1. Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires:
Account means an account on any Stripe Services platform that is opened by SiteMinder on behalf of the Customer.
Administrator means the person who accesses the Services and the Account on behalf of the Customer.
Agreement means the agreement constituted between SiteMinder and the Customer comprising these Terms and
Business Day means a day that is not a Saturday, Sunday or public holiday in the place in which an obligation is to be performed or a notice is to be received.
Chargebacks means any chargebacks, refunds, rebates, reversals and associated charges, fees, fines and penalties that are incurred by or imposed on the Customer, a Guest or SiteMinder as a result of any Transaction or other use of the Services or any Stripe Services or other activity through the Customer’s Account, including any failure to pay an amount due on presentment of any card.
Commencement Date means the earlier of:
- the date the Customer completes and submits a Registration Form and accepts these Terms and Conditions and the terms and conditions of any Stripe Services Agreement;
- the Customer’s first use of the Services.
Confidential Information of a party means any information marked as confidential or which by its nature the other party knows or ought to know is confidential (regardless of the form of the information and when it was acquired) and includes trade secrets, technical knowledge, concepts, designs, plans, precedents, processes, methods, techniques, knowhow, innovations, ideas, procedures, research data, financial data, databases, personnel data, computer software and programs, customer and supplier information, correspondence and letters and papers of every description including all copies or extracts of same relating to the affairs or business of the party. However, Confidential Information does not include any such information to the extent that the information is in the public domain other than through a party’s breach of this Agreement or to the extent that the information was already in the possession of the recipient other than as a result of a breach of confidence.
Control in relation to a party has the meaning given in section 50AA of the Corporations Act.
Consequential Loss means:
- loss of revenue, loss of profits, loss of anticipated profits or loss of (or failure to achieve) anticipated savings;
- loss of actual or potential opportunities or loss of contracts;
- loss of or damage to goodwill or reputation;
- loss arising from damage to credit rating or increased financing costs;
- loss arising from loss of Data, unauthorised access to Data, or corruption of Data;
- loss arising from business interruption or loss or damage resulting from wasted management time; or
- any indirect, special, economic, incidental or consequential loss or damage, howsoever arising, whether based in contract (including under any indemnity), in tort (including negligence), in equity, under the provisions of any law or otherwise.
Corporations Act means the Corporations Act 2001 (Cth), Australia.
Customer means the person, entity or organisation listed on the applicable Registration Form.
Customer Software Application means any software used by the Customer to manage bookings, including any property management system or central reservation system, but excluding the Services.
Customer Users mean officers, employees, agents, contractors or representatives of the Customer.
Data means any data, content or information that is collected, used, managed, shared, disclosed or stored in connection with the Services or any Transaction, including any Personal Information and any information that is collected directly by SiteMinder, Stripe or a Payments Services Provider.
Data Protection Requirements means any applicable code, legislation, regulation, statute or order which may apply from time to time relating to the collection, storage and use of Personal Information including the Australian Privacy Act 1988 (Cth), the Australian Privacy Principles, the EU General Data Protection Regulation and comparable laws, regulations and binding guidance and codes of practice issued by the Privacy Commissioner or Privacy Ombudsman, as the case may be in the applicable jurisdiction.
Fault means any fault which renders the Services inoperable or which materially adversely affects the operation of the Services.
Fees means the fees payable by the Customer to SiteMinder for the Services provided under this Agreement, as specified in the Customer’s Registration Form or as otherwise notified to the Customer by SiteMinder from time to time, including Chargebacks.
Force Majeure Event means any act, event or cause which prevents a party from performing, or delays the performance of, any of its obligations under this Agreement, to the extent that the act, event or cause is beyond the reasonable control of the affected party, including:
- forces of nature, any act of God, fire, storm or explosion;
- any strike, lockout, industrial action, war, sabotage, riot, act of terrorism, any denial of service attack, insurrection, civil commotion, national emergency (whether in fact or in law), power shortage, epidemic, quarantine, radiation or radioactive contamination;
- any action or inaction by any organ of government or Government Agency;
- a change in any law including any new law;
- a breakdown of plant, machinery or equipment, telecommunications failure or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material (including short supply from the regular source or supplier); or
- a Supplier Failure.
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute.
GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any comparable value added or similar tax on sales or supplies in any applicable jurisdiction.
Guest means any of the Customer’s customers whose payments are processed using the Services or the Stripe Services.
Guest Details means all Data about the Guests in the Customer’s possession or control.
Insolvency Event means in relation to a party:
- a receiver, receiver and manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official is appointed over any of the assets or undertaking of the party;
- the party suspends payment of its debts generally;
- the party is or becomes unable to pay its debts when they are due;
- the party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
- the party ceases to carry on business or threatens to cease to carry on business;
- a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator;
- an application or order is made for the winding up or dissolution of the other party, or a resolution is passed, or any steps are taken to pass a resolution, for the winding up or dissolution of the other party, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of the first party; or
- a party is presumed to be insolvent within the meaning of any applicable statute or regulation, or threatens to do any of (a) – (g);
- any similar or corresponding application or process is made, planned or threatened in any other jurisdiction in which the Services are provided or the Customer is located.
Intellectual Property Rights means all intellectual property rights, including the following rights:
- patents, copyright, rights in circuit layouts, registered and unregistered designs, trade marks, domain names, business names and any right to have confidential information kept confidential; and
- any application or right to apply for registration of any of the rights referred to in paragraph (a).
Interest Rate means 5% above the base cash rate of the Reserve Bank of Australia from time to time.
Payment Services Provider means any bank, payment network or other financial institution that is involved in the provision of the Services or Stripe Services.
PCI DSS means the Payment Card Industry Data Security Standard issued by the Payment Card Industry Security Council from time to time and available at: https://www.pcisecuritystandards.org/document_library?document=pci_dss
Personal Information has the meaning given in the Privacy Act 1988 (Cth) as amended from time to time.
Registration Form means the registration form in SiteMinder’s standard format, whether in digital or hard copy form, through which the Customer registers to receive the Services and which details the Fees to be paid by the Customer.
