OWNER’S TERMS & CONDITIONS
A. OnlyForLuxury (“OFL”) carries on the business of a luxury rental platform, providing luxury rentals to users/guests.
B. The Owner carries on the business of providing luxury rental Property/Properties.
C. OFL wishes to engage the Owner for the purposes of advertisement of the rental Property/Properties. The Owner, in signing this agreement, acknowledges and accepts the terms and conditions of this Agreement and is bound by its conditions.
Background to the Agreement
OFL is the current Booking Agent for property Owners and/or their representatives (“Owner”). OFL markets the property and arranges bookings for the property on behalf of the Owner.
The parties agree as follows:
The following definitions apply in this agreement unless the context otherwise requires.
Agreement: Means this document. Owner: Means collectively, the property Owner and/or representative and/or agent of the property Owner.
Booking: Means an OFL Booking.
Business Day: Means any day (other than Saturday or Sunday) on which banks are open in Australia for normal banking business.
Claim: Means in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
Commissions: Means the fees and commissions payable to OFL
Confidential Information: Mans all information which is not in the public domain and which is reasonably regarded by a party as confidential to it and which the other party becomes aware of in the course of this Agreement, including, but not limited to, information relating to:
(a) Business methods and management systems;
(b) Financial and business information of any kind; and
(c) Strategic information relating to marketing, advertising, or any other aspect of a business.
Guest Contract: Means the contract entered into between the guest who has booked the accommodation and the owner of the property being rented.
Property: Includes estates, lands, houses, home units, flats, Apartments, business premises, and properties of all kinds marketed by OFL on behalf of its owners, agents or representatives.
Guest: Means a customer who has booked a property of the Owner for a specified time through OFL.
Online Public: Means Marketed Online or Published Online. For the avoidance of doubt, Online Public excludes availability that does not involve the use of the internet, such as bookings made in person at Your reception.
(i) “Marketed Online” means marketed to the general public online by any means, including on mobile applications but excluding online marketing that is not aimed at the general public including, in particular, email, SMS, and instant messaging communications; and
(ii) “Published Online” means available to the general public online by any means, including on mobile applications and, in the case of Rates and conditions, includes the display (whether or not on a channel owned and controlled by You) of the actual Rates or conditions or sufficient detail for the consumer to calculate such Rates or Condition.
Owner: Refers to the Property owner and includes his or her executors, administrators or anyone duly authorized on behalf of the Owner, and where the Owner is more than one person or a collective entity, the words “You” or “Your” apply jointly.
Rate: Means (i) the Property price, in respect of OFL.
Property Price: Means the amount paid or payable by a guest in respect of the relevant property, not including any charges or fees imposed on guests by OFL.
Writing: Includes printing, typing and other modes of reproducing words in a visible form and “written” has a corresponding meaning.
You or Your: Means collectively, the Property, the Property’s owner and, if applicable, the entity managing the Property on behalf of the Property’s owner.
Website: Means www.OnlyForLuxury.com
In this agreement, unless the context otherwise requires:
(a) A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(b) The singular includes the plural and vice versa;
(c) A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government, and vice versa;
(d) A reference to any gender includes all genders;
(e) A reference to a clause or schedule is to a clause or schedule of this agreement;
(f) A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
(g) Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(h) Where an expression is defined anywhere in this agreement it has the same meaning throughout; and
(i) A reference to “dollars” or “$” is to an amount in United States Dollar (USD).
1. 3 Headings
In this agreement, headings are for convenience of reference only and do not affect interpretation.
2. OBLIGATIONS OF THE OFL
2.1 Service Provided
(a) The Owner of the property or their respective agent (with the consent of the owner) hereby appoints and authorises OFL to market and advertise Your Property on behalf of You through OFL’s Social Media platforms and Website; www.OnlyForLuxury.com
(b)The Owner’s Property will be displayed on OFL’s Website when the property is submitted, subject to OFL’s approval of the Property listing.
(c) OFL may post the Property of the Owner on Social Media in such manner that the Property will be visible for the Public.
(d) The Owner will provide or deliver to OFL up to date availability information for the Property and access to the Owner’s booking systems to ensure the correct availability information will appear on the Website. This is to occur when the Owner submits their Property through OFL’s Website.
(e) The Owner will pay OFL commission for bookings in accordance with the terms set out in clause 4.
(f) OFL warrants that the Advertisement will not contain any subject matter which will, or is likely to give rise to any actions based on any of the following:
(i) Libel, slander, defamation or unfair product comparison;
(ii) Indecent, false, misleading or deceptive conduct;
(iii) The infringement of any rights (including any intellectual property rights)
of any third party;
(iv) The infringement of any moral rights of any third party; or
(v) The infringement of any relevant privacy laws.
