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terms & conditions

Customer Terms and Conditions

Availabilit-e Limited ("the Company") is acting as agent for the accommodation provider ("the Provider") in arranging the booking of the accommodation featured on this website ("the Accommodation").

For the avoidance of doubt, the Company accepts no liability to you in respect of any breach by the Provider of the agreement between you and the Provider for the provision of the Accommodation

Accommodation Provider Terms and Conditions

Availabilit-e Limited ("the Company") has agreed to grant you a non exclusive licence to use the computer software program defined below and to provide certain services to you in accordance with these terms and conditions.

1. Definitions

In these terms and conditions the following expressions have the meanings stated, unless the context otherwise requires:

"Accommodation" the accommodation you have placed on the Website and which may be booked using the Licensed Program;

"Accommodation Price" the price paid by Customers for a Booking, which monies shall be received by the Company as part of the booking process;

"Booking" an Accommodation booking in units of one week placed on the Website by a Customer using the Licensed Program;

"Code" the code relating to the Licensed Program, delivered by the Company to you in accordance with clause 4;

"Customers" the visitors to the Website who place a Booking and who therefore pay the Accommodation Price;

"Licence Fee" the fee for the licence and Services set out in these terms and conditions as the same may be varied in accordance with clause 3.3 below;

"Licensed Program" the software program owned by the Company and known as "Avaliabilit-e";

"Licensed Program Materials" the Licensed Program and all related documentation;

"Services" the provision by the Company of the services set out in clause 5;

"Use" the insertion of the Code into a page on the Website;

"Website" the website from which you advertise the Accommodation.

2. Grant of licence and provision of services

The Company, in consideration of the payment by you from time to time of the Licence Fee in accordance with clause 3:

  1. 2.1 grants to you a non exclusive licence to Use the Licensed Program; and
  2. 2.2 undertakes to you to provide the Services upon these terms and conditions.

3. Licence Fee

  1. 3.1 The Licence Fee shall initially be set at 10% (ten per cent) of the Accommodation Price.
  2. 3.2 The Licence Fee shall be deducted by the Company from the Accommodation Price upon receipt of the Accommodation Price by the Company from each Customer. The balance of the Accommodation Price in respect of each Booking shall be reimbursed by the Company to you by direct debit on a fixed day in each month to such bank account as you may designate.
  3. 3.3 The Company shall be entitled to vary the Licence Fee not more than once in every successive period of 12 months during the currency of these terms and conditions upon giving not less than thirty days' notice thereof to you.

4. Delivery

The Company shall deliver the Code to you or such person as you may designate so that you may arrange the insertion of the Code at an appropriate place on the Website.

5. Services

The Company agrees to provide the following Services to you:

  1. 5.1 the delivery of the Code in accordance with clause 4;
  2. 5.2 the processing of payment for each Booking;
  3. 5.3 the transmission to you and the Customer of confirmatory e-mails in respect of each Booking, which e-mails shall contain a unique identification number for each Booking;
  4. 5.4 the management of a central database containing up to date availability information for the Accommodation;
  5. 5.5 the provision of advice and assistance over the telephone in respect of your reasonable enquiries regarding the operation of the Licensed Program and the Services generally.

6. Property and confidentiality in the licensed program materials

  1. 6.1 The Licensed Program Materials contain confidential information of the Company and all copyright trademarks and other intellectual property rights in the Licensed Program Materials are the exclusive property of the Company.
  2. 6.2 You shall not:
    1. 6.2.1 reverse compile, copy or adapt the whole or any part of the Licensed Program Materials for the purposes of correcting errors in the Licensed Program Materials;
    2. 6.2.2 assign transfer sell lease rent charge or otherwise deal in or encumber the Licensed Program Materials or use the Licensed Program Materials on behalf of any third party or make available the same to any third party; or
    3. 6.2.3 remove or alter any copyright or other proprietary notice on any of the Licensed Program Materials.
  3. 6.3 You shall:
    1. 6.3.1 keep confidential the Licensed Program Materials;
    2. 6.3.2 reproduce on any copy (whether in machine readable or human readable form) of the Licensed Program Materials the Company's copyright and trade mark notices;
    3. 6.3.3 notify the Company immediately if you become aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any third party; and
    4. 6.3.4 without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of the Company in the Licensed Program Materials.

7. No warranty

For the avoidance of doubt, the Company does not warrant that the operation of the Licensed Program will be uninterrupted or error free.