Related Bodies Corporate has the meaning given to that expression in the Corporations Act.
Services means the payment processing services provided by SiteMinder under this Agreement, including enabling Customers to accept credit and debit card payments and process Chargebacks to and from Guests.
SiteMinder means SiteMinder Pay Pty Ltd, incorporated in Australian (ACN 626 549 282), of 88 Cumberland Street, The Rocks, NSW 2000, Australia.
Stripe means Stripe Payments Australia Pty Ltd A.C.N. 160 180 343
Stripe Services means any services provided by Stripe under the Stripe Services Agreement.
Stripe Services Agreement means the Stripe Connect Account Agreement (found at https://stripe.com/au/connect-account/legal) and the Stripe Services Agreement – Australia (found at https://stripe.com/au/legal).
Supplier Failure means a failure of any equipment, product or service supplied to SiteMinder by a third party including Stripe, which is required by SiteMinder to perform its obligations under this Agreement.
Term means the term of this Agreement which commences on the Commencement Date and continues until terminated in accordance with this Agreement.
Terms and Conditions means these terms and conditions.
Transaction means any purchase, sale, order, donation, or other payment transaction by or on behalf of the Customer or a Guest, including any activities processed using the Services or Stripe Services through the Customer’s Account.
Website means https://siteminder.com/legal.
Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise:
- the singular includes the plural and conversely;
- a gender includes all genders;
- a reference to a person includes a body corporate, an unincorporated body, enterprise, firm, trust, joint venture, syndicate or other entity and conversely;
- a reference to a clause or schedule is to a clause of or schedule to this Agreement;
- “includes” or “including” or words of similar effect are not words of limitation;
- a reference to a thing, a service or a right includes a reference to a part of the thing, service or right;
- a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
- a reference to any legislation or to any provision of any legislation includes any amendment, consolidation or replacement of it, and all regulations and statutory instruments issued under it;
- a reference to conduct includes any omission, statement or undertaking, whether or not in writing;
- a reference to a party is a party to this Agreement or any person who executes a deed of accession to this Agreement;
- terms defined in the Corporations Act have the same meaning in this Agreement, unless the context expresses otherwise;
- If any payment by a party under this Agreement is due on a day which is not a Business Day, the due date will be the next Business Day in the same calendar month or, if none, the preceding Business Day; and
- if an obligation must be performed by 2 or more persons it binds them jointly and individually.
2. Term and Termination
This Agreement commences on the Commencement Date and continues for the Term.
3. Supply of Services
3.1. Grant of licence
- Subject to clause (b), SiteMinder grants the Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable, royalty-free licence to use the Services and any other of SiteMinder’s Intellectual Property Rights provided pursuant to this Agreement that are necessary to use the Services for the Term.
- This Agreement and the ongoing provision of Services is conditional on the Customer entering into and maintaining in force the Stripe Services Agreement. By signing this Agreement, the Customer acknowledges and agrees that it has read and agrees to be bound by the terms of the Stripe Services Agreement as modified by Stripe from time to time, which terms are incorporated by reference into this Agreement. If there is any inconsistency between this Agreement and the Stripe Services Agreement, this Agreement takes precedence.
3.2. Additional Conditions
- If the Stripe Services Agreement is terminated for any reason, SiteMinder may terminate the Services and this Agreement without notice.
- The Customer must provide any information requested from time to time by SiteMinder, Stripe or a Payment Services Provider necessary to comply with any regulatory requirements or KYC obligations.
- The Services are available for properties located in Australia and New Zealand only. If the Customer wishes to use the Services in countries or regions other than Australia or New Zealand and SiteMinder offers the Services in the applicable country or region, the Customer must enter into a separate agreement with SiteMinder.
3.3. Opening Account
- authorises SiteMinder to open an Account for the Customer;
- authorises SiteMinder to contact any third party as necessary in order to verify or collect any information required by SiteMinder, Stripe or a Payment Services Provider in order to open an Account;
- must ensure that all information provided by the Customer to SiteMinder is accurate and complete;
- must promptly notify SiteMinder if there are any changes to the information that the Customer has provided pursuant to this clause 3.3 and will promptly provide updated information to SiteMinder;
- acknowledges that:
- until SiteMinder opens an Account for the Customer, the Customer will not be able to use the Services;
- SiteMinder may alter the acceptance process for opening an Account as a result of any requirements imposed by Stripe, and the Customer agrees that it will comply with any additional requirements or SiteMinder may close the Customer’s Account and immediately terminate this Agreement; and
- SiteMinder may not be able to open an Account for the Customer and, if so, this Agreement and the rights granted to the Customer under this Agreement will immediately terminate.
- authorises SiteMinder to:
- access its Account and any Data made available through the Account;
- share any Data with Stripe or a Payment Services Provider in order for SiteMinder to open and maintain the Customer’s Account and for the Customer to use the Services;
- integrate the Customer’s Account with SiteMinder’s platform in connection with any Services. If the Customer ends this authorisation or otherwise prevents the integration between the Customer’s Account with SiteMinder’s platform in connection with any Stripe Services, SiteMinder may immediately terminate this Agreement;
- administer the Customer’s Account and initiate, undertake, create and manage any Transactions that the Customer has indicated should be undertaken through the Account, including debiting any Chargebacks;
- deduct any amounts owed to SiteMinder from the Account or from funds payable to the Customer from any Transactions or Chargebacks processed using the Services or through the Customer’s Account;
- acknowledges that:
- SiteMinder will have access to the Customer’s Account, will be responsible for administering the Account and will be authorised to perform any applicable actions identified in a Stripe Services Agreement, including initiating any Transaction, unless the Customer by written notice withdraws the authorisation for SiteMinder to access the Customer’s Account, in which case SiteMinder may immediately terminate this Agreement;
- the Account and any Transactions will be governed by the rules and procedures set out in these Terms and Conditions; and
- the Customer is solely responsible for all Transactions authorised through the Customer’s Account, whether initiated by or on behalf of the Customer or by or on behalf of SiteMinder.
