General Conditions for Proprietors
THE PROPRIETOR’S ATTENTION IS DRAWN TO CLAUSE 10 OF THESE CONDITIONS.
In these Conditions:
1.1 the following words shall have the following meanings:
"Accommodation Agreement" means the legally binding agreement made between a Proprietor and a Customer in relation to a Booking;
"Accommodation" means any hotel, apartment, guest house, villa, cottage, gîte or other accommodation of any description which is offered for booking through the Website;
"Accommodation Information" means any information placed on the Website by the Proprietor relating to particular Accommodation, including but not limited to: details of such Accommodation (including its name and any pictures, photographs or descriptions of it), the availability of room(s), details of the room(s), rates (including all applicable taxes, duties, levies, surcharges and fees), facilities and amenities available, existence of any refurbishment or other works at the Accommodation, details of any closure of the Accommodation, accreditations, awards cancellations policy;
"Booking" means a reservation of any Accommodation made through the Website and / or via the Website’s contact centres;
"Commission" means the amount payable by a Proprietor to LateRooms for each Booking based on a percentage of the Gross Ticket Value, the percentage of which is as set out on the Extranet and which may vary from time to time;
"Conditions" means these General Conditions for Proprietors as amended pursuant to Condition 2.3;
"Contract" means the contract between LateRooms and a Proprietor for the use of the Website formed in accordance with Condition 2;
"Credit Check" means the background credit checks that LateRooms may in its sole discretion carry out on Proprietors as part of the Registration Process from time to time;
"Customer" means a person who makes a Booking;
"Customer Review" means a review by a Customer of the Accommodation (and other services provided with it by the Proprietor);
"Extranet" means the online system which can be accessed by a Proprietor to upload, amend and/or verify its Accommodation Information and Bookings and which also provides details of the applicable Commission percentage;
"Gross Ticket Value" means the total amount payable by a Customer to a Proprietor in relation to a Booking, inclusive of: Taxes, cancellation fees, no show fees and other extra’s (such as breakfast), service charges and surcharges which are included in the amount to be paid by the Customer at the time they make their Booking, but exclusive of: Incidental Local Charges;
"Incidental Local Charges" means any supplements, levies, duties, surcharges and other mandatory local charges (such a local city taxes) which are not required under applicable law to be, and therefore are not, included in the amount to be paid by the Customers at the time they make their Booking;
"IP" means all intellectual and industrial property rights of any kind whatsoever including patents, rights in know-how, domain names, business names, registered trade marks, trade names, registered designs, models, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans specifications, designs and computer software or otherwise) database rights, topography rights, any rights in any invention, discovery or process and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions
"LateRooms" means Late Rooms Limited (Company Number 03816947) (a company incorporated in England) whose registered office is at TUI Travel House, Crawley Business Quarter, Fleming Way, Crawley, West Sussex, RH10 9QL;
"Non-Invoiced Booking" means a Booking made by a Customer but not yet invoiced to the Proprietor by LateRooms;
"Proprietor" means the proprietor, provider or operator of the relevant Accommodation, or persons authorised to act on their behalf as provider, operator, manager or other arrangement;
"Ranking" means the order in which any Accommodation is listed on a Website;
"Registration Process" means the acceptance of the Proprietor’s application by LateRooms, whereby the Proprietor will receive a user name and password to enable the Proprietor to access the Extranet and/or place Accommodation Information on the Website.
"Taxes" means value added tax, goods and services tax, sales tax or any other similar taxes or national, governmental taxes charged to the Customer in relation to a Booking;
"Website" means the websites accessible through the URLs www.LateRooms.com and www.AsiaRooms.com or any other URL used or owned or operated by LateRooms, its affiliates or partners for the purposes of searching for and/or booking accommodation;
"Working Day" means a day that is not a Saturday, Sunday or bank holiday in England.
1.2 Any reference in these Conditions to any statute or statutory provision will include any subordinate legislation made under it and will be construed as a reference to such statute, statutory provision and/or subordinate legislation as modified, amended, re-enacted, extended, consolidated and/or replaced and in force from time to time.
1.3 All headings in these Conditions are for reference only and shall not affect their construction or interpretation.
1.4 Unless the context otherwise requires:
1.4.1 references to the singular include the plural and vice versa and references to any gender includes every gender;
1.4.2 references to a "person" include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality.
1.5 Any words following the words "include", "includes", "including", "in particular" or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
2.1 The Contract will be upon the Conditions to the exclusion of all other terms and conditions, including any terms or conditions which the Proprietor purports to apply.
2.2 The Contract will commence on successful completion of the Registration Process and/or the date on which the Proprietor first places Accommodation Information on the Website, whichever is the earlier.
2.3 LateRooms reserves the right to update or amend these Conditions, and any update or amendment shall take effect 14 days after the date they are communicated to the Proprietor (such communications may be made by LateRooms by e-mail and/or included on the Extranet). If the Proprietor notifies LateRooms that it objects to any update or amendment within 14 days of receiving any such communication from LateRooms, LateRooms reserves the right to terminate the Contract immediately by written notice. If LateRooms does not exercise this right then such update or amendment shall not take effect. If no such objection is made by the Proprietor within 14 days of receiving any such communication from LateRooms, the fact that the Proprietor has continued to keep its Accommodation Information on the Website will be deemed acceptance of the update or amendment.
2.4 The Proprietor will ensure that it notifies LateRooms in writing of any changes to its contact details provided during the Registration Process or otherwise (including postal address, telephone number and facsimile number) and shall update its contact details on the Extranet within 5 Working Days of such change.
2.5 Each party warrants and represents that it has full capacity and authority to enter into, grant the rights and perform the Contract.
