Services Agreement

RMS: Property Management & Reservation Management System

 

Services Agreement

Background

 
RMS, “The Service Provider” is the provider of the services outlined in your Sales Order (the Services).
 
B The Service Provider has agreed to provide the Services to the Customer in accordance with your Sales Order and this agreement.
 
The Customer by subscribing to the Service has agreed to the following terms and conditions governing the use of the Service including the Acceptable Use Policy in Schedule 2.  The Service Provider reserves the right to update the Acceptable Use Policy at any time, effective upon a notification via the Service or via an email address you have registered with the Service Provider.
 

Agreement

1. Defined terms & interpretation

1.1 Defined terms
 
In this agreement:
 
Account means an account enabling a person to access and use the Service including both Administrator accounts and user accounts.
 
Agreement means a contract between the parties incorporating the Sales Order Form, these Terms and Conditions, RMS Acceptable Use Policy, RMS Support SLA and RMS Privacy Policy and any amendments to that contract from time to time.
 
Authorised User means the employees or contractors as nominated by the Customer to have an Account. 
 
Confidential Information includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Software, that is marked confidential or should have been reasonably understood by the disclosing party to be confidential, but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
 
Consequential loss means any loss or damage which, although in the contemplation of the parties at the time they entered into this Agreement, is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach or other act or omissions (including loss of contract, business opportunity, profit or anticipated profit, or any other loss of a similar nature). 
 
Customer means the named party on the Sales Order and any Related Body Corporate from time to time of the named party and their respective Employees.
 
Customer Data means any data and materials inputted by the Customer into the Software or stored by the Service or generated by the Service as a result of the Customer’s use of the Service.
 
Data Breach means any unauthorised access to, use or disclosure of Personal Information held by or on behalf of the Customer. 
 
Fees means those fees payable to the Service Provider as set out in the Sales Order and pursuant to clause 4 of this agreement.
 
Force Majeure Event means an event or series of related events that is outside the reasonable control of either party and without the fault or negligence of either party and which by the exercise of reasonable diligence either party was unable to prevent (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
 
Go Live Date means the date you request for the Service specified in the Sales Order Form to be available to you and the effective date for invoicing of the Fees.
 
GST means any Goods and Services Tax or Value Added tax imposed under any applicable legislation or regulation
 
Infringement Claim means a Claim which would, if true, constitute a breach of a warranty in clause 3.3(e)  
 
Intellectual Property Right means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
 
Party or parties means a party or parties to this Agreement, its successors and assigns or any person acting on behalf of and with the authority of the parties to this Agreement. 
 
Moral Rights means any moral rights including the rights described in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended and revised from time to time), being “droit moral” or other analogous rights arising under any statute that exists or that may come to exist, anywhere in the world.
 
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
 
(a) whether the information or opinion is true or not; and
 
(b) whether the information or opinion is recorded in a material form or not.
 
Privacy Law means any requirement under law, industry code or policy relating to the handling of Personal Information.
 
Sales Order means any document, including one completed online, that records the Services and the fees purchased by the Customer.
Software means the software available (as may be changed or updated from time to time by The Service Provider via the Service.
 
Support Services means support in relation to the use of, and the identification and resolution of errors in, the Service, but shall not include the provision of training services.
 
Supported Web Browser means the current release from time to time of Google Chrome or any other web browser that the Service Provider agrees in writing shall be supported.
 
Schedules means each of the schedules annexed to this agreement.
 
Services means the software and support services as set out in Sales Order. 
 

2. Commencement

This agreement begins on the Commencement Date.
 

3. The Services

3.1 Terms of Engagement

 
(a) The Customer appoints the Service Provider as its provider of the Services, and the Service Provider accepts the appointment and agrees to provide the Services to the Customer, in accordance with the terms and conditions of this Agreement.
 
(b) The Service Provider hereby grants the Customer a non-transferable, non-exclusive License to use the Service by means of a Supported Web Browser from any computer or mobile device during the Term.
 
(c) The Customer will provide the Service Provider with such information, resources and authorities that the Service Provider reasonably requires to carry out the Services.
 
3.2 Provision of the Services by the Service Provider
 
The Service Provider agrees to provide Services to the Customer as set out in the Sales Order and in accordance with:
 
(a) the terms of this Agreement; and
 
(b) the Service Standards (as set out in Schedule 1);
 
3.3 Service Provider Warranties
 
The Service Provider warrants to the Customer that, in connection with the provision of the Services:
 
(a) It is legally able to enter into this Agreement;
 
(b) It will comply with all applicable laws;
 
(c) It will use reasonable skill and diligence;
 
(d) The use of the Software and any documentation in accordance with this agreement will not result in a breach of any law or mandatory code of conduct; 
 
(e) the provision of the Software and the Services to the Customer and the use of any documentation by the Customer, will not:
 
(i) infringe any person’s rights (including Intellectual Property Rights and Moral Rights); or 
 
(ii) constitute a misuse of any person’s Confidential Information.
 
(f) It will adhere to best practice policies and procedures to prevent data loss, including a system data back-up regime.  
 
3.4 Customer Warranties
 
The Customer warrants to the Service Provider that, in connection with the provision of the Services:
 
(a) It will comply with Schedule 2 (Acceptable Use Policy) and will ensure that all persons using the Service with its authority or by means of an Account will comply with Schedule 2 (Acceptable Use Policy).
 