3.5. Use of the Services
The Services are provided subject to the following obligations:
- the Services are for the Customer’s sole and exclusive use and may only be used as permitted under this Agreement;
- the Services must not be used to provide, in whole or in part, any service or functionality which competes with SiteMinder’s Services or business;
- the Customer must not, and must not allow any person to, republish, post, transmit, upload, resell or distribute, reproduce or copy the Services, any Stripe Services, any Data or any documentation related to the foregoing in whole or in part, except for backup and archive purposes and in accordance with applicable law;
- the Customer must use the Services in compliance with all applicable laws;
- the Customer must not act as a pass-through agent for the Services without adding any additional value to relevant Guests;
- the Customer must not attempt to circumvent any of the technical limitations of the Services or enable any functionality that is disabled or prohibited in the Services;
- the Customer must not transfer any of the rights granted by this Agreement;
- the Customer must not interfere with the ordinary operation of the Services;
- the Customer must not impose an unreasonable or disproportionately large load on the Services;
- the Customer must not import or export (or attempt to import or export) any of SiteMinder’s Intellectual Property Rights to a person or a country in violation of any applicable law;
- the Customer must not use the Services for any purpose other than the purpose for which it is supplied under this Agreement, including
- for any improper or unlawful purpose or any use that is prohibited by this Agreement or a Stripe Services Agreement, including for the benefit of any entity, person, country or organisation that is embargoed or blocked by any Government Agency;
- to create for the purpose of, or in a manner that transmits, publishes or communicates material which is defamatory, offensive, abusive, indecent, discriminatory, menacing, unwanted, in breach of confidence, unlawful or which brings SiteMinder, Stripe or any of SiteMinder’s agents into disrepute;
- in any way which adversely affects or interferes with the supply of the Service to other SiteMinder customers;
- to facilitate unlawful Transactions or permit others to use the Services for non-commercial, personal or household purposes;
- to host or transmit information which contains computer viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or equipment; or
- for any benchmarking or competitive purpose or to develop a similar or competitive product.
- The Customer may only submit Transactions that are authorised by Guests.
- The Customer is responsible for:
- acquiring any consents and information from Guests necessary to process Transactions;
- providing Guests with confirmations, receipts or tax invoices for any sales of goods or services as required;
- verifying the identifies of any Guests for which Transactions are processed;
- determining the eligibility for each Guest to have any Transactions processed through the Services;
- processing of Chargebacks relating to Transactions; and
- any losses attributed to any fraudulent Transactions, including any Transactions incurred in connection with lost or stolen credentials or log-ins.
- To enable SiteMinder to provide the Services to the Customer, the Customer appoints SiteMinder as the Customer’s agent to receive and pay funds in connection with the Services.
- SiteMinder is not responsible or liable for any Transaction that is submitted by the Customer or using the Customer’s login details, even if the Transaction is submitted without authorisation, is submitted in error, is fraudulent, is later the subject of a Chargeback or violates any applicable law.
- SiteMinder may refuse or suspend any Transaction that it reasonably believes violates these Terms and Conditions or that may expose SiteMinder to an unusual or unacceptable risk.
- The Customer may challenge a Chargeback by submitting appropriate evidence to SiteMinder. In those circumstances, SiteMinder will assist the Customer by coordinating with any Stripe or Payment Services Provider to contest the Charge, but SiteMinder is not involved in determining the final outcome of the request and cannot guarantee the request will be successful.
- SiteMinder or Stripe may share any information related to any fraudulent, unauthorised or illegal Transactions with any Payment Services Providers or Government Agencies in accordance with applicable law, including any information about the Customer, the applicable Transactions, the Account, and other relevant information.
3.7. Service warranties
SiteMinder represents and warrants that it holds and has complied with all permits, licenses and other governmental authorisations necessary for conducting, carrying out and continuing its operations and business and it owns, controls or has obtained any and all necessary rights, licenses, permits and clearances required to provide the Services.
- The Customer is responsible for the security of any Data on its systems or in its possession and for implementing appropriate security processes, systems and procedures to protect itself from the download of any malware, virus, worms, Trojan horses or other code that has contaminating or destructive qualities.
- The Customer is responsible for reviewing and determining whether to implement any security controls or procedures that are provided by SiteMinder or Stripe. SiteMinder does not guarantee or warrant that any file the Customer downloads from SiteMinder or Stripe or which SiteMinder or Stripe delivers will be free of malware, virus, worms, Trojan horses or other code that has contaminating or destructive qualities.
- The Customer acknowledges that the security controls or procedures provided by SiteMinder may not be sufficient or appropriate for the Customer’s business for any number of reasons and, accordingly, the Customer is responsible to implement whatever additional controls and procedures it deems necessary to meet its requirements.
- SiteMinder may take any measures it deems necessary, including the suspension of the Customer’s Account, to maintain the security of the Services and the Data, or to prevent harm to SiteMinder, SiteMinder’s other customers, Stripe or any other person or organisation.
- To the extent permitted by applicable law, the Customer waives and forfeits any rights it may have to make a claim against SiteMinder for any damages or losses incurred as a result of SiteMinder’s acts or omissions with respect to the security of the Services or the Data.
3.9. PCI DSS compliance
SiteMinder warrants that it is PCI DSS compliant and must remain compliant for the duration of this Agreement. SiteMinder must store, process and transmit all cardholder Data in accordance with the PCI DSS.
3.10. No reverse engineering
The Customer must not, and must ensure that any Customer User, Guest or other third party to whom access has been granted by the Customer does not, modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Services or any Stripe Services. This obligation does not apply to the extent that the relevant acts are permitted by non-excludable laws.
3.11. Suspension or termination for breach
SiteMinder may immediately suspend or terminate the Customer’s access to the Services (or any part of the Services) or to the Account in the event:
- the Customer breaches, or SiteMinder reasonably suspects that the Customer has breached this Agreement;
- SiteMinder or Stripe determines that the Customer is not eligible to use the Services or the Stripe Services for any reason; or
- an applicable law requires the suspension or termination of the Customer’s access to the Account or the Services.
- If SiteMinder suspends or terminates the Customer’s access to the Services pursuant to this clause 3.11, SiteMinder will provide notice of the suspension or termination within 5 Business Days along with the rationale for the suspension or termination.