2.6 The Proprietor warrants that the person completing the Registration Process on behalf of the Proprietor has full capacity and authority to do so.
2.7 The Proprietor will notify LateRooms of any sale or disposal or other change in ownership of the Accommodation within 5 Working Days of such sale, disposal or change in ownership. The Proprietor shall remain liable for all sums due to LateRooms under these Conditions until all such sums have been paid in full. LateRooms will be entitled to suspend placement of the Accommodation Information on the Website until such time as the new Proprietor has completed the Registration Process, passed any Credit Check standards required by LateRooms (where relevant), entered into a contract with LateRooms and provided up to date payment details.
2.8 The availability of hotel room nights ("Availability") offered to LateRooms shall at all times during the term of this Contract be at least as favourable as Availability offered by the Proprietor to customers via its own website(s) and/or to any third party with whom the Proprietor has a business relationship similar to the relationship that it has with LateRooms. For the avoidance of doubt, LateRooms shall access Availability from the same system of allocation of rooms as any other third party with whom the Proprietor has a business relationship similar to that which it has with LateRooms. Further the Availability offered to LateRooms shall at all times be capable of being booked immediately by Customers on the Website and shall not be "on referral".
2.9 The level, selection and scale of Accommodation offered to LateRooms shall at all times during the term of this Contract be at least as favourable as that offered by the Proprietor to customers via its own website(s) and/or to any third party with whom the Proprietor has a business relationship similar to that which it has with LateRooms.
2.10 Any cancellation conditions offered to LateRooms shall at all times during the term of this Contract be at least as favourable to those offered by the Proprietor to customers via its own website(s) and/or to any third party with whom the Proprietor has a business relationship similar to that which it has with LateRooms.
2.11 The Proprietor shall not disparage, bring in to disrepute and/or speak detrimentally of LateRooms, or cause and/or carry out any activities that may cause damage to LateRooms’ name, brand, reputation, goodwill, business or relationships with any of its partners and/or other third parties.
3. ACCOMMODATION INFORMATION
3.1 Subject to the successful completion of the Registration Process by the Proprietor and in consideration of payment of the Commission, LateRooms will permit the Proprietor to place Accommodation Information on the Website in accordance with these Conditions.
3.2 The Proprietor will be solely responsible for all Accommodation Information placed on the Website and shall indemnify, keep indemnified LateRooms and its affiliates and partners from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect and consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings and legal costs (on a full indemnity basis) and judgements which LateRooms and/or all or any of its affiliates and partners incurs or suffers as a consequence of the uploading of such Accommodation Information to a Website or such Accommodation Information being or becoming untrue, inaccurate or misleading.
3.3 The Proprietor warrants and represents that all Accommodation Information will:
3.3.1 be true, accurate and not misleading;
3.3.2 be kept up to date and will be updated on a daily basis (or more frequently as may be required) by the Proprietor or other person authorised by the Proprietor;
3.3.3 comply with any reasonable instructions issued by LateRooms from time to time;
3.3.4 be its original work and not infringe the IP of any third party and will ensure all moral rights arising from it pursuant to section 78 of the Copyright, Designs and Patents Act 1988 or otherwise have been waived;
3.3.5 not be obscene, libellous or defamatory of any person; and
3.3.6 not be in breach of any applicable law, rules, legislation, regulation or code of practice and shall be updated immediately to reflect any change in applicable law, rules, legislation, regulation or codes of practice.
3.4 The Proprietor will not, and will procure that any person authorised to input the Accommodation Information will not, include on the Website any telephone number, contact details, social media icons (including Twitter or Facebook) or other references for direct contact, identifying the Proprietor or any website (including any hyperlink) of the Proprietor or any third party in the Accommodation Information.
3.5 The Proprietor undertakes to make the Accommodation available on the Website at the Proprietor’s best market rates for such Accommodation at the relevant time.
3.6 The Proprietor may remove the Accommodation Information from the Website at any time and has no obligation to agree to continue to place Accommodation Information on the Website.
3.7 The Proprietor retains responsibility for the Accommodation Information in the case of updating via third party software solutions. LateRooms shall use reasonable endeavours to make itself compatible with these tools, but does not guarantee compatibility.
4.1 The Proprietor warrants and represents that for the term of the Contract, it has and will have all necessary permits, licences and authorisations necessary for carrying out its business, operating the Accommodation and complying with its obligations under the Contract.
4.2 The Proprietor will ensure that:
4.2.1 the Accommodation booked by a Customer complies at all times with the Accommodation Information available to such Customer at the time the Customer makes the relevant Booking; and
4.2.2 the Accommodation is kept to an appropriate standard of cleanliness, maintenance and health and safety having regard to any classification of the Accommodation by an official ratings organisation and applicable law.
4.3 If, during their stay at the Accommodation, a Customer is not satisfied with the Accommodation or other service provided by the Proprietor, the Proprietor will use its best endeavours to rectify the situation immediately to the Customer’s satisfaction.
4.4 If a complaint is ongoing and/or received by the Proprietor from the Customer after their stay at the Accommodation, the Proprietor will provide to LateRooms’ customer services department a copy of the complaint and the resolution agreed (if any) with such Customer within 7 days of receipt of the original complaint.
4.5 If a complaint is received by LateRooms following a Customer’s stay, LateRooms will notify the Proprietor in writing within 48 hours of receipt of such complaint and the Proprietor will:
4.5.1 provide feedback on all issues raised in the complaint within 7 days of receipt;
4.5.2 be directly liable for any compensation payments made to a Customer as a result of failure to provide the Accommodation in accordance with the Accommodation Information; and
4.5.3 reimburse LateRooms for any goodwill compensation payments made by LateRooms to a Customer in settlement of such complaints within 5 Working Days of receipt of LateRooms invoice for the same.