(b) It is responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required by it to access and use the Services and will ensure that all such equipment and services comply with the technical specifications provided by the Service Provider.
 
(c) It will take all reasonable precautions to ensure the security of access to the Services and must not, under any circumstances, allow any third party or any person other than an Authorised User to access or use the Services for any purpose without the prior written consent of the Service Provider. 
 
(d) It agrees to inform the Service Provider immediately if it becomes aware of any unauthorised use of the Services by any person.
 

4. Fees

4.1 Payment of Fees
 
In return for the provision of the Services by the Service Provider in accordance with clause 4.2 of this agreement, the Customer agrees to pay the Fees as set out in the Sales Order.
 
4.2 Invoicing
 
The Fees shall be invoiced to the Customer in advance for each billing period for the amount and frequency as set out in the Sales Order unless otherwise stated.  The Fees are exclusive of GST, Sales Taxes and similar taxes.  The Service Provider invoices will be generated electronically and transmitted by email.  Payment is by direct debit or credit card authority. The Service Provider may enter into alternative payment conditions by mutual agreement.
 
4.3 New Services Costs
 
If during the term the product mix of the Services is amended by agreement between the parties, and the provision of any agreed new Services to the Customer will incur a third party or additional cost, the Service Provider will provide the Customer with notice if any of these third party or additional costs (and the amount of such costs) are to be passed on to the Customer.
 
4.4 GST
 
(a) Despite the definition of consideration in the GST law, and unless otherwise expressly stated in this Agreement, prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
 
(b) If a party makes a taxable supply under or in connection with this Agreement, the other party must pay to the supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.
 
(c) The supplier must, as a precondition to the payment of GST under clause 4.6(b), give the other party a tax invoice.
 
(d) If an adjustment event arises in connection with a supply made under this Agreement, the supplier must give the other party an adjustment note in accordance with the GST law.
 
(e) If this Agreement requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense.
 
4.5 Withholding tax
 
The Customer shall be responsible if a law requires the Customer to deduct an amount in respect of Taxes from a payment under this Agreement, to:
 
(a) pay a net amount to the Service Provider that the Service Provider would have received if the Tax had not been imposed; and
 
(b) pay an amount equal to the amount deducted to the relevant Government Agency in accordance with the applicable law.
 

5. Availability of the Services

5.1 Enhancements, Updates, New Releases
 
The Service Provide may, in its sole discretion, make enhancements, updates or new releases of the Software available through the Service from time to time in order to enhance or improve the functionality or operation of the service or comply with legislative requirements.
 
5.2 Downtime
 
The Service Provider will use its best endeavours to maintain the reliability and efficiency of the Services subject to unscheduled interruptions to the availability of the Services due to factors beyond the control of the Service Provider - including any actions by the Customer or third parties, including telecommunications providers. 
The Customer will communicate any difficulties encountered with the Services to the Service Provider as soon as is reasonably practicable following detection.
 

6. Breach and termination of this agreement

6.1 How a party breaches this agreement
 
A party breaches this agreement if:
 
(a) the party fails to comply with any term of this agreement (including each of the attached Schedules);
 
(b) the party, being an individual, becomes bankrupt or commits an act of bankruptcy or brings his or her estate within the operation of any law relating to bankruptcy;
 
(c) the party is a corporation and:
 
(i) the corporation is wound up; or
 
(ii) an administrator, a receiver, a manager or an inspector is appointed in respect of the party; or
 
(d) the interest of the party under this agreement is attached to or taken in any legal process.
 
6.2 Termination for cause
 
If a party breaches this agreement under clause 6.1 and, within 20 Business Days after the other party serves a written notice on the breaching party:
 
(a) the breach is not remedied if it is capable of being remedied; or
 
(b) the breaching party does not compensate the other party in accordance with this agreement or to the other party's reasonable satisfaction if the breach is not capable of being remedied,
 
this agreement may be terminated by written notice from the other party to the breaching party at any time up to the breach being remedied or compensation reasonably acceptable to the other party being paid.
 
6.3 The Customer’s right to terminate for convenience
 
If the Customer wishes to terminate this agreement for convenience during the Term, it must serve written notice on the Service Provider stipulating the termination date (Termination for Convenience Date), which must be no earlier than ten (10) Business Days after the notice was served. 
 
On the Termination for Convenience Date: 
 
(a) The Service Provider will cease providing the Services to the Customer on the Termination for Convenience Date (or if otherwise agreed between the parties switch to a monthly use of services);
 
(b) The Service Provider will in good faith endeavour to facilitate a transfer of the Services in the manner chosen by the Customer;
 
(c) The Customer will pay to the Service Provider any outstanding fees for Services provided up to the Termination for Convenience Date;
 
(d) The Customer will pay the remaining Fees (in accordance with the Sales Order) pro-rata until the end of the Term.
 
6.4 The Service Provider’s right to terminate for convenience
 
a) If the Customer has not paid a correctly rendered invoice in respect of a Fee within twenty (20) business days after the due date for payment and has not by that time notified the Service Provider that it disputes that invoice by setting out in writing the reasons why the Customer considers that the invoice is not correctly rendered and identifying any amounts which are in dispute, the Service Provider may issue a notice to the Customer advising that:
 
i) Payment is overdue; and
 
ii) The Service Provider will terminate the Services if payment is not received within twenty (20) business days of the Customer receiving that notice
 
b) If having received a notice under Clause 6.4(a) the Customer fails to pay or dispute the invoice within twenty (20) business days after receipt of that notice. The Service Provider may terminate the applicable part of the Services to which the non-payment relates.
 