4. Fees and Payment
4.1. Fees and other payment obligations
- The Customer must pay the Fees in accordance with this Agreement.
- Fees are payable on each Transaction. Siteminder may deduct Fees due by the Customer under this Agreement:
- from any amounts debited in respect of the Transaction from Guests prior to payment of Transaction funds to the Customer; or
- from the Customer’s Account;
- The Customer must also pay to SiteMinder:
- any Chargebacks imposed on the Customer or its Account by Stripe or any Payment Services Provider;
- any taxes, fees or other amounts imposed by a Government Agency; and
- any other amounts imposed on SiteMinder by Stripe in connection with any Transaction or the Customer’s use of the Services.
- SiteMinder may adjust the Fees at any time by giving 30 days’ notice in writing to the Customer.
4.2. Monthly statements and payment
SiteMinder will make any credits and deduct any debits, including in respect of any Fees and Chargebacks, from the Customer’s Account at any time in accordance with this Agreement. If there are insufficient funds in the Customer’s Account to cover any debit, SiteMinder will deduct such amounts from the bank account that the Customer has linked to its Account in accordance with the direct debit request services agreement set out in clause 4.7. SiteMinder will provide the Customer with a monthly statement which shows the debits and credits that are made to the Customer’s Account and linked bank account under this Agreement in respect of Services provided in the previous month.
4.3. Disputed invoices
- If the Customer disputes any part of the statement provided by SiteMinder, the Customer must notify SiteMinder in writing within 30 days of receipt of the statement of the reasons for disputing the statement. If the Customer does not notify SiteMinder within 30 days of receipt of the invoice the Customer will be deemed to have accepted the statement as accurate.
- The parties must endeavour to resolve the disputed amount between themselves within 10 Business Days of the notification being given by the Customer. If the parties do not resolve the dispute within 10 days of notification in writing by the Customer, the dispute resolution procedure set out in clause 16 applies.
- Siteminder will credit the Customer’s Account for any part of an invoice that the parties agree, or which is determined under clause 16, has been rendered in error.
4.4. Suspension for non-payment
SiteMinder may suspend the Customer’s Account without notice to the Customer if the Customer fails to make a payment as required under this Agreement on the due date for payment.
- All prices quoted for supplies made and/or to be made under this Agreement are exclusive of GST, unless expressed to the contrary in writing.
- If GST is applicable to any supply made by SiteMinder under this Agreement, SiteMinder may add to the amount otherwise payable an additional amount for the applicable GST.
- The Customer agrees to pay SiteMinder such GST charge in the same manner and at the same time as the payment for the relevant supply.
- SiteMinder will issue tax invoices to the Customer for the purposes of GST in respect of the Fees and other amounts payable by the Customer to SiteMinder.
- If required by applicable law, SiteMinder will give the Customer an adjustment note arising from the adjustment event relating to a taxable supply made under, or in connection with this Agreement within 30 days after the date SiteMinder becomes aware of the adjustment event.
4.6. Set-Off rights
If the Customer fails to make any payments that are due and payable under this Agreement, SiteMinder may collect or set-off any amounts that are due and unpaid from any future funds paid, or funds in the Customer’s Account or held by SiteMinder for payment to the Customer in connection with the Services.
4.7. Direct debit request service agreement
- If the net activity or balance in the Customer’s Account at any time is negative, or SiteMinder requires that the Customer fund its Account for any other reason relating to this Agreement, the Customer authorises SiteMinder to debit the bank account that the Customer has linked to its Account by using the Bulk Electronic Clearing System (BECS).
- The Customer must ensure that its linked bank account:
- is capable of accepting debit and credit transfers through BECS;
- has sufficient funds to allow for a debit transaction;
- In addition to any Fees, if SiteMinder incurs any fees as a result of debiting the Customer’s linked bank account in accordance with this clause 4.7 (such as a fee for insufficient funds), SiteMinder may charge the Customer for, and the Customer will be responsible to pay, those fees.
- If any debit transaction processed by SiteMinder in accordance with this clause 4.7 is returned as a result of insufficient funds, the Customer must on demand fund its linked bank account in an amount so that SiteMinder can re-process the debit transaction.
- If the Customer believes that there has been an error relating to a debit transaction from its linked bank account, the Customer should notify SiteMinder and its bank as soon as possible. SiteMinder will coordinate with the bank to adjust the Customer’s linked bank account in the event of an error. If an error is not found, SiteMinder will notify the Customer of the determination and the rationale for the determination.
- SiteMinder will provide at least 14 days’ notice prior to making any changes to this direct debit request service agreement. If the Customer would like to make an amendment relating to this direct debit request service agreement, the Customer should contact SiteMinder. In respect of a change that may affect SiteMinder’s rights under this Agreement, the change will not take effect without SiteMinder’s prior approval, which will not be unreasonably withheld.
- Any requests relating to stopping, cancelling or deferring a debit transaction through the Customer’s linked account should be made through the bank where the Customer’s linked account is held.