4.6 The Proprietor shall indemnify, keep indemnified LateRooms and its affiliates and partners from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect and consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings and legal costs (on a full indemnity basis) and judgements which LateRooms and/or all or any of its affiliates and partners incurs or suffers as a consequence of any use by the Customer and members of the Customer’s party of the Accommodation or other services offered by the Proprietor.
5.1 LateRooms shall use reasonable endeavours to provide the Proprietor with details of Bookings by email, fax and/or via the Extranet.
5.2 The Accommodation Agreement is formed when the Booking confirmation email is sent to the Customer by LateRooms. The Proprietor shall act as the principal in relation to the Accommodation Agreement made with the Customer. To the extent necessary, the Proprietor hereby empowers and grants LateRooms explicit authorisation to conclude an Accommodation Agreement on the Proprietor’s behalf when a Customer makes a Booking.
5.3 The Proprietor will not cancel or amend any Booking, and shall honour the rates advertised on the Website at the time the Booking was made. The Proprietor acknowledges that Bookings can be made up to a year in advance on the Website. The Proprietor agrees to handle any Booking in compliance with the Accommodation Information contained on the Website at the time the Booking was made, including any supplementary information and/or wishes made known by the Customer.
5.4 The rates confirmed to the Customers following a Booking shall be inclusive of Taxes. The Proprietor will be liable for any increase in any Taxes which occurs after a Booking is confirmed and the Proprietor agrees to indemnify and keep indemnified LateRooms in respect of any liability LateRooms may incur in respect of such increase in any of the Taxes.
5.5 If the Proprietor is not able to honour any Booking due to an overbooking situation, the Proprietor will notify LateRooms immediately in writing and (at its own cost and risk) provide alternative accommodation to the affected Customer of a standard at least equivalent to or better than the Accommodation which is the subject of such Booking. If the Accommodation which is the subject of such Booking is not available on arrival, the Proprietor will as well as providing such alternative accommodation also provide free transportation to the alternative accommodation for the Customer and others comprised within the Customer’s Booking. The Proprietor is still responsible for paying the Commission due, unless the proprietor of the accommodation that the Customer is relocated to agrees with LateRooms that the Commission will be paid by such replacement proprietor, in which case the Proprietor must supply LateRooms with the details of such replacement proprietor, the replacement accommodation and the final price and the replacement proprietor’s agreement to pay the commission so that the relevant commission (which will not be less than the Commission which would have been payable by the Proprietor) can be calculated correctly.
5.6 The Proprietor will notify LateRooms and affected Customers immediately in writing if there is a change to the availability of or standard of facilities (including any planned building work) at the Accommodation.
5.7 Subject to Condition 5.8, the Proprietor will take payment from a Customer upon check-in at the Accommodation.
5.8 Notwithstanding Condition 5.7, the Proprietor may offer further reduced rates to Customers if the Customer agrees to make payment at the time a Booking is made. The Proprietor warrants that any pre-payment rates will be clearly stated and explained in the Accommodation Information and brought to the Customer’s attention prior to a Booking being completed. Such Bookings will be termed ‘Advance Purchase Bookings.’
5.9 The Proprietor warrants that any transaction fees, such as debit card, credit card or any other payment method fees, that it may charge the Customers shall be compliant with all applicable laws, legislation, regulation or code of practice and shall be brought to the Customer’s attention prior to a Booking being completed.
5.10 It is the Proprietor’s responsibility to update or modify the Accommodation’s cancellation policy on the Extranet.
5.11 On or before the third Working Day of each calendar month, the Proprietor will update the Non-Invoiced Bookings page on the Extranet in respect of any Non-Invoiced Bookings which are amended or cancelled by a Customer or if a Customer has failed to arrive at the Accommodation ("no-show") to take up their Booking during the previous calendar month. For the avoidance of doubt, Commission will be payable on any no-show or cancellation fees charged to a Customer.
5.12 Any Non-Invoiced Bookings which have not been updated in accordance with Condition 5.11 are deemed to be confirmed by the Proprietor and LateRooms will be entitled to Commission in respect of such Non-Invoiced Bookings.
5.13 If any updates made by the Proprietor in accordance with Condition 5.11 are incorrect, LateRooms reserves the right to reject such amendments and LateRooms will be entitled to Commission in respect of such Bookings. Further, LateRooms may suspend and/or terminate the Contract immediately on the provision of written notice to the Proprietor in the event that the Proprietor is updating Non-Invoiced Bookings incorrectly or fraudulently. LateRooms reserves the right to perform checks on any updates the Proprietor makes to Non-Invoiced Bookings.
5.14 If the Proprietor is contacted by LateRooms regarding a Booking, calls may be recorded for monitoring and training purposes. In the event of a dispute regarding a Booking, LateRooms reserves the right to review any such call transcript.
5.15 The Proprietor acknowledges and agrees that the Accommodation Agreement is made between the Proprietor and the Customer and that LateRooms will have no liability whatsoever in respect of any costs, expenses, liabilities (including any tax liability), injuries, direct, indirect and consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings and/or legal costs incurred or suffered by the Customer and/or the Proprietor under or in connection with any Accommodation Agreement, including any act or omission of a Customer or any failure by the Proprietor to obtain sufficient pre-approved security or payment from a Customer.