(g) Subject to this Agreement, OFL will have complete authority to market and advertise the Property of the Owner on terms determined by this agreement in its absolute discretion.
(a) The Owner acknowledges (at all times) the contractual relationship is between the Guest and the Owner once any booking is made through the website.
(b) OFL is not a party to any rental or any other legal agreement and/or relationship between the Owner and the Guest. OFL provides the means to offer a service of marketing the property for rent.
(c)OFL does not mediate between the Guest and the Owner in the event of any dispute arising between them. You enter into any transaction with a third party entirely at your own risk.
(d) OFL acknowledges that the Guest Contract does not become unconditional until both of the following have occurred:
(i)The Guest has booked and paid either a deposit or the full amount for the
rental period of the Property.
(ii) Confirmation of the booking has been sent to the Guest and Owner
(e) The OFL’s right to commission accrues when the Owner enters into a contract for the rental of the Property to a Guest and OFL is the real or effective cause of the formation of that contract. The Owner/Agent representative who is signatory to this agreement acknowledges that any transaction that occurs outside of the platform provided through the OFL website is not valid and does not fall within the guidelines of fair play. Any such transaction is subject to OFL’s discretion to immediately terminate this agreement and remove the property listing.
(f) Nothing in this document will constitute or be deemed to constitute the relationship of principal and agent between the OFL and the Guest nor the relationship of partners as between the OFL and the Owner.
3. GENERAL TERMS
3.1 Booking Terms & Conditions
(a) The Owner agrees to abide by and comply with the OFL booking terms and conditions available on OFL’s website (which is subject to change).
(b) The Owner agrees to provide full and frank disclosure of the booking terms and conditions to the Guest prior to confirming a booking for a property.
3.2 Copyright, Trademark and Other Restrictions
(a) The Owner authorises content, such as photos/videos, of the property to be used by OFL to promote the property through OFL’s various websites and OFL’s own social media accounts.
(b) The Owner gives permission to use content from the Owner’s website or social media.
(c) The Owner agrees to indemnify and keep indemnified OFL and its agents from and against all actions, claims, demands, losses, damages, costs, and expenses arising from or incurred directly or indirectly by reason of:
(i) Any infringement or alleged infringement of copyright or other protected rights; and
(ii) Any act, default or omission by The Owner; The Owner’s employees, servants, agents or other persons connected with the Owner.
(iii) The OFL’s agents acting under the direction or control of the Owner or otherwise acting for the benefit of the Owner in accordance with the terms of this agreement.
(a) The Owner acknowledges it has read and understood OFL’s booking terms and conditions as far as they relate to receipt of payment which at the time of entering into this agreement are as follows:
(i) When a Booking is made by a Guest, OFL will deduct their commission (a fixed percentage of the deposited amount for the booking) and the remainder will be transferred to the Owner.
(ii) The Guest pays 50% deposit upon booking if the booking is made prior to 60 days of check-in. Once the deposit is received, within 3 business days it will be transferred to the Owner in full, minus OFL’s commission.
(iii) The remaining balance is payable 60 days prior to guests arrival to the Property by the Guest.
(iv) Full payment is required from the Guest where a booking is made within 60 days of the guest’s arrival.
(b) Please note for a first-time user, your first Guest payment through our system is disbursed to your bank account one day after your Guest’s scheduled check-in date. After that, you will be sent payment within 3 business days of when we receive any payments from Guests for future bookings.
(a) In the event that a Guest decides to cancel a booking for any reason whatsoever, the applicable charges for any cancellation to the Guest are as follows:
(i) 50% of the full rental price if notice of cancellation is received before or on 60 days prior to the commencement of the Guest staying in the property.
(ii) 100% of the total rental price if the cancellation is received less than 60 days prior to the commencement of the guest’s stay in the Property.
(c) The Owner will ensure the booking terms and conditions as far as they relate to cancellation and will recommend that the guest take out travel insurance which directly includes coverage for cancellation of accommodation.
(d) OFL is entitled to the Compensation Percentage (10%) of any penalty amounts charged to guests for no-shows, cancellations or similar booking modifications.
3.5 Feedback and complaints
(a) OFL does not mediate between the guest and the Owner in the event of any dispute arising between them.
(b) If OFL receives a complaint relating to a Property, OFL will inform the Owner so that the Owner has the ability to remedy the complaint as soon as possible.
4. RESPONSIBILITIES & OBLIGATIONS OF THE OWNER
The Owner agrees to:
(a) Pay commission to OFL for confirmed bookings at the rate agreed between OFL and the Owner.
(b) Any commission Payable to OFL will be deducted within 7 days from receiving the deposit for the booking.
(c) Perform any Services with respect to the Property in a diligent and professional manner according to any standards that normally apply.