6.5 Preservation of rights
 
Termination of this Agreement for any reason does not extinguish or otherwise affect any rights or remedies of either party which arose prior to the time of termination, or the provisions of this Agreement which by their nature survive termination.
 

7. Dispute Resolution

7.1 Dispute Resolution Process
 
If a dispute arises under this agreement, either party may at any time give written notice to the other, requesting that a meeting take place to seek to resolve the dispute.
Nominated representatives of the parties must meet within five (5) Business Days of the notice and endeavour to resolve the dispute in good faith. If such meeting does not take place after five (5) Business Days, or the dispute is not resolved, the matter will be referred to Mediation within five (5) Business Days and a Mediator appointed in accordance with clause 7.2 and 7.3.
 
7.2 Mediation
 
The parties must take the steps set out in this clause 7, before either may commence court proceedings other than an interlocutory application.
 
7.3 Rules
 
If the parties agree to refer a dispute to mediation the mediation will be administered by the Australian Commercial Disputes Centre (“ACDC”) and will be conducted in accordance with the ACDC Mediation Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and the terms of those Guidelines are incorporated into this document.  
 
(a) if the mediation has not commenced within thirty (30) days, or the dispute remains unresolved thirty (30) days after the appointment of the Mediator, either party may pursue its rights at law;
 
(b) During a dispute, each party must continue to perform its obligations under this Agreement.
 
(c) This clause 7 does not restrict or limit the right of either party to terminate this Agreement where this Agreement provides such right.
 
7.4 Costs
 
Each party must bear its own costs in connection with the mediation, and must share the fees and expenses of the Mediator and mediation process equally, including any fees and expenses associated with the appointment of the Mediator.
 

8. Indemnity

Each Party (the “Indemnifying Party”) hereby agrees to indemnify the other party against all claims, actions, demands, costs, damage and loss arising from a third-party claim arising in connection with this Agreement from the Indemnifying Party’s negligence or willful wrongful act or omission or breach of this Agreement.  
 

9. Limitation of Liability

(a) Subject to clause 9(e)  (No limitation):

 
(b) neither party will be liable to the other party under or in respect of this Agreement for any Consequential Loss arising from negligence or breach of contract or events beyond their control except for the proportion of liability that either party has at law in the absence of this Agreement; 
 
(c) the aggregate liability of the Customer to The Service Provider under or in respect of this Agreement whether in contract, tort (including negligence), statute or any other cause of action (other than the obligation to pay Fees) is limited to the fees due for the balance of the subscription period invoiced by the Service Provider; and 
 
(d) the aggregate liability of Service Provider to the Customer under or in respect of this Agreement whether in contract, tort (including negligence), statute or any other cause of action is limited to fees paid or payable for the previous three (3) months.
 
(e) Nothing in this Agreement operates to limit or exclude:
 
(i) liability that cannot be limited or excluded by law;; and
 
(ii) Service Provider’s liability resulting from its fraudulent or unlawful act or omission.
 
(f) Any amount claimed pursuant to the indemnity in clause 8 of this Agreement will be reduced proportionally to the extent any loss, damage, liability, claim or expense is directly caused, or contributed to, by the negligence of the Party in breach.
 
 

10. Force Majeure

Neither party will be liable to the other for delay or failure to perform its obligations under this Agreement if such delay or failure is caused by a Force Majeure Event. 
 

11. Notices

11.1 Requirement for writing and signature
 
A notice, consent, approval request or demand made or required by this Agreement must be
 
(a) in writing; and
 
(b) signed by:
 
(i) the party giving the notice or that party's solicitor; or
 
(ii) any other person nominated by the party giving the notice as being able to sign notices.
 
11.2 Serving notices
 
(a) The Service Provider may only serve a notice on the Customer by:
 
(i) delivering it by hand; or
 
(ii) Sending it by registered or pre-paid post, to the address in the Information table (as updated from time to time by Customer) or to the Customer’s registered address
 
(iii) Sending by email to the email address in the information table (as updated from time to time by Customer)
 
(b) The Customer may only serve a notice on the Service Provider by:
 
(i) delivering it by hand; or
 
(ii) sending it by registered post or prepaid to the address in the Information table (as updated from time to time by the Service Provider) or to the Service Provider registered address.  
 
(iii) Sending by email to the email address in the information table (as updated from time to time by Service Provider)
 
(c) The Service Provider and the Customer may only update an address for the service of notices under this agreement by notice to the other parties to this agreement.
 
11.3 When effective
 
A notice or communication will take effect:
 
(a) if given personally - on the day the communication is given provided the notice or communication is given by 4.00pm on that day or, if given after 4.00pm, the notice or communication will take effect from the next Business Day; or
 
(b) if posted – four (4) Business Days after the notice or communication is sent.
 
(c) If emailed – at the time of transmission as shown in the email trace log.
 

12. General Provisions

12.1 Intellectual Property
 
(a) The Service Provider warrants that it owns all applicable rights, title and interest in and to all Intellectual Property Rights embodied in or associated with the Services (including but not limited to any images, photographs, animations, video, audio, music and text incorporated into the Services and any accompanying published materials) (“Materials”) or has procured and grants to the Customer an irrevocable and assignable royalty-free licence to use the Materials for the purposes of the Customer’s use of the Services. 
 