6. WEBSITE AND EXTRANET
6.1 The Proprietor will:
6.1.1 report to LateRooms any suspected faults in or infiltration of the Website of which it may become aware as soon as such suspected faults or infiltration come to the Proprietor's attention;
6.1.2 ensure that it has all necessary rights, licences and consents to:
184.108.40.206 incorporate the Accommodation Information into the Website;
220.127.116.11 link the Website to websites or software owned by the Proprietor or by third parties to which the Proprietor wishes to use in order to transfer or exchange the Accommodation Information;
6.1.3 comply with the reasonable instructions of LateRooms in relation to the Proprietor’s use of the Website and/or Extranet.
6.2 The Website, Extranet and/or any other services provided by LateRooms are provided on an "as is" basis. LateRooms does not warrant or represent that the Website, Extranet or any of its services will meet any particular criteria of performance or quality and all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the services and availability or operation of the Website and Extranet are expressly excluded from the Contract to the extent permitted by law.
6.3 Due to the nature of the world wide web, LateRooms does not warrant or represent that the Website and/or the Extranet (or any part of them) will be available at all times or that the Website and/or the Extranet will not be infiltrated by unauthorised users or hackers, nor that the Website and/or the Extranet will be free of faults. LateRooms shall have no liability whatsoever in the event that the Website and/or the Extranet (or any part of them) is not available, is infiltrated by unauthorised users or hackers or has faults and whilst LateRooms will endeavour to remedy such problems it does not guarantee to do so.
6.4 The Proprietor acknowledges and agrees that any Accommodation Information or other information uploaded to the Extranet by the Proprietor will be available instantaneously on the Website.
6.5 LateRooms may at any time:
6.5.1 suspend the availability of the Website and/or the Extranet (or any part of them) for the purpose of repair, maintenance or improvement or to preserve security;
6.5.2 vary the technical specifications of the Website and/or the Extranet (or any part of them) for operational reasons;
6.5.3 remove or amend any or all of the Accommodation Information on the Website which LateRooms (acting reasonably) considers unlawful or has been placed on the Website in breach of the Contract;
6.5.4 suspend the relevant part of the Website and/or the Extranet featuring the Accommodation and the Accommodation Information if the Proprietor fails to pay any Commission on the due date.
7. CUSTOMER REVIEWS
7.1 Subject to Condition 7.2, LateRooms may publish Customer Reviews on the Website.
7.2 LateRooms will use reasonable endeavours to provide the Proprietor with a copy of a Customer Review no less than 48 hours prior to its publication. Customer Reviews shall automatically be published.
7.3 If the Proprietor objects to the contents of a Customer Review, the Proprietor will notify LateRooms of such objection in writing to the LateRooms Reviews Executive within 14 days of publication of the Customer Review on the Website providing any evidence supporting its contrary views / objections.
7.4 LateRooms will consider the objections of a Proprietor notified to it in accordance with Condition 7.3 and any decision to remove the relevant Customer Review will be at the absolute discretion of LateRooms and the decision of LateRooms is final. Any Customer Review that cannot be proved to the contrary shall stand as the reasonable opinion of the Customer.
7.5 Notwithstanding Condition 7.4, subject to vetting by the LateRooms Review Executive, the Proprietor may reply to any Customer Review and LateRooms agrees to provide the Proprietor with the relevant Customer’s booking reference number in order to do so.
7.6 LateRooms will not publish any Customer Review that LateRooms considers:
7.6.1 to be inappropriate, defamatory, vulgar or abusive;
7.6.2 to contain any advertising or marketing of any kind; or
7.6.3 may disclose a person’s identity or personal details.
7.7 If, in LateRooms’ reasonable opinion, Customer Reviews reflect low standards at the Accommodation, LateRooms reserves the right to investigate any such Customer Reviews and/or may suspend or terminate the Contract immediately on the provision of written notice to the Proprietor.
8.1 LateRooms may determine the Ranking of any Accommodation in its absolute discretion.
8.2 The Ranking may change as a result of the Proprietor updating information which is within its control. Such updates can be made by the Proprietor through the Extranet. As the Ranking is generated automatically, no claim may be made against LateRooms by the Proprietor in relation to the Ranking.
9. COMMISSION AND PAYMENT
9.1 The Proprietor will pay to LateRooms the Commission on the Gross Ticket Value in accordance with this Condition 9.
9.2 The standard Commission percentage shall be as set out on the Extranet and LateRooms reserves the right to vary this from time to time. The Commission percentage may further increase in the event the Proprietor agrees to participate in any promotional packages offered by LateRooms from time to time. The Commission percentage payable by the Proprietor in relation to each Booking shall be displayed on the Proprietor’s Non-Invoiced Bookings page on the Extranet.
9.3 LateRooms may issue an invoice for the Commission which has accrued during the previous calendar month for all Non-Invoiced Bookings on or after the fourth Working Day of each calendar month and such invoices will only be available to the Proprietor via the Extranet.
9.4 All payments will be made in full and without any set-off or any deduction or withholding by the Proprietor, including on account of any counter-claim, in the currency as stated on the invoice in cleared funds by:
9.4.1 direct debit or by BACS (Bank Automated Clearing System) to such account(s) as is notified to the Proprietor by LateRooms;
9.4.2 by debit or credit card; or
9.4.3 by cheque where the Proprietor is based in the EU.
within 30 days of the date of the relevant invoice.
9.5 The Parties have agreed that, in the event a currency as stated on the invoices in accordance with Condition 9.4 is not longer an applicable currency and/or LateRooms amends such currency to a new currency, all payments shall need to be made in the new currency, further any outstanding payments payable by the Proprietor to LateRooms under this Contract will be made in the new currency at the old/new currency exchange rate provided for any relevant legislation enacting the conversion (conversion currency rate) (if relevant) or in accordance with the standard exchange rate as at the day such payment is due.