(d) The owner must ensure and guarantee that all properties advertised on OFL are readily available and this availability will not be subject to change under any circumstances. If any issues occur (overbooking, unavailability of property, cancellation due to any reason on the owners behalf) the proprietor will be liable to refund the guest in full. OFL will not be liable for any of the above mentioned problems that may arise from advertising your property on this platform.
(e) Not to publish and/or offer rates that are less favorable to OFL than those on Your own Public Booking system or other distribution channels. Failure to abide by this condition may lead to a termination of contract.
(f) Any notice in relation to changes with the availability of the Property (i.e. restorations, construction or upgrading) must be delivered to OFL by hand, registered mail, email or phone call at the earliest opportunity.
(g) Must act in good faith in all dealings with the guest or any party of the guest and must not engage in conduct that may be harmful to the reputation or interests of OFL.
(h) The Owner agrees that they have full public liability insurance at all times, OFL may in its discretion require the Owner to submit proof of insurance from time to time within 14 days of the notice being given for such action. OFL takes no responsibility for providing insurance to the Owner.
(i)In instances of damage, harm caused in or around the property during the guests stay, the owner is responsible for its own liability and should arrange for the necessary measures to ensure that they are covered and abiding by the laws of their representative countries. OFL will not be liable for any such damages/claims.
(a) You the Owner agree to allocate and reserve the Property provided to OFL for display on and booking through the OFL System for each stay date capable of being booked during the Term.
(b) The Parties agree that OFL will be permitted to make Properties available for booking to Guests based on the availability provided by the proprietor to OFL.
(a) You the Owner agree that the Rates and Rate plans provided to OFL will be equal to or better than those made available and advertised through Your own online Public Booking or other distribution channels.
(b) Any rules, restrictions, policies, and/or conditions (including rules associated with cancellation) applicable to any Property made available through the OFL System shall be no more restrictive than those applicable to any comparable room that You make available through Your own Online Public booking or distribution channels.
(c) You acknowledge that OFL will determine the total price of any Package Booking at its sole discretion.
4.4 Guest Experience
(a) You acknowledge that You will not treat any guest that books a Property through OFL differently than You treat any other guest that books a room through Your own or any third-party booking or distribution channels. Including, without limitations, with respect to the handling of overbooking situations, the allocation of room types (Including, bedding options, size of room, respect to views, etc.), the amenities available with the booked room type, the customer service available with the booked room and the amount and charging of Fees and/or credit or debit card fees or surcharges.
(a) If You are, or reasonably believe that You will be, unable to honor a Booking, You agree that You will immediately:
(i) Notify OFL of such inability.
(ii) Relocate the affected guest to a comparable property with full disclosure to OFL and the Guest.
(iii) Or refund in full the amount paid for the reservation by the guest.
(b)The owner must ensure the availability calendar is kept up to date, any double booking or booking errors made at no fault of the Guest is the responsibility of the property Owner.
(a) The Owner will agree and pay OFL a commission of 10 percent for confirmed bookings.
(b) OFL is responsible for collecting all Guest Payments for bookings they secure for the property (unless the Owner wishes to collect the rest of the payment on the arrival of the Guest). Once collected, the commission of OFL should be deducted before transferring the net balance to the Owner.
(c) Invoices will be issued to OFL with the commission deducted. Note that commissions are calculated on the actual nightly amount paid by the guest before any tax and service charges (where applicable).
(d) The following examples demonstrate the correct calculation:
(i) No additional tax and service charge: Room charge of $1,000: commission payable $100.00 ($1,000 x 10%). The amount payable OFL to the Owner is $900.00 ($1000-$100)
(ii) Additional tax and service charge: Room charge of $1,000.00. Additional tax and service charge of 15.5% (equals $155). Commission payable on room charge excluding tax and service – $100.00 ($1,000.00 x 10%). The amount payable by OFL to Owner is $1055 ($1000-$100+$155=$1055)
The Owner agrees to:
(a) To inspect the Property;
(b) To arrange for the Property to be professionally cleaned before use by the Guest and to supervise all such works;
(c) To arrange for any safety inspection required by law to be carried out and satisfied before the Property is used by the Guest.
5. TERM AND TERMINATION
5.1 Termination due to a breach of a term
(a) If an Owner breaches any term of this agreement, OFL may give notice requiring that the Owner rectify the breach. If the notified Owner fails to rectify the breach to the satisfaction of OFL within 14 days of the notice, OFL may terminate this agreement by notice in writing;
(b) OFL may terminate this agreement at any time without notice if the Owner engages in a serious or material breach of this agreement;
(c) OFL may terminate this agreement at any time by notice in writing to the Owner if the Owner or any of the Designated Persons:
(i) is guilty of any dishonesty, serious misconduct or serious neglect of duty in connection with the provision of the Services; or
(ii) engages in any act or omission that in the reasonable opinion of OFL has or will likely have the effect of causing damage to the OFL or the OFL’s reputation; or
(iii) An Owner’s Listing or rental price is unacceptable or unfair; or
(iv) An Owner uses a false identity or any other misleading or deceptive conduct.