(b) The Service Provider indemnifies the Customer against any Materials provided by the Service Provider infringing on any patent, copyright, registered design, trademark or name, or other protected right.
 
(c) The Customer agrees and acknowledges that nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Service Provider to the Customer.
 
(d) The Service Provider agrees and acknowledges that the Customer owns the Customer Data and all Intellectual Property Rights in the Customer Data
 
12.2 Acknowledgments
 
a) The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Service Provider gives no warranty or representation that the Service will be wholly free from defects, errors and bugs. Among other things, the operation and availability of the systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software. The Service Provider or its suppliers are not in any way responsible for any such interference or prevention of your access or use of the Services.
 
b) The Customer acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this agreement, The Service Provider will take reasonable steps to ensure that the Services will be secure.
 
c) The Customer acknowledges that it is the Customer’s sole responsibility to determine that the Software and Services meets the needs of its business.
 
d) The Customer acknowledges the Software and Services do not of themselves constitute, and are no substitute for, the Customer’s own identification of, and compliance with, applicable laws and regulations in your jurisdiction.
 
e) The Service Provider does not provide any warranty regarding the ability of the Software or the Service to ensure your compliance with all applicable laws and regulations in your jurisdiction
 
f) You acknowledge that the Service Provider does not purport to provide any legal, taxation or accountancy advice by providing the Services under this Agreement.  
 
12.3 Interpretation
 
In this agreement, unless the contrary intention appears:
 
(a) headings are for ease of reference and do not affect the meaning of this agreement;
 
(b) the singular includes the plural and vice versa and a gender includes another gender;
 
(c) other grammatical forms of defined words have corresponding meanings;
 
(d) a reference to:
 
(i) the Information table; or
 
(ii) a clause, paragraph, schedule, or annexure,
 
is to:
 
(iii) the Information table, in;
 
(iv) a clause or paragraph of; or
 
(v) a schedule or annexure to,
 
this agreement;
 
(e) a reference to this agreement includes the Information table and any other schedule or annexure;
 
(f) a reference to this agreement or any other document includes a reference to it as novated, altered or replaced;
 
(g) a reference to a party includes a reference to that party's executors, administrators, successors and permitted assigns;
 
(h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
 
(i) an agreement, representation or warranty in favour of two or more persons is in favour of them jointly and severally;
 
(j) an agreement, representation or warranty made by two or more persons binds them jointly and severally; 
 
(k) including (in any form) or such as when introducing a list of items does not limit the meaning of the word to which the list relates to those items or to items of a similar kind; and
 
(l) no provision of this agreement will be will be construed adversely to a party because that party was responsible for the preparation of this Agreement or that provision
 
 
12.4 Confidentiality
 
The parties to this agreement must keep the terms of this agreement confidential and must ensure that their officers and employees keep the terms of this agreement confidential, save for any necessary disclosure to their respective legal and financial advisers and any disclosure required for a purpose related to this agreement or the performance of the rights or obligations of any party to it, or by law.
 
12.5 Privacy
 
If, as a result of this agreement, the Service Provider is able to access any Personal Information about an individual held by or on behalf of the Customer, then the Service Provider:
 
a) must comply with all applicable Privacy Laws and such other data protection laws as may be in force from time to time which regulate the handling of Personal Information, as if it were regulated by these laws;
 
b) must comply with any privacy codes, policies, procedures and guidelines established and advised by Customer to be applicable to the Service Provider (copies available on request) or issued from time to time by the relevant Privacy Commissioner relating to the handling of Personal Information;
 
c) must comply with any direction of the Customer, the relevant Privacy Commissioner (as the case may be) that is consistent with the laws, codes and policies referred to in paragraphs (a) and (b) above;
 
d) must promptly notify the Customer of any request made by an individual for access to their Personal Information;
 
e) must comply with any reasonable direction of the Customer, the relevant Privacy Commissioner (as the case may be) to provide the Customer, the Privacy Commissioner access to the Service Provider’s premises, personnel, records or information for the purpose of the customer, the Privacy Commissioner monitoring the Service Provider’s compliance with this clause; 
 
f) must ensure that any record containing Personal Information provided to the Service Provider by the Customer or any other person pursuant to this Agreement is, at the expiration or earlier termination of this agreement, at the Customer’s election either returned to the Customer or deleted or destroyed (but the service Provider may retain any such record if it is required to do so by law).
 
g) If the Service Provider becomes aware of any act or practice which is an actual or potential breach of its obligations under clause 25 (Privacy), the Privacy Laws, or a Data Breach, or any complaint in relation to Personal Information, the Service Provider must:
 
a. notify the Customer immediately; and
 
b. comply with any reasonable direction or request for information from, and provide all reasonable assistance to, the Customer or relevant Privacy Commissioner with respect to:
 
(i) investigating that act or practice; 
 
(ii) remedying that breach or potential breach; 
 
(iii) developing and implementing any rectification and preventative measures required by the Customer or the relevant Privacy Commissioner; or 
 
(iv) resolving that complaint.
 
12.6 Relationship of parties
 
The parties agree that the relationship between the parties is one of independent contractor.  Nothing in this Agreement will be interpreted as creating the relationship of employer and employee, master and servant or principal and agent or a partnership between the parties.
 
