree that PlanBookTravel will not be liable to You and that You will not make any claim, demand or institute any proceeding of any nature in any jurisdiction (whether in contract, tort (including negligence), defamation, breach of privacy or confidentiality, statute or otherwise), and in relation to any third party material posted on the PlanBookTravel website, or accessible through it.
Warranties and Representations
38. PlanBookTravel hereby explicitly excludes all warranties of any kind (including warranties implied by statute or otherwise) in relation to this Agreement or any service or licence connected with this Agreement and without limitation, PlanBookTravel:
a. does not warrant the accuracy or reliability of any information or content on the PlanBookTravel website or that it will be free of errors, viruses or bugs;
b. does not warrant the fitness of the services for any purpose or that the website will meet your requirements;
c. does not warrant that use of the site will not infringe the intellectual property rights of any third party;
d. does not warrant that the PlanBookTravel website will remain accessible and available for any period of time, or that PlanBookTravel will continue to maintain or improve the functionality of the PlanBookTravel website, or that the PlanBookTravel website or the User Site will be free of errors;
e. does not warrant or represent that User Submissions will be immediately displayed or displayed within any period, but states that there may be a delay between submission of material and its display or that the material may not be displayed at all;
f. excludes all warranties in relation to any User Submissions posted by other parties, or links, or third party materials or services that are accessible through the PlanBookTravel website.
Development of PlanBookTravel Website
39. While PlanBookTravel will exercise reasonable endeavours to minimise site disruption, you agree that PlanBookTravel is entitled at any time to make changes to, update or develop the functionality of the PlanBookTravel website including the layout, access and maintenance facilities and all other aspects of the PlanBookTravel Website.
Robots and Automated Use
40. This Agreement is binding on any party (“Robotic User”) which uses robots, spiders, offline readers, or otherwise accesses the PlanBookTravel website by automated means that do not involve human action.
41. A Robotic User must not cause automated access of the PlanBookTravel website in a manner which impedes, or causes harm to the PlanBookTravel website, including without limitation causing request messages to be sent with high frequency to the server.
42. PlanBookTravel grants Robotic Users who are operators of public search engines permission to access the PlanBookTravel website solely for the purpose of creating searchable data or searchable indexes to assist end users to locate the PlanBookTravel website. Such users do not have permission to otherwise copy or use material from the PlanBookTravel website.
43. Each party to this Agreement is an independent contractor and neither PlanBookTravel nor its officers, employees or agents are agents, employees or joint venturers in respect of You. Nothing in this Agreement creates a relationship of principal and agent, or employee and employer between the parties. Neither party shall represent that it is an agent of the other or purport to have authority to bind the other.
44. PlanBookTravel shall not be liable for any event or factor outside its control (including but not limited to acts of God, war, terrorism, natural disaster or interruption to means of communication) that prevents or impedes the maintenance or availability of the PlanBookTravel website, but PlanBookTravel shall be excused from performance of this Agreement to the extent that it is so prevented or impeded. PlanBookTravel shall resume performance of its obligations as soon as practicable after an event or factor referred to in this clause has been removed.
45. PlanBookTravel may subcontract any of its rights or obligations under this Agreement and may assign, novate, or licence any right under this Agreement to a third party.
46. You must not assign, novate, licence or sub-contract Your rights or obligations under this Agreement.
47. A waiver by a party in relation to this Agreement will be of no effect unless the waiver is in writing signed by the party granting the waiver.
48. If any provision of this Agreement is unenforceable it shall be read down or severed from this Agreement, so that the remaining provisions of the Agreement remain in effect.
49. This Agreement entirely supercedes any previous negotiations, representations or agreements (oral or written) between the parties and is the entire Agreement between them in respect of its subject matter.
50. Headings in this Agreement are for convenience only and do not affect its meaning or interpretation.
51. Except as otherwise provided by this Agreement, this Agreement may only be varied by instrument in writing signed by both parties.
52. Any communication between the parties provided by this Agreement may be sent by PlanBookTravel:
a. to Your last known address (including contact email, or facsimile) as advised by You to PlanBookTravel;
b. To the PlanBookTravel Website, so long as the communication is posted for a minimum period of one week; and
any such communication shall be effective notice for the purposes of this Agreement.
53. This Agreement is governed by the law in effect in the State of Victoria and subject to clause 38, the parties agree to submit any dispute or claim regarding this Agreement or the PlanBookTravel website to the exclusive jurisdiction of courts and tribunals able to exercise jurisdiction in that state.
54. Prior to reference of a dispute to any court or tribunal the parties agree to exercise reasonable endeavours to resolve the dispute by negotiation between them, or through mediation by an independent third party on such terms as agreed by the parties. This clause shall have no further operation if attempts to resolve the dispute under this clause have, in the opinion of either party, failed, after the expiry of more than one month from the initial notification of a dispute by one party to the other.
55. The PlanBookTravel website is provided from Australia and You are solely responsible for compliance with local law, if You access the PlanBookTravel website from any other jurisdiction.
56. Termination of this Agreement will not affect the rights of either party accrued at the time of termination.
57. Clauses 17-24, 32-37, 53 and 54 of this Agreement survive termination and remain in full force and effect.