(d) OFL and the Owner may terminate this contract in writing at any time and the termination is to be effective after 14 days of the notification.
(a) This Agreement will commence on the date the party signs this Agreement and continue until terminated in accordance with this clause 5.
(b) Upon termination by either party OFL undertakes to immediately destroy and remove from all advertising, marketing materials (physical or online) websites or other online presence any of the following provided to it by the Owner:
(i) Marketing materials;
(ii) Confidential information;
(iii) Any promotional or marketing materials referring to the Owner and/or any of the Properties it represents;
(iv) Any other documents and/or online presence referring to the Owner and/or Properties it represents.
(c) The ending of this agreement is without prejudice to any rights which have already accrued to either of the Parties under this agreement.
6. LIMITATION OF LIABILITY AND INDEMNITY
(a) Each of the Parties acknowledge that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement, and any conditions, warranties or other terms implied by Australian statute or common law are excluded from this agreement to the fullest extent permitted by law.
(b) The Owner undertakes to indemnify OFL from and against all damages, liabilities, claims, actions, demands, costs, charges, and expenses which OFL may incur by reason of the Owner, Guest or anyone in connection with those parties, being:
(iI) False or Misleading;
(iii) A breach of the Competition and Consumer Act 2010 (Cth) and/or any other applicable law;
(iv) Any personal injury or economic loss to the Owner or the Guest;
(v) A breach of any third-party intellectual property rights;
(vi) A breach of any other third party contractual or proprietary right; or
(vii) A breach of any other law relating to the substance, nature or operation of this agreement.
(vii) A breach of any/all obligations, standards and precedents set by International Laws and the Laws set by the country of origin to which the property is situated.
(c) OFL shall not be liable in any way for any booking which results in the breakdown of housing equipment, apparatus or machinery, failure of electric or other power, property damage, fire, order of court, failure to appear on the part of any Guest, prohibition or intervention by any government or other competent authority or any other cause beyond the control of OFL.
(d) The Owner will at all times indemnify and keep indemnified OFL, its Representatives and any related parties of the OFL against any and all claims, liabilities, damages, losses, costs and expenses (including legal costs and expenses) arising out of or relating to any breach or alleged breach of any term, condition or warranty by the Owner or the Guest.
7. RESTRAINT AND CONTACT WITH CLIENTS
(a) The Owner agrees and guarantees that it will not approach the OFL Guest with an offer of equivalent or favourable rates as a means to solicit the Guest to stay in the Owner’s Property without the use of OFL services during the period commencing on the execution date of this Agreement and ending six months after the termination of the Agreement.
8. CONFIDENTIAL INFORMATION
(a) Subject to Clause 8 each party undertakes to the other to maintain in confidence the terms of this Agreement and all confidential business information relating to the business of the other party which may be disclosed in connection with this Agreement, and to take all reasonable precautions to ensure that its officers, employees, agents, contractors, solicitors and other advisers maintain such confidentiality.
(b) A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
(c) Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.
(d) Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of the OFL’s request or on termination of this Agreement for any reason.
(e) The obligations under this clause 9 survive termination of any contract formed pursuant to this Agreement.
(a) Each party will keep the Confidential Information confidential and will not disclose it to any third party or use it otherwise than:
(i) For the purposes of this agreement;
(ii) As authorised in writing by the other party;
(iii) As required by any law, judicial body or governmental agency; or
(iv) By way of disclosure to that party’s professional advisers who have agreed to keep the Confidential Information confidential.
(a) This agreement is governed by the laws in force in Australia, and you submit to the exclusive jurisdiction of the courts in New South Wales.
10. DISPUTE RESOLUTION
(a) If a dispute arises, a party may give the other party a notice specifying the dispute. Within 7 business days, after the notice is given, each party must nominate a representative to settle the dispute on its behalf in writing.
(b) Within 14 business days, after the notice is given, the parties must confer to resolve the dispute or decide the method of resolving the dispute. Each party must use its best efforts to resolve the dispute.
(c) Unless the parties otherwise agree, the dispute must be referred to mediation if not resolved within 14 business days after the notice is given.
(d) Unless otherwise agreed by the parties in writing, the mediator’s decision is not binding. The role of the mediator is to assist in negotiating the resolution of the dispute.
(e) The dispute resolution process does not affect any party’s obligations under this agreement.
(f) Neither party may commence court proceedings in any jurisdiction until the mediation is sought first. This does not affect either party’s right to seek urgent injunctive or declaratory relief.
(g) Each party is to pay its own costs of the dispute resolution process.
(a) This agreement may be delivered electronically, including by email or fax.