9.6 If the Proprietor has agreed to automatic deduction of Commission due to LateRooms from a debit or credit card number, LateRooms will be deemed to have continuing authority to make such deduction until such time as the Proprietor notifies LateRooms in writing of its intention to make payment by an alternative means.
9.7 The Proprietor is responsible for all costs charged by either party’s banks for the transfer and receipt of funds.
9.8 Any sum payable under the Contract is exclusive of VAT (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.
9.9 All amounts payable to LateRooms under this Contract shall be paid by the Proprietor free and clear of all deductions and withholdings of any kind, save only as may be required by law. Should the Proprietor be required by law to make a deduction or withholding from any amount payable to LateRooms under this Contract, it shall (i) take all commercially reasonable measures that may be necessary to assist LateRooms to claim exemption from the deduction or withholding or, if that is not possible, a credit for it under any applicable double taxation or similar agreement from time to time in force; (ii) pay the required amount to the relevant governmental authority; and (iii) from time to time, upon request, give LateRooms proper evidence as to the deduction or withholding and payment over of the tax deducted or withheld.
9.10 If any sum payable under the Contract is not paid on or before the due date for payment LateRooms may:
9.10.1 charge the Proprietor interest on that sum at 4% per annum above the base lending rate from time to time of HSBC Plc from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis and be compounded monthly; and/or
9.10.2 cease to permit the Proprietor to place Accommodation Information on the Website until such time as those sums are paid in full and may remove the Proprietor’s Accommodation Information from the Website; and/or
9.10.3 take appropriate legal actions; and/or
9.10.4 suspend or terminate the Contract immediately on the provision of written notice to the Proprietor.
9.11 In the event of dispute between LateRooms and the Proprietor (such as on the amount of Commission due), the Proprietor agrees to pay any undisputed amount of the Commission in accordance with the terms of this Contract. In the event that any Commission payments are withheld from being paid pending the resolution of any dispute, once the dispute is settled and where the Proprietor is required to make a balancing payment to LateRooms, the Proprietor make such payment within 5 Working Days following resolution of said dispute and LateRooms shall be entitled to apply interest in accordance with Condition 9.10.1.
9.12 LateRooms has the right to change the credit terms provided to the Proprietor if the Proprietor does not meet LateRooms’ Credit Check standards which it has in place from time to time, and will notify the Proprietor in writing of any new terms which shall take effect 14 days after the date of such notice.
9.13 The Proprietor will be deemed to have opted in to receive the Customer’s credit or debit card information, unless it notifies LateRooms to the contrary in writing. By opting in to receiving the information the Proprietor warrants that is shall:
9.13.1 protect stored cardholder data;
9.13.2 develop and maintain secure systems and applications;
9.13.3 restrict access to cardholder data on a business need-to-know basis;
9.13.4 obtain and maintain any merchant accreditation required and shall operate in accordance with the PCI DSS Data Security Standards ("PCI-DSS") as may be amended from time to time. The Proprietor acknowledges that it is responsible for the security of the cardholder data it possesses.
9.14 Where the Proprietor has opted in or is deemed to have opted in pursuant to Condition 9.13, LateRooms shall use its reasonable endeavours to supply credit card or debit card details of the Customer for the purpose of guaranteeing the Booking and/or for payment of Advance Purchase Bookings. The Proprietor retains responsibility for ensuring such details are correct, complete and/or accurate and that the limit of credit is sufficient to guarantee or pay for the Booking and agrees to notify the Customer and LateRooms in writing if found otherwise. If the credit or debit card offers no or insufficient guarantee or payment for the Booking or are otherwise incomplete or inaccurate for any reason, the Proprietor will invite the Customer to guarantee or pay for the Booking in an alternative manner. If the Customer is unable or unwilling to do this, the Proprietor may cancel the Accommodation Agreement with the Customer with the prior written consent of LateRooms. Once transmitted, LateRooms is unable to re-supply the card verification code of the Customer’s credit or debit card. LateRooms does not guarantee delivery within a specific time period of the Customers’ credit or debit card details.
9.15 LateRooms acknowledges that it is responsible for the security of cardholder data that it possesses. LateRooms transfers the responsibility of the cardholder data to the Proprietor at the time of sending such cardholder data to the Proprietor.
9.16 Should a Proprietor not pay Commission due to LateRooms in accordance with this Condition 9, including in particular within the time constraints outlined at Condition 9.4, LateRooms reserves the right to pass the claim onto a third party debt collection agency of their choosing. The Proprietor will then be removed from the Website. The Proprietor shall only be able to reappear on the Site subject to the Proprietor:
9.16.1 agreeing that their method of payment shall now be restricted to direct debit;
9.16.2 that they pay any third party agency fees incurred by LateRooms in the recovery of their debt.
9.17 LateRooms reserves the right to ask all Proprietors to move onto a direct debit or BACS arrangement.
10. WARRANTY AND LIABILITY
10.1 Except as set out expressly in the Contract, LateRooms makes no warranties or representations, either express or implied, in relation to whole or any part of the Website or Extranet or any other matter relating to the Contract, including but without limitation: any warranties or conditions of title, usability, condition, operation, non-infringement of IP, completeness, accuracy, satisfactory quality or fitness for a particular purpose. LateRooms shall use reasonable skill and care in relation to carrying out its obligations under the Contract.
10.2 The following provisions set out the entire liability of LateRooms, its affiliates and partners and its and their respective employees, directors, agents and/or sub-contractors to the Proprietor in respect of any breach of the Contract, any claim under an indemnity, any breach of statutory duty, any representation, or any tortious act or omission, including negligence, arising under or in connection with the Contract ("Liability").