5. Customer’s Obligations, Responsibilities and Warranties
5.1. Use of the Services
The Customer must:
- obtain and maintain the necessary information and communications technology systems and services to enable the Customer to access and use the Services and to perform its obligations under this Agreement;
- accurately advise Guests of the terms and conditions relating to any Transaction, including any fees or charges associated with the Transaction;
- provide Guests with accurate and detailed receipts that describe each Transaction;
- provide Guests with a method by which to contact the Customer in the event of any problems with any goods or services sold in connection with any Transaction;
- not use the Services to sell goods or services in an unfair, misleading, deceptive or unlawful manner or in a manner that exposes Guests to unreasonable risks;
- provide all consumer disclosures required by applicable laws;
- maintain a fair return, refund, cancellation or adjustment policy and clearly describe the process by which a Guest can take advantage of the policy;
- comply with any operational procedures and maintain any technical specifications specified on the Website or in any documentation provided by SiteMinder, or other reasonable directions given by SiteMinder from time to time in relation to the Services;
- comply with all of its obligations in any Stripe Services Agreement. However, if the Customer does not comply with any of its obligations in any Stripe Services Agreement, the Customer:
- authorises SiteMinder to fulfill those obligations on behalf of the Customer;
- will provide any necessary assistance, cooperation or information that is requested by SiteMinder in order for SiteMinder to fulfill those obligations; and
- will indemnify SiteMinder for any and all costs, expenses, losses or other liabilities that are incurred by SiteMinder in connection with SiteMinder fulfilling those obligations;
- comply with any applicable law and the requirements or directions of Government Agencies;
- provide SiteMinder with all information, assistance and co-operation reasonably requested by SiteMinder in order to enable SiteMinder to meet its obligations under this Agreement;
- not do, or omit to do, anything which the Customer is aware or ought reasonably to be aware, could have an adverse effect on the operation or maintenance of the Services;
- comply with any applicable rules or procedures when accepting payment card payments in connection with the Services;
- promptly notify SiteMinder in the event that a Stripe Services Agreement is terminated by either the Customer or Stripe for any reason;
- provide SiteMinder and its contractors, agents and employees with prompt access to the Customer’s personnel, equipment, data and information as is reasonably required to enable SiteMinder to provide the Services; and
- notify SiteMinder if the Customer suffers an Insolvency Event.
5.2. Customer responsibilities
The Customer is solely responsible for:
goods or services provided to Guests in connection with the Services and for any corresponding obligations to the Guests, including the nature and quality of the goods and services and any necessary delivery, support, return or other ancillary services provided to any Guests.
all Fees, all Transactions regardless of how the Transaction was initiated, and all Chargebacks that are incurred in connection with the Services or any Stripe Services or through the Customer’s Account.
determining the authenticity and accuracy of any Transactions that are processed using the Services or through the Customer’s Account.
losses or damages incurred as a result of fraudulent or inaccurate Transactions.
5.3. Customer warranties
The Customer warrants that:
- both the Customer and the Customer’s Administrator are authorised to provide the information required by SiteMinder in order to register to access and use the Services on behalf of the Customer and to bind the Customer to this Agreement;
- it has the authority to execute this Agreement and perform its obligations under this Agreement and the Stripe Services Agreement;
- it will not use the Services in connection with household purposes or for peer-to-peer money transmissions or intercompany transactions;
- it will not use the Services for any illegal or fraudulent purposes or in connection with any activities that are prohibited pursuant to this Agreement or the Stripe Services Agreement; and
- it will not interfere in any manner with the operation of the Services or any Stripe Services.
6. Maintenance and Suspension
- SiteMinder may perform scheduled and unscheduled maintenance or perform updates in relation to the Services from time to time.
- SiteMinder will use its reasonable efforts to give the Customer notice prior to undertaking any scheduled maintenance and will use reasonable endeavours to perform all scheduled maintenance at times likely to minimise interference to the Customer. If SiteMinder is required to perform unscheduled or urgent maintenance, then SiteMinder will use reasonable efforts to provide prior notice to the Customer. However, the Customer accepts that such prior notice may not always be possible.
6.2. Suspension by SiteMindere
SiteMinder may, upon reasonable notice, without liability and with immediate effect suspend a Service for as long as SiteMinder, acting reasonably, considers it necessary to comply with any law, protect any person, or equipment, or enable authorised persons to attend to any emergency, or to prevent any flooding of Data or other action of the Customer which is causing the Services to perform at a reduced level.
- The SiteMinder support team will deal directly with the Customer’s support function regarding basic configuration changes for customers and otherwise will provide basic support enquiries during local business hours.
- The SiteMinder support team will coordinate any reported issues from the Customer regarding any Stripe Services with the applicable Stripe Services Provider. However, SiteMinder is not responsible for providing the support or resolving the issue that is reported regarding any Stripe Services, including with respect to any Supplier Failure.
- SiteMinder is not responsible for providing any support to any Guests.
7.2. Customer’s support obligations
- The Customer is solely responsible for the provision of any customer support services to any Guests, including any support with respect to any Transactions, Chargebacks, receipts or other issues related to the Customer’s goods and services.
- The Customer must not permit, authorise or encourage Guests to seek support in respect of the Services from SiteMinder.
8. Fault reporting and restoration
8.1. Fault reporting
- The Customer must report any Faults in relation to the Services to SiteMinder as soon as reasonably practicable after it becomes aware of them. SiteMinder will use its reasonable efforts to rectify a fault within a reasonable time to ensure minimal interruption to the Service.
- Before reporting a Fault, the Customer should take all reasonable steps to ensure that the Fault is with the Service and not caused by any Customer software, content or equipment.
- SiteMinder is not responsible for rectifying Faults where the Faults arises or is caused by the Customer or the Customer’s property management system.
- The Customer is responsible for repairing faults relating to any Customer Software Applications, property management system, content or equipment.
9. Data and Privacy
With respect to any Personal Information that is collected, used, handled, processed and/or transferred under this Agreement, each party must:
- comply with the applicable Data Protection Requirements; and
- obtain all necessary rights and consents required to comply with the applicable Data Protection Requirements and only use or disclose Personal Information obtained during the course of performing this Agreement for the purposes of this Agreement;
- subject to clause 9.3, not process or transfer Personal Information outside the relevant jurisdiction to any third party without the other party’s prior written consent.
9.2. Use and disclosure of Data
- the processing, collection, use, retention, storage, disclosure and handling of Data of the Customer, Customer Users and Guests by SiteMinder, Stripe, any Payment Services Provider or any of their service providers for the purpose of supplying the Services or any Third Party Services to the Customer, including:
- billing and account management;
- product and service development;
- managing the Customer’s relationship with SiteMinder; or
- marketing SiteMinder’s Services to the Customer.
- the sharing of Data of the Customer, Customer Users and Guests by SiteMinder with:
- a Government Agency to assist in the investigation of crime or the enforcement of any laws;
- any third party as required by law;
- Stripe, Payment Services Providers or other suppliers of SiteMinder required for the purposes of providing the Services.
- The Customer must obtain any consents or permissions necessary to enable the processing of Data (including Guest Data) in accordance with this Agreement.