12.7 Entire Agreement
 
This agreement, including each of the attached Schedules and their contents, and the Items and Background, constitutes the entire agreement between the parties in respect of its subject matter, and supersedes all prior agreements representations negotiations and correspondence.
 
12.8 Legal Costs
 
Each party will bear their own legal costs and expenses in connection with the preparation, negotiation, execution and completion of this agreement.
 
12.9 Severability
 
If any provision of this agreement is held to be invalid or unenforceable in any way, the remaining provisions will not be affected and this agreement will be interpreted so as to most nearly give effect to the intentions of the parties as it was originally signed.
 
12.10 No waiver
 
It is not a waiver of a breach of this agreement or of a party's rights under this agreement if that party:
 
(a) does not exercise or partly exercises or delays exercising a right;
 
(b) gives a concession to the other party or accepts a late payment; or
 
(c) attempts to mitigate its loss.
 
12.11 Modification
 
The provisions of this agreement may only be changed by written agreement between the parties.
 
12.12 Governing law
 
This agreement will be governed by the laws of Victoria, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts in that jurisdiction.
 
12.13 Counterparts
 
This agreement may be entered into by the exchange of executed counterparts, which together comprise a fully executed agreement.
 

Schedule 1 – The Service Standards

Support Response Times

Coverage Window: The Service Provider’s Coverage Window is 7.00AM to 11.00PM – during this time and outside of this time the Service Provider will respond to issues submitted to the RMS Help Desk based on the Priority definitions and Response Times defined below.   

RMS SAS TC Schedule 1 The Service Standards

Schedule 1 – The Service Standards cont.

Uptime Service level requirements

The Service Provider undertakes that the hosted environment and network will be available to be accessed by the Customer at least 99.95% (Uptime) of each full calendar month during the Service Period.
 
A. Availability Measurement
 
System Availability shall be measured by the Service Provider in the following manner: 
 
System Availability will be calculated as “Total Actual System Availability” (up time) divided by “Total Possible System Availability”. 
 
Example:  995 hours Actual Availability / 1000 Total Availability = 0.995 or 99.5% Actual Availability.
 
B. Minimum Total System Availability
Minimum total System Availability will be 99.5% (3.65 hours per month or 43.8 hours per year) excluding planned outage windows. 
 
The following will not factor into calculation of System Availability: 
 
i. Scheduled Downtime (Service Provider will issue a notice advising of such Scheduled Downtime).
 
ii. The Customer’s failure to perform its obligations under the Agreement that affect the performance of the Service Provider’s System.
 
iii. Factors outside the Service Provider’s control including a Force Majeure Event.
 
iv. the performance of a third party (including, but not limited to telecommunications providers or internet providers).
 
v. Actions by the Customer or the Customers equipment/technology or third party equipment, software or other.
 

Definitions

For purposes of this Service Level Agreement, the following definitions shall apply.
 
Availability The percentage of time, during a given period, in which the Service Provider System is substantially available for the Customer’s Productive Use.
 
Downtime The time when the Service Provider’s System or one or more of the specified Service Provider’s System components is not available for The Customer’s Productive Use.
 
Productive Use The Customer’s ability to access and use the functionality of the System Provider’s System, including, but not limited to, the ability to manage rates and inventory feature, receive reservations via booking engine, and use other portions of the RMS System specifically contracted for use by the Customer, including but not limited to all functions of the Property Management System, Booking Engine, and interfaces with the Distribution Channels.  
 
Scheduled Downtime Scheduled Maintenance will be undertaken at regular intervals by the Service Provider which shall have no effect on the system. 
Scheduled maintenance that will take parts of the system into downtime will be undertaken by the Service Provider at approximately 3 month intervals.  The Customer’s shall be notified at least 72 hours in advance of such scheduled maintenance and the expected duration to be conducted between the hours of 2AM and 4AM (Customer’s local time).  The system will be mostly available during this time and the status page on the Service Provider’s website shall advise the Customer of any parts of the system that are offline.  The status page shall be updated again once those parts of the system are returned online.
 
Status Page located at:     https://help.rmscloud.com/system-status
 
Unscheduled Downtime System Downtime that is not Scheduled Downtime.  During unscheduled maintenance a notice shall be placed on the status page notifying properties that there is an unscheduled outage and the expected duration.  The status page shall be updated as further information becomes available and again once the outage is corrected.
 
Status Page located at:     https://help.rmscloud.com/system-status
 

Schedule 2 – Acceptable Use Policy

Schedule 1 (Acceptable Use Policy)

 
1. Introduction
 
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
 
(a) the use of the Service(s) made available by RMS (Aust) Pty Ltd to you as a service via the internet including offline components, if any (the "Service"); and
 
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Service including its email and text messaging communication tools, correspondence files, stored photos, logos etc ("Content").
 
1.2 References in this Policy to "you" are to any customer for the Service and any individual user of the Service and "your" should be construed accordingly; and references in this Policy to "us" are to RMS (Aust) Pty Ltd  (and "we" and "our" should be construed accordingly).
 
1.3 By using the Service, you agree to the rules set out in this Policy.
 
1.4 We will ask for your express agreement to the terms of this Policy before you submit any Content or otherwise use the Service.
 

2. General usage rules

2.1 You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service.
 
2.2 You must not use the Service:
 
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
 
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
 
2.3 You must not:
 
(a) attempt to undermine the security or integrity of RMS 's computing systems or networks or, where the Software is hosted by a third party, that third party's computing systems and networks.
 