10.3 Subject to Conditions 10.4 and 10.6, the total aggregate Liability which arises from or in connection with this Contract shall not exceed the lower of:
10.3.1 100,000 pounds sterling; and
10.3.2 the aggregate Commission (excluding VAT or equivalent tax) paid to LateRooms by the Proprietor during a period of 12 months immediately preceding the date on which the first notification of a claim for Liability is made in writing to LateRooms or any of its affiliates and partners or any of its or their respective employees, directors, agents or sub-contractors.
10.4 Subject to Condition 10.6, Liability will not include liability for:
10.4.1 loss of profit or anticipated profit (in each case whether direct, indirect or consequential);
10.4.2 loss of revenue, loss of production, loss of contract, loss of business or economic loss (in each case whether direct, indirect or consequential);
10.4.3 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential);
10.4.4 loss of anticipated savings or loss of margin or loss of overhead recovery (in each case whether direct, indirect or consequential);
10.4.5 loss of data (whether direct, indirect or consequential);
10.4.6 liability of the Customer to third parties (whether direct, indirect or consequential); or
10.4.7 indirect, consequential or special loss.
10.5 The Proprietor shall indemnify, keep indemnified LateRooms and its affiliates and partners from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect and consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings and legal costs (on a full indemnity basis) and judgements which LateRooms and/or all or any of its affiliates and partners incurs or suffers as a consequence of any direct or indirect breach of failure in performance by the Proprietor of the terms of the Contract.
10.6 Nothing in the Contract shall operate to exclude or limit the liability of LateRooms for:
10.6.1 breach of its obligations arising under Section 2 Supply of Goods and Services Act 1982; or
10.6.2 death or personal injury caused by its negligence; or
10.6.3 fraud; or
10.6.4 a deliberate breach of the Contract by LateRooms; or
10.6.5 any matter for which LateRooms is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
10.7 The provisions of this Condition 10 shall survive the termination or expiry (for whatever reason) of the Contract.
11.1 The Proprietor shall maintain adequate insurance cover with a reputable insurance company or institution in respect of all Accommodation against fire, flood, occupier’s liability, and such other risks as are usually covered by a supplier or lease holder’s comprehensive policy and all third party (public liability) risks, including, any liability arising directly or indirectly from or in conjunction with any claims in respect of (i) loss of, or damage to, any real or personal property; (ii) the personal injury, or death of, any person; (iii) third party property loss or damage; or (iv) its liability to third parties to whom it provides the Accommodation and other services.
11.2 The Proprietor shall at LateRooms’ request provide existing evidence of the insurance set out in Condition 11.1 including a proof of validity of such insurance cover and payment of all premiums due on each policy.
11.3 The Proprietor warrants that nothing has or will be done or be omitted to be done which may result in any of the insurance policies set out in Condition 11.1 being or becoming void, voidable or unenforceable.
11.4 The Proprietor undertakes to comply with all relevant laws, regulations and codes of practice including without limitation, those relating to hygiene, fire, safety, and security of persons, planning, permits and licensing, for the provision of the Accommodation.
11.5 The Proprietor shall ensure that all fire exits in the Accommodation are clearly marked and accessible at all times and are not locked or other way blocked. Emergency lighting, fire extinguishers and fitted smoke alarms shall be installed on all floors of the accommodation and they shall be regularly tested for proper operation. Printed instructions shall be displayed in English and the local language of the country in which the Accommodation is based (if different) in a prominent position in every room in the Accommodation explaining the procedures to be followed in case of emergency.
12.1 The Proprietor shall keep confidential and take all necessary steps to ensure the continued confidentiality of its account identification details, username and password, security encryption devices and other confidential information relating to any of the Website, the Extranet and its relationship with LateRooms ("Confidential Information") and shall use the Confidential Information only for the purposes of carrying out the Contract.
12.2 The Proprietor will share Confidential Information only with such of its employees as need to know the Confidential Information to be able to carry out the Proprietor’s obligations under or in relation to the Contract, provided that such employees of the Proprietor are bound by equivalent obligations of confidentiality.
12.3 The Proprietor will notify LateRooms immediately in the event of a third party stealing its password or using its account identification details or other Confidential Information.
12.4 Confidential Information will not include information which:
12.4.1 at the time of disclosure was in the public domain or subsequently enters into the public domain other than as the direct or indirect result of a breach of this Agreement by the Proprietor (or its employees);
12.4.2 the Proprietor can prove, to the reasonable satisfaction of LateRooms from written records or other substantive evidence, has been received by the Proprietor at any time from a third party who did not acquire it in confidence and who is free to make it available to the Proprietor without limitation.
13. PROTECTION OF PERSONAL DATA
13.1 The Proprietor acknowledges and agrees that any personal data (as defined by the Data Protection Act 1998) collected by LateRooms from the Customer ("Customer Data") shall be processed and transmitted in compliance with Data Protection Act 1998, the European Directives 95/46 and 2002/58, as well as any other legislation relating to personal data protection that substitutes, complements and develops it ( together "PDPR"). LateRooms shall remain the data controller and owner of the Customer Data at all times.
13.2 The Proprietor agrees that it shall only process Customer Data in order to comply with its obligations under this Contract and the Accommodation Agreement. The Proprietor shall not use the Customer Data to send any solicited or unsolicited marketing communications to the Customers.
13.3 Each of LateRooms and the Proprietor warrants to the other that it has implemented and will continue to implement in accordance with all applicable data protection, the necessary organisation and technical security measures within their scope to guarantee personal data protection and avoid its alteration, loss, illegal use and non authorised access.
13.4 Any personal data which LateRooms may disclose to the Proprietor is obtained by the Proprietor and shall be treated and transmitted with strict observation of and in total compliance with PDPR.