- The Customer is responsible for disclosing to any Guests that SiteMinder may be processing Transactions on behalf of the Customer and may receive Data from the Customer. The Customer is responsible for giving any privacy notices to the Guests and obtaining any consent from the Guests in respect of the processing of Data (including Personal Information comprised in the Data) in accordance with this Agreement.
- SiteMinder may delete or disconnect from the Customer’s Account any Personal Information or other Data regarding any Guest when requested to do so by the Guest.
- SiteMinder will not use any Data to market to any Guest unless it has received explicit consent from the Guest to do so.
- The Customer may not disclose any Data related to a Transaction to any other party, except in connection with processing the Transaction as part of the Services as requested and authorised by the applicable Guest and consistent with applicable law, rules and regulations.
- The Customer must comply with all applicable laws when processing Data and provide evidence of compliance on request.
- The Customer waives its right to bring any claims in connection with any use of, or actions relating to, any Data by SiteMinder in connection with the Services, and the Customer will reimburse SiteMinder for any and all costs, expenses and losses that are incurred by SiteMinder as a result of the use of any Data by the Customer.
9.3. Overseas disclosures of Personal Information
SiteMinder may disclose Data collected under this Agreement to its affiliates or third parties located in jurisdictions where the laws with respect to the handling of Personal Information are not as stringent or protective as in Australia. The Customer consents to the disclosure of any Personal Information shared in connection with this Agreement to recipients overseas and agrees that Australian Privacy Principle 8.1 (as set out in Schedule 1 or the Privacy Act 1988 (Cth)) will not apply to this disclosure.
10.1. Confidentiality obligations
Each party (Recipient) which receives Confidential Information of the other party (Disclosing Party) under this Agreement acknowledges that all Confidential Information provided to it or to which it is exposed is confidential to the Disclosing Party.
10.2. Loss suffered
The Recipient acknowledges and agrees that the Confidential Information is, by virtue of its special nature, valuable property of the Disclosing Party and that the Disclosing Party may suffer damage or loss by any disclosure by the Recipient of the Confidential Information.
The Recipient must:
- treat all Confidential Information as confidential and not make public or disclose to any other person that Confidential Information unless it has first obtained the written consent of Disclosing Party to do so;
- prevent third parties from gaining access to the Confidential Information; and
- deliver and surrender to Disclosing Party upon request all records of Confidential Information held by it.
10.4. Disclosure required
The Recipient may disclose Confidential Information if required to do so by a Government Agency or any law or court order, or the rules of any applicable securities exchange after first giving notice to Disclosing Party and after taking all practicable steps to cooperate with Disclosing Party to prevent the disclosure to the maximum extent permitted by law.
10.5. Permitted disclosure
- Each party may disclose Confidential Information to any of its employees, contractors, or advisers on a need to know basis as long as each such recipient is bound by an obligation of confidence substantially the same as contained in this Agreement.
- SiteMinder may disclose Confidential Information to Stripe or any Payment Services Provider to the extent required for the provision of the Services and for exercising SiteMinder’s rights and complying with SiteMinder’s obligations under this Agreement.
11. Intellectual Property Rights
11.1. Ownership of Intellectual Property Rights
- All Intellectual Property Rights which are owned by either party as at the date of this Agreement will at all times remain owned by that party exclusively and nothing in this Agreement may be construed as transferring outright the ownership of the Intellectual Property Rights of one party to another.
- Except as expressly provided, nothing in this Agreement confers on the Customer any right, title or interest in, or licence to use, SiteMinder’s Intellectual Property Rights.
11.2. Customer undertakings
The Customer acknowledges and agrees:
- the Services are Confidential Information of SiteMinder and the Customer must not use or disclose any Confidential Information without SiteMinder’s prior written consent;
- it will not attempt to assign, transfer, lease or rent the Services to any third party;
- it will not attempt to modify or create any derivative work of the Services;
- it will not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Services;
- it will not reverse assemble, disassemble, reverse engineer or otherwise attempt to derive source code, the underlying ideas, algorithms, structure or organisation of the Services; and
- it will indemnify and hold SiteMinder harmless from all claims of whatever nature and howsoever arising made by any third party arising from any improper, unlawful or unauthorised use or dealing by the Customer or the Guests with the Services.
12.1. Term and termination
This Agreement remains in force until terminated in accordance with this clause 12.
Either party may terminate this Agreement:
- if the other party has committed a material breach of this Agreement and either:
- the breach is not remedied within 14 days of the date written notice of the breach is served on the breaching party; or
- the breach is not capable of remedy.
For the purposes of this clause 12.2(a) a failure to pay any amount on the due date for payment is a material breach;
- if the other party suffers an Insolvency Event;
- in accordance with clause 13.2, if a Force Majeure Event occurs; or
- at any time by giving the other party 30 days’ written notice and, in the case of the Customer, ceasing use of the Services from the date of the written notice, provided that if the Customer recommences the use of the Services at any point, the written notice will be of no effect and the Customer will continue to be bound by this Agreement.
12.3. SiteMinder termination
SiteMinder may terminate this Agreement immediately:
- under clause 3.2(a) if the Stripe Services Agreement is terminated for any reason;
- if SiteMinder cannot open an Account for the Customer for any reason, including under clause 3.3;
- if the Customer ceases to have access to the Customer’s Account for any reason, including if the Customer withdraws its authorisation under clause 3.4, or the Customer’s right use the Account is suspended or terminated for any reason.
12.4. Failure to pay
In addition to the right to terminate this Agreement for breach under clause 12.2(a), if the Customer fails to make a payment due under this Agreement when called upon to do so, SiteMinder may do any one or more of the following either instead of, or in addition to, terminating the Agreement:
- charge the Customer interest on the overdue amount from the due date for payment up to the date of actual payment at the Interest Rate;
- suspend the provision of the Services until all amounts due have been paid (including any interest); or
- use or disclose any Data collected and recorded in relation to the Customer to Stripe as may be necessary to assist SiteMinder in the process of debt recovery.