(b) use, or misuse, the Software in any way which may impair the functionality of the Software or Website, or impair the ability of any other user to use the Software or Website.
 
(c) attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the Software is hosted.
 
(e) attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the Software is hosted.
 
(f) modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software or the Website except as is strictly necessary to use either of them for normal operation.
 
2.4 You must ensure that all Content complies with the provisions of this Policy.
 

3. Unlawful Content

 
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
 
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
 
(a) be libellous or maliciously false;
 
(b) be obscene or indecent;
 
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
 
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
 
(e) constitute negligent advice or contain any negligent statement;
 
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
 
(g) be in contempt of any court, or in breach of any court order;
 
(h) constitute a breach of racial or religious hatred or discrimination legislation;
 
(i) be blasphemous;
 
(j) constitute a breach of official secrets legislation; or
 
(k) constitute a breach of any contractual obligation owed to any person.
 
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
 

4. Graphic material

Content must be appropriate for all persons who have access to or are likely to access the Content in question.
 

5. Factual accuracy

5.1 Content must not be untrue, false, inaccurate or misleading.
 
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
 

6. Negligent advice

6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Service to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.

 
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
 

7. Etiquette

7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
 
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
 
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
 
7.4 You must not use the Service to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
 
7.5 You must not use the Service for the purpose of deliberately upsetting or offending others.
 
7.6 You must not unnecessarily flood the Service with material relating to a particular subject or subject area, whether alone or in conjunction with others.
 

8. Marketing and spam

8.1 You must not without our written permission use the Service for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering unrelated to the use of the Software and the Service.
 
8.2 Content must not constitute or contain spam, and you must not use the Service to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
 

9. Gambling

You must not use the Service for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

10. Monitoring

You acknowledge that we do not actively monitor the Content or the use of the Service.
 

11. Harmful software

11.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Service, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
 
11.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Service, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
 

RMS Online Terms & Conditions 

The following terms and conditions shall apply to customers/properties (“Accommodation Provider”) that are processing online bookings through the RMS online module.
 

  1. RMS Online distributes the Accommodation Provider accommodation rate, inventory and availability information supplied by each Accommodation Provider to online sales platforms chosen by the Accommodation provider. 

    RMS Online acts solely as an intermediary between the Accommodation Provider and the online sales platforms.     

    RMS Online receives booking information from those online distribution platforms. 

    RMS Online does not accept any liability for unavailability of rooms caused by the Accommodation Provider over-selling their own room inventory. 
     
  2. When rendering our services, the information that RMS Online discloses to the online sales platforms is the sole responsibility of the Accommodation Provider.  

    Although RMS Online uses reasonable skill and care in performing its services it does not verify if, and cannot guarantee that, all information is accurate, complete or correct. 

    Each Accommodation provider remains responsible at all times for the accuracy, completeness and correctness of the (descriptive) information (including the rates and availability).
     
  3. Cancellation and no show penalties and any other fees relating to changes to bookings received are the responsibility of the Accommodation Provider.
     
  4. To the extent permitted by law, neither RMS Online or any of our officers, directors, employees, representatives, subsidiaries, affiliated partners, licensee, agents shall be liable for any: 

    (i) any punitive, special, indirect or consequential loss or damages, any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim, 

    (ii) any inaccuracy relating to the (descriptive) information (including rates, availability and ratings) of the accommodation as provided by the Accommodation Provider, 

    (iii) the services rendered or the products offered by the Accommodation Provider or other business partners,

    (iv) any (direct, indirect, consequential or punitive) damages, losses or costs suffered, incurred or paid by the Accommodation Provider, pursuant to, arising out of or in connection with the use, inability to use or delay of our services, or 

    any (personal) injury, death, property damage, or other (direct, indirect, special, consequential or punitive) damages, losses or costs suffered, incurred or paid by the Accommodation Provider, whether due to (legal) acts, errors, breaches, (gross) negligence, willful misconduct, omissions, non-performance, misrepresentations, tort or strict liability by or (wholly or partly) attributable to the accommodation or any of our other business partners (including any of their employees, directors, officers, agents, representatives or affiliated companies) whose products or service are (directly or indirectly) made available, offered or promoted by the Accommodation Provider, including any (partial) cancellation, overbooking, strike, force majeure or any other event beyond our control.
     
  5. Bookings received through RMS Online from guests are received on behalf of the Accommodation Provider. 

    The Accommodation Provider has sole responsibility for delivery of the services being booked by the guest and the Accommodation Provider fully indemnifies RMS Online for default by the Accommodation Provider

RMS Privacy Policy

The RMS Privacy Policy was updated on 14 May 2018.

RMS is committed to protecting and safeguarding any personal data you give us. We act in the best interests of our clients and their customers’ interest and we are transparent about our processing of your personal data.

RMS provides a subscription cloud-based Property Management System to its clients for managing accommodation bookings, front desk operations, guest billing, housekeeping, maintenance management, sales and marketing, events management, point of sale, door locking and other in-room and property access and control systems. RMS provides its clients with an Online Booking Engine to enable their customers to make bookings at their property and a Channel Management system to allow our clients to receive bookings from a large range of online travel agents and other booking services. RMS also provides its clients with integrations to other third-party services such as client loyalty programs, rate management services and business intelligence tools.