13.5 The Proprietor accepts that LateRooms will contact it with marketing and service messages. LateRooms will provide the opportunity to opt out of these messages.
14. INTELLECTUAL PROPERTY
14.1 LateRooms shall (as between LateRooms and the Proprietor) own the copyright, trade marks and all other IP in the Website and Extranet (including in the design, layout, text and graphics of them) and the names "LateRooms" and "AsiaRooms" and any images, pictures, logos, materials or icons associated with them ("LateRooms IP").
14.2 The Accommodation Information shall remain the exclusive property of the Proprietor. The Accommodation Information may be edited or modified by LateRooms and subsequently be translated into other languages, the translated versions of the Accommodation Information remain the exclusive property of LateRooms. The edited and translated content shall be for the exclusive use by LateRooms on the Website and shall not be used (in any way or form) by the Proprietor for any other distribution or sales channel or purposes.
14.3 The Proprietor grants to LateRooms and its affiliates and partners a non-exclusive, free of charge, worldwide licence for the term of the Contract to use, reproduce, have reproduced, distribute, communicate, make available in any method and in any and all media including to the public, copy, display, modify and adapt the Accommodation Information and IP in the Accommodation Information, together with the right to sub-license to its and their affiliates, partners, agents and sub-contractors. For the avoidance of doubt LateRooms shall be free to sub-license, make available, disclose and distribute the Accommodation Information (including the relevant IP) to its third party affiliates and partners. In no event shall LateRooms be liable for any acts and omissions of the part of any of its third party affiliates and partners.
14.4 The Proprietor shall indemnify, keep indemnified LateRooms and its affiliates and partners from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect and consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings and legal costs (on a full indemnity basis) and judgements which LateRooms and/or all or any of its affiliates and partners incurs or suffers as a consequence of any claim or allegation from any third party that the Accommodation Information infringes or is likely to infringe a third party’s IP.
14.5 The Proprietor acknowledges that certain text, images, logos, and icons and company names mentioned on the Website will belong to other companies and that LateRooms will only have a limited licence to use them.
14.6 LateRooms grants the Proprietor a non-exclusive, free of charge, worldwide licence for the term of the Contract to use the LateRooms IP in the Extranet for the purpose only of uploading Accommodation Information in accordance with the Contract and the Proprietor may not otherwise use any LateRooms IP in any way, including as part of any of its marketing material (including its website), without the prior written approval of LateRooms.
14.7 The Proprietor will not (in its own name or through a third party) bid for, purchase or register any keywords, search terms or other identifiers that include any LateRooms IP including but not limited to the words "LateRooms", or "Asiarooms" or variations or derivations or mis-spellings thereof (for example "lateroom", "laterooms", "asiaroom" etc.) for use in any search engine, website, portal, advertising service or other search or referral service and the Proprietor agrees to add "Lateroom", "Late Room", "Laterooms.com", "Asiarooms" "Asia Rooms" and "Asiarooms.com" (and any other LateRooms brands as may be notified to the Proprietor from time to time) as negative phrase matches in relation to any and all search campaigns the Proprietor carries out with or on any search engine, website, portal, advertising service or other search or referral service.
14.8 LateRooms is entitled to promote the Accommodation using the Accommodation Information including the Accommodation name(s) in online marketing including email marketing and/or pay-per-click (PPC) advertising. LateRooms runs its marketing campaigns at its own cost and discretion.
15. TERM AND TERMINATION
15.1 The Contract shall continue until terminated by either party giving to the other party notice in writing at any time. The Contract shall terminate immediately on the provision of the written notice.
15.2 LateRooms is keen to maintain a good relationship with the Proprietor, however if for any reason this relationship is not well maintained by the Proprietor, LateRooms has the right to suspend or terminate the Contract immediately on the provision of written notice to the Proprietor.
15.3 Following the expiry or termination of the Contract for any reason:
15.3.1 LateRooms may remove the Accommodation Information from the Website without notice to the Proprietor and the Proprietor will not be able to accept new Bookings through the Website, and the Accommodation will not be visible on the Website;
15.3.2 the Proprietor will, on or before the third Working Day following the expiry or termination of the Contract, update the Non-Invoiced Bookings page on the Extranet in respect of any Non-Invoiced Bookings which are amended or cancelled by a Customer or if a Customer has failed to arrive at the Accommodation to take up their Booking during the previous calendar month;
15.3.3 LateRooms may invoice immediately for all Commission which has accrued to the date of expiry or termination of the Contract and for any anticipated Commission for future Bookings;
15.3.4 Proprietor will honour all future Bookings and all relevant terms of these Conditions shall remain in effect until all such Bookings have been completed;
15.3.5 the Proprietor will immediately return to LateRooms all Confidential Information (including all copies and extracts) and all other property (whether tangible or intangible) of LateRooms in the Proprietor’s possession or control;
15.3.6 the following provisions will continue in force: Conditions 3.2, 3.3, 4, 5, 6.2, 6.3, 7.1, 9.4, 9.8, 9.9, 9.10, 9.11, 9.14, 10, 11, 12, 13, 14.1, 14.2, 15.3, 16, 19.9, 19.11 and 19.12 together with any other provisions which expressly or impliedly continue to have effect after expiry or termination of the Contract or which are required for its interpretation; and
15.3.7 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination of the Contract.
16.1 Subject to Condition 16.4 any notice or other communication given under or in connection with the Contract will be in writing, in the English language, marked for the attention of the specified representative of the party to be given the notice or communication and:
16.1.1 sent (if posted within the United Kingdom) by pre-paid recorded delivery or (if posted outside the United Kingdom) by tracked airmail post to that party’s address;
16.1.2 delivered to or left at (but not, in either case, by post) that party’s address; or
16.1.3 (where the notice or other communication is sent by LateRooms to the Proprietor only) sent by e-mail to the Proprietor’s e-mail address or sent by facsimile to the Proprietor’s facsimile number.