12.5. Effects on termination
- On termination of this Agreement:
- all unpaid sums owing by each party will immediately become due and payable to the other party;
- in addition to any other rights it may have, SiteMinder may invoice the Customer in respect of any Services provided, any Transactions processed or any Chargebacks incurred prior to the date of termination which have not been invoiced;
- the Customer must complete any pending Transactions;
- the Customer must cease using the Services to accept any new Transactions;
- the Customer must cease using any trade marks, content or logos associated with the Services or SiteMinder;
- SiteMinder will have the right, but not the obligation, to delete any of the Customer’s Data stored on in the Services within 10 days of the date of termination; and
- the Customer must immediately return to SiteMinder all Confidential Information of SiteMinder, all access codes and keys of any type and any other materials in the Customer’s possession relating to the Services.
- SiteMinder will not be liable to the Customer for compensation, reimbursement or damages related to the Customer’s use of the Services, or any termination or suspension of the Services or deletion of the Customer’s Data, that occurs after the termination of this Agreement.
- The Customer remains liable for all Fees, Chargebacks, or other financial obligations that are due to SiteMinder incurred in connection with the Customer’s use of the Services before or after the date of termination.
13. Force Majeure
13.1. No liability
Where any failure or delay by a party (Affected Party) in the performance of its obligations (excluding payment obligations) under this Agreement is caused, directly or indirectly, by a Force Majeure Event:
- the Affected Party must as soon as practicable give the other party written notice of that fact;
- the Affected Party is not liable for that failure or delay; and
- the Affected Party’s obligations under this Agreement are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event.
13.2. Termination for Force Majeure Event
If the Force Majeure Event continues for more than 30 consecutive days, either party may terminate this Agreement by giving written notice to the other at any time during which the Force Majeure Event continues.
14. Limitation of Warranty and Liability
14.1. Warranty limitation
- SiteMinder provides the Services on an “as is” basis and without any warranty, condition or guarantee, whether express, implied or statutory, to the maximum extent permitted by law.
- The Services are provided subject to the nature and limitations of any Stripe Services, including any terms set forth in any Stripe Services Agreement.
- SiteMinder, its Related Bodies Corporate, its licensors and its suppliers, including Stripe, and their respective officers and employees specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement to the maximum extent permitted by law.
- No Data or other information provided by SiteMinder or obtained by the Customer or any Guests through the Services creates or implies any warranty from SiteMinder to the Customer or any Guests.
- SiteMinder does not guarantee continuous, uninterrupted access to the Services.
- SiteMinder provides no warranties or guarantees with respect to:
- the accuracy and completeness of any Data provided through the Services;
- the Services meeting the Customer’s requirements or expectations;
- the Services operating at any particular speed, complying with any particular standard or operating in any particular manner;
- the Customer achieving any profit or other outcome from its use of the Services;
- the Services being available at all times or at any specific time;
- the Services being provided securely without interruption or error;
- the correction of any defects or errors in the Services or Data; or
- the Services being free from any viruses or other harmful code.
- Use of the Services, any Stripe Services or any Data is solely at the Customer’s own risk, and the Customer is responsible for any damage to its property, loss of data, or any other loss that results from any use of the Services, any Stripe Services or any Data.
- SiteMinder provides no guarantees with respect the time required to process Transactions or to payout any funds in connection with the Services.
14.2. Australian consumer law protections
- To the extent that SiteMinder provides any goods or services to the Customer as a consumer as defined within the Competition and Consumer Act 2010 (Cth), the Customer will be afforded certain rights and remedies (including consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
- To the extent that SiteMinder is permitted to limit its liability pursuant to the Competition and Consumer Act 2010 (Cth), SiteMinder’s liability will be limited to supplying the Services again or payment of the cost of having the Services supplied again.
14.3. Limitation on SiteMinder’s liability
- SiteMinder is not liable for any losses, damages, costs or other liabilities incurred by the Customer in connection or related to:
- any fraudulent Transaction or fraud perpetrated by any third party;
- any unauthorised access or use, hacking or tampering of the Services, any Data or the Customer’s Account.
- the Customer’s use of the Services or Stripe Services in a manner that breaches or is otherwise inconsistent with this Agreement or the Stripe Services Agreement;
- any bugs, Trojans, malware, viruses, or other harmful code that may be transmitted to or through the Services or Stripe Services; or
- any errors or losses in or to any Data provided to or by SiteMinder, Stripe or any Payment Services Provider.
- To the maximum extent permitted by law, the Customer agrees that any claims that it may make under this Agreement will be limited to the Customer’s direct and documented damages.
- To the maximum extent permitted by law, the total aggregate liability of SiteMinder and its Related Bodies Corporate in respect of all claims made under this Agreement (including in respect of any claims in contract, tort or negligence) is limited to 0.1% of the total volume of Transactions processed by SiteMinder during the 12 month period prior to the event giving rise to the liability less any Chargebacks related to those Transactions (Volume).
- To the maximum extent permitted by law, any limitations of liability set out in this Agreement will apply regardless of the theory on which the liability is based, including contract, tort (including negligence), strict liability or any other theory.
14.4. No Consequential Loss
Neither party is liable to the other for any Consequential Loss however caused in connection with or related to this Agreement or otherwise in respect of the Services or the Customer’s use of the Services.
14.5. Exclusions from limitation of liability
The exclusions from liability contained in clause 14.3(b), (c) and (d) and 14.4 do not apply to any breach of clause 10 (Confidentiality).
14.6. No implied terms
All terms, conditions or warranties which may be implied into this Agreement are excluded to the fullest extent permitted by law.
15.1. Customer indemnity
- The Customer indemnifies and will and hold SiteMinder and its Related Bodies Corporate and their respective directors, officers, employees, contractors, agents and service providers harmless from and against all losses, damages, liabilities, claims and expenses incurred (including reasonable legal costs and defence or settlement costs) arising as a result of:
- any claim that the Customer’s good or services were not properly described or delivered to any Guests;
- the Customer’s breach of any provision of this Agreement or the Stripe Services Agreement;
- any Chargebacks incurred in connection with:
- the Customer’s use of the Services; and
- any Transactions initiated or authorised by the Customer or on its behalf by SiteMinder as part of the Services;
- negligent or wilful misconduct of the Customer, its Related Bodies Corporate or their respective directors, officers, employees, contractors, agents and service providers;
- any Data or other materials that the Customer provided to SiteMinder or Stripe or uploaded using the Services infringing any rights of any person, entity or organisation, including any Intellectual Property Rights, proprietary rights or privacy,(each an Indemnity Claim).