When accessing this website or providing information, you agree to our privacy practices as set out in this Privacy Policy. RMS may change this policy from time to time. Please visit this page regularly to keep up to date with our practices. If we make changes to the Privacy Policy which will have an impact on you (for example, if we intend to process your personal data for other purposes than communicated in the past in this Privacy Policy), we will notify you of these changes before these new activities begin.

This document describes how we use and process your personal data on all of the services that we provide to our clients and which our clients use when providing their services to their customers. This one Privacy Policy applies to any kind of information we collect through this website, the services we provide, or other means connected to these services (such as contacting our customer service team via telephone, the website or by email).

What kind of personal data does RMS collect and why?

RMS Clients

When our clients subscribe to our services, your personal information is collected directly from you during the sales process.  Collection of personal information can occur through other interactions including:

  • Conversations with our team members;
  • When you complete registrations, requests or application for our services;
  • When you communicate with us directly (by telephone, email or any means); and
  • When we interact with you during trade shows, masterclasses, webinars, training and special events.

RMS collects and processes personal information from its clients that is legally necessary for the performance of a contract. This includes for the purpose of being able to contact you, interact with you and verify you on any matters relating to your contract with RMS, including any need to use your information to handle and resolve legal disputes, for regulatory investigations and compliance, to enforce the RMS terms of use, the provision of customer support services, customer training, to create orders, transaction records, billing and payment and any other matters incidental to the performance of our services.

Personal information is any information that can be used to uniquely identify an individual. We may collect the following personal information from our clients: 

  • Name;
  • Business address;
  • Email address(es);
  • Telephone number(s); and
  • Payment information.

Other information which may be collected may include:

  • Your marketing preferences, including the type of marketing materials you wish to receive and the method of delivery (email, SMS), and
  • Information you provide to us via our customer service team, website, and application forms. 

Where needed under applicable law, RMS will obtain your consent prior to processing your personal data for direct marketing purposes. 

RMS will hold the personal information of our clients for a long as is necessary for the provision of the services that you subscribe for, to comply with all legal, taxation and other regularity requirements and for sales and marketing purposes both during and after the period of your subscription.

Customers of RMS Clients

RMS Clients will collect personal information of their customers using the RMS services.

RMS acts as the data processor regarding the services provided by our clients. Our clients therefore have the primary responsibility for the protection of your personal information. 

Our client’s website may use the RMS booking engine including any online booking pages provided by RMS to collect and process personal information to provide their services. Our clients may also use the RMS channel management service to receive and process personal information collected by online travel agents and other booking services.

Therefore, RMS will process on behalf of our clients, personal information of their customers including but not limited to:

  • Your name;
  • Preferred contact details, including email or social media address, home address, telephone number, and date of birth,;
  • The names of anybody travelling with you;
  • Your payment information; and
  • Any other information which you decide for yourself to submit including special requests or preferences.

Our clients’ collect and processes personal information from its customers for the performance of a contract, specifically to administer their online bookings from customers. If the required personal information is not provided, our clients cannot finalize the booking and ensure your stay with them is as enjoyable as possible. Our client’s may also use your personal information to provide customer service by informing the customer of any changes to the booking, latest deals and special offers and other products or services which they believe may be of interest to you. An RMS client may also use your personal information for the purpose of sending you a survey or for future marketing and sales activities. If you would like to find out the specific purposes that our client has collected your personal information, please refer to the privacy policy of the client or contact the property direct.

RMS also may from time to time have a need to access your personal information that has been collected and processed by our client. This will only ever occur when we are providing customer support services to our client and not for any other purpose.

Our clients may hold your personal information for as long as is reasonably necessary for the performance of the booking and for such time thereafter as they have a legal basis. In regard to any booking you have made with a client of RMS, you should consult the privacy policy of our client for the specifics of their data retention policy.

Does RMS share your data with third parties? 

RMS itself does not disclose personal information for any purpose other than our employees, contractors or service providers needing to contact our clients, and then only to the extent reasonably necessary to fulfill our obligations to our client, or to comply with government or other regulatory requirement. 

In order to support the use of the RMS services, your details may be shared with members of the RMS corporate family which act as service providers for RMS, including in relation to customer support services.

RMS may disclose personal information to third parties to comply with any court order or other legal obligation or when data is requested by government or law enforcement authorities.

RMS may use service providers to process your personal data on our behalf. This processing is for several purposes, including sending out marketing material to the email address you provided when subscribing to RMS. Third party service providers shall either be bound by:

  • Our data privacy policy or have similar obligations in relation to the storage and processing of personal information, or
  • Confidentiality clauses and are not allowed to use your personal data for other purposes than instructed by RMS.

Customer Lists:

RMS does not disclose the personal information of our clients’ customers to any third parties. 

RMS does not sell or rent personal information. 

Screenshots: 

Screen shots used in demonstrations and examples in manuals, advertising or on our website do not include the details of any real person.

Customer References:

RMS will respond to requests from potential clients by providing names of selected clients as examples of where its products are used.

If referees are requested, RMS will contact existing customers to obtain agreement before releasing contact details.

Third Party Integrations:

Different parties integrated into the RMS services in a number of ways and for various reasons. RMS acts as the data processor for our clients and any personal information disclosed by and through these integrations is done so at the direction of and is the responsibility of our client. 

How does RMS treat personal data of children?