The address for LateRooms is set out on www.laterooms.com. All notices should be marked for the attention of LateRooms’ Managing Director. The Proprietor acknowledges and agrees that any notices to be served on the Proprietor in accordance with the Contract may be delivered or sent to the address, facsimile number, e-mail address and representative provided by the Proprietor during the Registration Process and/or as updated on the Extranet.
16.2 Any notice or communication given in accordance with Condition 16.1 will be deemed to have been served:
16.2.1 if given as set out in Condition 16.1.1, at 9.00am (in the location of the recipient) on the second Working Day after the date of posting (if posted within the United Kingdom) and on the seventh Working Day after the date of posting (if posted outside the United Kingdom);
16.2.2 if given as set out in Condition 16.1.2, at the time the notice or communication is delivered to or left at that party’s address;
16.2.3 if given as set out in Condition 16.1.3, at the time of sending the e-mail (except that if an automatic electronic notification is received by the sender within 24 hours after sending the e-mail informing the sender that the e-mail has not been delivered to the recipient, that e-mail will be deemed not to have been served) or at the time of confirmation of completion of transmission of the facsimile by way of a transmission report;
provided that if a notice or communication is deemed to be served before 9.00am on a Working Day it will be deemed to be served at 9.00am on that Working Day and if it is deemed to be served on a day which is not a Working Day or after 5.00pm on a Working Day it will be deemed to be served at 9.00am on the immediately following Working Day.
16.3 To prove service of a notice or communication it will be sufficient to prove that the provisions of Condition 16.1 were complied with.
16.4 Any document (other than a notice) given, provided, filed or recorded under or in connection with these Conditions will be in English unless this is prohibited by applicable law, in which case such document will be accompanied by an English translation certified as accurate by an officer of the Proprietor and the English language version will prevail in the event and to the extent of any conflict.
16.5 This Condition 16 will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
17.1 LateRooms takes a zero tolerance approach to bribery and corruption. The Proprietor warrants that they do and shall comply with, and their employees, contractors, agents or subsidiaries do and shall comply with all applicable local and international anti-corruption legislation and related procedures and codes from time to time in force, including but not limited to the United States of America Foreign Corrupt Practices Act 1977 and the United Kingdom Bribery Act 2010. The Proprietor shall provide supporting evidence of such compliance as LateRooms shall reasonably request. Violation of this clause by the Proprietor shall be a material breach of these Conditions and may result in the immediate termination of the Contract and/or legal action. This does not affect any of LateRooms’ termination rights.
18.1 In support of LateRooms commitment to sustainable development, outlined in LateRooms’ Sustainable Development Policy, which the Proprietor hereby acknowledges to have read, the Proprietor warrants that they shall use reasonable endeavours to develop its own sustainability strategy and to explore the possibility of achieving a sustainability certification such as Travelife or other Global Sustainable Tourism Council recognized certification and/or an international environmental management standard such as ISO14001.
18.2 The Proprietor warrants that it shall implement preventative measures and procedures to ensure that children are protected from tourism related sexual exploitation and all potential forms of abuse and to ensure that it’s employees under the age of 18 are employed in accordance with all applicable local and international regulations including the UN convention on the Rights of the Child, and shall ensure that the International Labour Organisation conventions on minimum age and child labour are complied with (www.ilo.org/ipec)
19.1 Neither party shall be deemed to be in breach of the Contract or liable for any delay or non-performance or for the consequences of any delay or non-performance of its obligations which is due to events beyond its reasonable control provided the party concerned has acted and continues to act reasonably and prudently to prevent and to minimise the effect of such causes.
19.2 The Proprietor may not assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights or sub-contract any of its obligations under the Contract. LateRooms may assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights and sub-contract any of its obligations under the Contract.
19.3 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract by LateRooms shall not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor shall the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default shall only be valid if it is in writing and signed by LateRooms and only in the circumstances and for the purpose for which it was given and shall not constitute a waiver of any other right, remedy, breach or default.
19.4 Nothing in the Contract or these Conditions and no action taken by the parties in connection with it shall create a partnership or joint venture between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so. Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
19.5 If any provision of the Contract or these Conditions is held by any competent authority or a court of law to be invalid or unenforceable in whole or in part the remaining provisions of the Contract and the provisions of these Conditions shall remain in full force and effect.
19.6 An entity which is not expressly a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract or these Conditions.
19.7 These Conditions and the Contract represent the entire agreement between the parties relating to the subject matter of the Contract and supersede all prior agreements, arrangements and understandings relating to them.
19.8 The Proprietor agrees that it has not entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by LateRooms or any other person) which is not expressly set out in the Contract. The only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract. Nothing in the Contract will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
19.9 The original language of these Conditions and the Contract is English. If these Conditions and/or the Contract are translated into any language other than English, the English language version of these Conditions and/or the Contract will prevail to the extent of any conflict.
19.10 The Contract and these Conditions and any non-contractual obligations arising out of or in connection with it will be governed by English law.
19.11 Subject to Condition 19.12, each party agrees that the courts of England have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
19.12 Parties agree and acknowledge that notwithstanding Condition 19.11, nothing in this Contract shall prevent or limit LateRooms in its right to bring or initiate any action or proceeding or seek interim injunctive relief or (specific) performance before or in any competent courts where the Proprietor is established or registered and for this purpose, the Proprietor waives its right to claim any other jurisdiction to which they might have a right.
Updated January 2014