The Customer has no liability in respect of an Indemnity Claim under clause 15.1 unless SiteMinder complies with the following conditions:
- as soon as reasonably practicable after becoming aware of a SiteMinder Indemnity Claim and in any event within 5 Business Days, SiteMinder must notify the Customer in writing, providing details of the SiteMinder Indemnity Claim;
- SiteMinder must make no admission of liability;
- SiteMinder must assign absolutely to the Customer the right to defend or compromise any claim, acting in its absolute discretion.
16.1. Dispute resolution prior to litigation
- The parties must exhaust the following provisions before initiating any legal proceedings in court.
- When a dispute arises, the disputing party must give a notice in writing to the other party setting out in reasonable detail the nature of the dispute.
- The parties must use reasonable endeavours and act in good faith to resolve the dispute notified under subclause (a) by negotiation between a senior manager of each of them.
- If senior managers of the parties have not resolved any dispute within 20 Business Days of notification of the dispute, either party may take such additional action as it deems necessary to resolve the dispute, including initiating legal proceedings.
16.2. Interlocutory relief
Nothing in this clause 16 prevents any party from seeking urgent interlocutory relief from a court at any time.
17.1. No assignment
either party may assign, charge or deal with any its rights and obligations under this Agreement or attempt or purport to do so, without the prior written consent of the other party. If the other party consents to any assignment request, the party accepting the assignment agrees to assume all rights and obligations of the party assigning its rights and obligations and agrees to comply with the terms of this Agreement.
17.2. Change in Control
If a change in Control occurs in respect of the Customer or the Customer sells a property which is receiving Services under this Agreement, SiteMinder may terminate the Agreement, or the provision of any Services, at any time without notice. If the Customer wishes to transfer the Agreement to a new owner of its business or property, it must make a request in writing to SiteMinder to do so, which SiteMinder may accept or reject in its sole discretion. The Customer remains liable under this Agreement until SiteMinder agrees in writing to such a transfer.
- A notice or other communication required or permitted to be given by one party to another must be in writing and:
- delivered personally;
- sent by pre-paid mail to the address of the addressee specified in this Agreement;
- sent by facsimile transmission to the facsimile number of the addressee with acknowledgment of receipt from the facsimile machine of the addressee; or
- sent by email to an email address previously used or advised by the other party.
- A notice or other communication is taken to have been given:
- if delivered personally, immediately upon delivery;
- if mailed, on the second Business Day after posting;
- if sent by facsimile before 4pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
- if emailed, on the date sent, unless the recipient is able to demonstrate that the email failed to be delivered.
- By accepting these Terms and Conditions, the Customer agrees that it consents to the electronic provision and delivery of all communications, notices and disclosures from SiteMinder including any communications, notices or disclosures required by applicable law. The Customer may withdraw its consent under this clause at any time by terminating its Account and this Agreement.
- A party may change its address for service by giving notice of that change in writing to the other parties.
- The parties’ respective contact details for notification under this Agreement are as set out in the Registration Form.
17.4. Governing law and jurisdiction
This Agreement is governed by the laws of New South Wales, Australia and each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales.
17.5. Compliance with legal procedures
SiteMinder may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant or other legal order that is deemed to be valid (Legal Process). SiteMinder may deliver or hold any funds or, subject to any applicable privacy policies, Data as required by any Legal Process, even if the Customer is receiving funds or Data on behalf of other parties. Where by permitted by applicable law, SiteMinder will make reasonable efforts to provide the Customer with written notice of the Legal Process by sending a copy of the Legal Process to the Customer. SiteMinder is not responsible for any direct or indirect losses that the Customer may incur as a result of any response to or compliance with a Legal Process.
17.6. Further assurance
Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to this Agreement. Each party acknowledges that it has obtained legal advice, or had the opportunity to obtain legal advice, in connection with this Agreement.
SiteMinder may amend this Agreement or may amend any conditions on the use of the Services at any time and for any reason and will provide the Customer with notice of any amendments by email. The Customer agrees that any amendments will become binding on the Customer in the event that the Customer continues to use the Services after 7 days from the date that SiteMinder notifies Customer of the amendment (or any longer period if required by applicable law).
Each individual executing this Agreement on behalf of a party, including the Administrator, warrants that he or she has full and proper authority to do so and is not aware of any revocation or suspension of the relevant power of attorney or other authorisation.
17.9. Joint and several liability
If the Customer enters this Agreement on behalf of more than one party, such that multiple parties receive Services under this Agreement, each party shall be jointly and severally liable in respect of all Services so provided.
17.10. Whole agreement
In relation to the subject matter of this Agreement:
- these Terms and Conditions and Registration Forms and any other documents, agreements, policies and procedures that are incorporated by reference within these Terms and Conditions or any Registration Forms are together taken to be the whole agreement between the parties;
- set forth your sole and exclusive remedies with respect to the subject matter of this Agreement; and
- supersede all oral and written communications by or on behalf of any of the parties in relation to the subject matter of this Agreement.
17.11. No reliance on warranties and representations
In entering into this Agreement, each party acknowledges that:
- it has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement other than as expressly stated in this Agreement or relevant Registration Form; and
- it has relied entirely on its own enquiries in relation to the subject matter of this Agreement.
In entering into this Agreement, each party acknowledges that:
- Subject to any provision to the contrary, this Agreement will enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons.
- The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of this Agreement will remain in full force and effect following the expiration of this Agreement.
- Each indemnity in this Agreement survives the expiry or termination of this document.
If any part of this Agreement is legally unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.
17.14. No merger
Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that SiteMinder may have against the Customer or any other person at any time.
The parties agree that this Agreement does not create any relationship of partnership or employment, franchise, joint venture or agency between the parties or any other entity referenced and that SiteMinder and each Payment Services Provider is an independent contractor.
A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.