8. Limitation of liability

  1. 8.1 The following provisions set out the Company's entire liability (including any liability for the acts and omissions of its employees agents and sub contractors) to you in respect of any breach of its contractual obligations arising under these terms and conditions AND YOUR ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8.
  2. 8.2 Any act or omission on the part of the Company or its employees agents or sub contractors falling within clause 8.1 above shall for the purposes of this clause 8 be known as an "Event of Default".
  3. 8.3 The Company's liability to you for:
    1. 8.3.1 death or injury resulting from its own or that of its employees' agents' or sub contractors' negligence; and
    2. 8.3.2 damage suffered by you as a result of any breach of the obligations implied by, as applicable, section 12 of the Sale of Goods Act 1979, section 2 of the Supply of Goods and Services Act 1982 or section 8 of the Supply of Goods (Implied Terms Act) 1973 shall not be limited.
  4. 8.4 Subject to the provisions of clause 8.3 above the Company's entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the aggregate of the Licence Fee paid in the immediately preceding period of 12 months.
  5. 8.5 Subject to clause 8.3 above the Company shall not be liable to you in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of you incurring the same.
  6. 8.6 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under these terms and conditions.
  7. 8.7 You hereby agree to afford the Company not less than thirty days (following notification thereof by you) in which to remedy any Event of Default hereunder.
  8. 8.8 Except in the case of an Event of Default arising under clause 8.3 above the Company shall have no liability to you in respect of any Event of Default unless you shall have served notice of the same upon the Company within 2 years of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
  9. 8.9 Nothing in this clause shall confer any right or remedy upon you to which you would not otherwise be legally entitled.

9. Intellectual property rights indemnity

  1. 9.1 The Company will indemnify and hold harmless you against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Licensed Program Materials by you infringes the patent copyright registered design or trade mark rights of said third party (an "Intellectual Property Infringement") provided that you:
    1. 9.1.1 give notice to the Company of any Intellectual Property Infringement forthwith upon becoming aware of the same;
    2. 9.1.2 give the Company the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and do not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the Company; and
    3. 9.1.3 act in accordance with the reasonable instructions of the Company and give to the Company such assistance as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents.
  2. 9.2 The Company shall reimburse you your reasonable costs incurred in complying with the provisions of clause 9.1 above.
  3. 9.3 The Company shall have no liability to you in respect of an Intellectual Property Infringement if the same results from any breach of your obligations under these terms and condtions.
  4. 9.4 In the event of an Intellectual Property Infringement the Company shall be entitled at its own expense and option either to:
    1. 9.4.1 procure the right for you to continue using the Licensed Program Materials; or
    2. 9.4.2 make such alterations modifications or adjustments to the Licensed Program Materials so that they become non infringing without incurring a material diminution in performance or function; or
    3. 9.4.3 replace the Licensed Program Materials with non infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
  5. 9.5 The provisions of clause 8 above shall not apply to this clause 9.

10. Your obligations

  1. 10.1 It is your responsibility to inform the Company should the availability of the Accommodation for Bookings change at any time.
  2. 10.2 You agree that any Booking made on the Website using the Licensed Program shall take precedence over a booking taken by you by any other means, and you agree that the Company shall not be liable in the event of a double-booking caused by your failure to update the Company in accordance with clause 10.1.

11. Agency

You acknowledge that the Company is mermely acting as your agent in facilitating the contract for the provision of the Accommodation by you to the Customers.

12.Risk in the licensed program materials

Risk in the Licensed Program Materials will pass to you upon the date of delivery under clause 4. If subsequently the Licensed Program Materials are (in whole or in part) destroyed damaged or lost the Company will upon request replace the same subject to you paying its then prevailing charges.

13. Termination

  1. 13.1 The contract between us may be terminated forthwith by either party:
    1. 13.1.1 if the other commits any material breach of these terms and conditions and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty days of a written request to remedy the same;
    2. 13.1.2 if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction), or the other is declared bankrupt.
  2. 13.2 Within seven days of the termination of the contract between us (howsoever and by whomsoever occasioned) you shall at the Licensor's sole option either return all copies of the Licensed Program Materials in your possession or control or shall destroy all copies of the Licensed Program Materials in your possession or control.

14. Force majeure

  1. 14.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires strikes (of its own or other employees) insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an "Event of Force Majeure").
  2. 14.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.

15. Waiver

The waiver by either party of a breach or default of any of the provisions of these terms and conditions by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

16. Notices

Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within 12 hours) to the address or to the facsimile number of the other party and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile transmission) upon the expiration of 12 hours after dispatch.

17. Invalidity and severability

If any provision of these terms and conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of these terms and conditions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

18. Entire agreement

  1. 18.1 You accept that the Licensed Program Materials were not designed and produced to your individual requirements.
  2. 18.2 Nothing in these terms and conditions is intended to exclude a party's liability for fraud or fraudulent concealment.

19. Assignment and sub licensing

You shall not be entitled to assign or otherwise transfer the contract between us nor any of your rights or obligations under such contract nor sub license the use (in whole or in part) of the Licensed Program Materials without the prior written consent of the Company.

20. Headings

Headings to clauses in these terms and conditions are for the purpose of information and identification only and shall not be construed as forming part of these terms and conditions.

21. Law

These terms and conditions shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the non exclusive jurisdiction of the English courts.

22. Exclusion of third party rights

The Contracts (Rights of Third Parties) Act 1999 shall not apply to these terms and conditions and no rights or benefits expressly or impliedly conferred by it shall be enforceable under that Act by any other person

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