RMS is a service provider and data processer to our clients. RMS services are not designed or directed at children. Our client’s will set their own policy for who can make a booking on the client’s website using the RMS online booking engine. An RMS client may, as part of an online booking, collect and process the information of children only as provided by the parent or guardian or with their consent. If an RMS client becomes aware that they processed information of a child without the valid consent of a parent or guardian, they may reserve the right to delete it.

 

International transfers of personal data

RMS may transfer your personal information to our group companies or service providers based outside of the European Economic Area (“EEA”) for the purposes described in this policy.  Personal information transferred outside the EEA will be subject to appropriate safeguards set out in the law including the use of model contract terms approved by regulators.

RMS may process and store data in the cloud using services from IBM Cloud, Microsoft Azure, and Amazon Web Services. You acknowledge that these cloud service providers may process and store personal information in a jurisdiction that may have different privacy and data security protections from those of your own jurisdiction. 

 

RMS Marketing

RMS will from time to time market to its clients. You have the right to ask us to stop processing your personal information for marketing purposes. You can unsubscribe from emails by clicking the unsubscribe link on the footer of the email communication you have received.  You can also exercise the right at any time by contacting us on the details set out in the “Contact Us” section of our website to amend your marketing communication preferences.

 

Right to review personal information

RMS Clients

RMS clients have the right to review the personal information we hold about you. You can request an overview of your personal data by emailing us to the email address stated below.  

Before providing personal information to you or another person on your behalf, we may ask for proof of identity.

If any of the personal information we hold about you is inaccurate or out of date, you may ask us to correct it.

We rely on you to ensure that your personal data is complete, accurate and current. Please do inform us promptly of any changes to or inaccuracies of to your personal data. 

You have the right to object to us processing your personal information or to delete your personal information or have its processing restricted in certain circumstances.

Customers of RMS Clients

 The rights of customers of RMS Client’s to review the personal information our client holds about you, to amend the personal information, to restrict the processing of the personal information and to delete your personal information is governed by regulations in place in your jurisdiction and the privacy policy of the RMS Client. 

Please contact the property direct and/or the relevant regulator if you have any queries in this regard.

RMS as the service provider and data processor has provided functionality to our clients to review customer personal information, restrict certain processing and to delete the personal information.  The use of that functionality is the responsibility of the RMS client who is the controller of that data.

RMS is also able to provide our clients with functionality where you may view the personal information held about you and make corrections to your personal information yourself.

Where your personal information is processed by an RMS client on the basis of your consent, you may be entitled to withdraw that consent at any time subject to applicable law. Moreover, where an RMS client processes your personal data based on legitimate interest or the public interest, you may, subject to applicable law have the right to object at any time to that use of your personal data when no opt-out mechanism is available to you. 

Please contact the property direct and/or the relevant regulator if you have any queries in this regard.

 

Security

RMS has implemented reasonable measures designed to secure personal information from accidental loss from unauthorized access, use, alteration and disclosure. RMS encrypts data in transmission and at rest, and all access to computer hardware containing personal information is password protected. Staff access to personal information is given on a need to know basis only.

RMS Clients have access to their customers’ personal information. RMS Clients are the data controllers for their data.  RMS is not responsible for the security standards of RMS Client’s. RMS services provide the client with functionality to restrict access to data. 

If you have any questions relating to security at an RMS client please contact the property direct.

 

Internet Transmission

No data transmission over the Internet can be guaranteed to be secure. While RMS will endeavour to protect customer information, it cannot guarantee the security of any information any person may transmit when they access its website.

Even though RMS encrypts data transmitted over the Internet, it still cannot guarantee data transmitted cannot be unencrypted by persons with nefarious intentions. Nonetheless, the likelihood of this occurring is extremely low.

 

Remote Access

Remote access to customers’ databases is needed to provide an efficient and rapid response to requests for assistance.

RMS staff will only connect to a customer’s data with the full knowledge of the customer and will advise when connection is terminated.

 

Cookies

Cookies may be placed on your computer or internet-enabled device whenever you visit RMS online booking pages. This allows the site to remember your computer or device and serves a number of purposes. Although most browsers automatically accept cookies, you can choose whether or not to accept cookies via your browser’s settings (often found in your browser’s Tools or Preferences menu). 

You may also delete cookies from your device at any time. However, please be aware that if you do not accept cookies, you may not be able to fully experience some of the features. Cookies by themselves do not tell us your email address or otherwise identify you personally.

Cookies are only used by online booking pages provided by RMS to improve the online booking process. By remembering the preferences of visitors to the online booking pages RMS streamline the reservation process.

Cookies are used for no other process and the information pertaining to them are not shared with any other person or entity.

 

Complaints

If you have any questions regarding this policy, or if you think your privacy has been breached, please email us at [email protected].

Our team members will acknowledge receipt of your complaint within 72 hours, and will normally respond to your request within 10 business days. If your complaint is complicated or requires further investigation our response may take additional time to finalise.

We will respond to you by email or telephone.

 

RMS Member Companies

This Privacy Policy applies to the following: 

  • RMS Global Pty Ltd, a company registered in Australia.
  • RMS (Aust) Pty Ltd, a company registered in Australia.
  • RMS Europe Ltd, a company registered in the United Kingdom.
  • RMS North America LLC, a company registered in Delaware, United States.
  • RMS Hospitality Pte Ltd, a company registered in Singapore.
  • RMSCloud Software Private Ltd, a company registered in India.
  • RMS International FZE, a company registered in United Arab Emirates