Terms and Conditions
Statement
Vestibule Marketing Ltd. (herein referred to as “Vestibule Marketing,”, “Us”, “We”, “Our”) agrees to provide and the Customer (herein referred to as “Customer”, “You” or "Your) agrees to accept the Vestibule Marketing service as specified in this Agreement and in accordance with and subject to this Agreement. In combination, Vestibule Marketing and the Customer may be called the “Parties” or a “Party”.
Definitions
In this Agreement the following words and terms shall have the following meanings:
“Commencement Date” means the date of execution of this Agreement. This is the date of the signature of the customer under Signatures.
“Customer” means an individual, serviced apartment provider, aparthotel, vacation rental provider, resort, hotel, Bed and Breakfast, or other organisation purchasing the elina Property Management system or related software for management of their hospitality offering
“Customer Data” means all data processed by elina or provided to Vestibule Marketing for processing or otherwise processed as part of the Services
“Customer Equipment” means the hardware and software which the Customer is required to have in order to use and enable the Services to be provided in accordance with this Agreement.
“Documentation” means all documentation provided by Vestibule Marketing to the Customer to assist in the provision of the Utilisation, including but not limited to the description of the technical integration between elina components and the Customer Equipment
“Downtime” means a period during which there is total loss of the Utilisation due to faults on the host server
“elina” is the brand name and the product name of the elina Property Management System. elina is internationally trademarked and owned by Vestibule Marketing Ltd.
“elina Concierge” is the name of the elina system support team, the first point of contact of all Customers with questions pertaining to their elina system.
“Fees” means the fees payable as detailed in The Schedules. Fees are regulated by clause 10.
“The Schedules” means the agreed details in Schedule 1, Schedule 2, Schedule 3 and Schedule 4 of this Agreement and underpin all other terms of this Agreement, from the Commencement Date.
“Termination Period” is defined as the number of days between an request for termination and when such termination comes into effect. During the termination period, elina Fees and Utilisation will continue according to this Agreement. Terms and termination are detailed in clause 3.
“System Management Regulations” means regulations introduced by Vestibule Marketing from time to time for the better management of the Utilisation and will form part of the Documentation.
“User” means an individual employee, contractor, or guest/customer of the Customer who uses the Utilisation.
“Utilisation” means the provision of software and support, including but not limited to elina Property Management System, details of which are defined in this Agreement.
Terms
1. Scope of this Agreement
1.1 elina Property Management System is wholly owned by Vestibule Marketing Ltd., a limited liability company. We do not control the products and/or the Utilisation being sold or bought via the elina system, nor any content provided via elina’s host server or the Customer’s website.
1.2 This Agreement regulates the provision of the Utilisation and the rights and obligations of both Parties.
2. Software as a Service
2.1 Our business is the provision of Elina and the support thereof. The data, transactions or actions you perform within elina, or other provided software from Vestibule Marketing, are yours with all the rights and obligations pertaining to any such actions.
2.2 Vestibule Marketing is not responsible for any Customer losses associated with Downtime caused by Elina’s host server.
3. Terms and Termination
3.1 The terms of this Agreement shall commence on the Commencement Date and shall run in perpetuity unless terminated by either Party in accordance with this Agreement, see clause 10.
3.2 This Agreement may only be terminated in accordance with the provisions of this Agreement.
3.3 Either Party may terminate this Agreement by serving a written Notice to the other which will then terminate the Agreement after 90 days.
3.4 Either Party may terminate the Agreement with immediate effect by written Notice to the other is if the other Party has a receiver, examiner or liquidator appointed over any of its assets or has a bankruptcy petition presented against it or becomes insolvent or makes any voluntary arrangement with its creditors, or becomes subject to an administration order or goes into liquidation or otherwise ceases trading, or is found to be in violation of national or international law.
3.5 Following termination of this Agreement the Customer shall immediately:
a) Cease to use or hold itself out as using elina as a sales or marketing channel or for operational or accounting purposes; and
b) return to Vestibule Marketing any promotional material, Documentation, other documents supplied by Vestibule Marketing or created by the Customer and any electronic equipment if applicable.
3.6 Following termination of this Agreement the Parties agree to cease displaying any promotional material, logos or trademarks relating to the other Party, except where other agreement has been made.
3.7 Both Parties acknowledge and agree that they will remain liable for any fees due to the other Party prior to and until termination. We reserve the right to deduct such fees from any direct debits or currently held credit/debit cards irrespective of termination of this Agreement. This Agreement will be considered terminated when all your liabilities to us under this Agreement have been paid.
3.8 Termination of this Agreement shall not affect any accrued rights or liabilities occurring for the benefit of or to the burden of either Party pursuant to this Agreement.
4. Delivery - Technical Integrations
4.1 elina is provided as a hosted service. As such, there will be no physical delivery of products or services, but the Utilisation will be provided online via a browser on Customer Equipment.
4.2 With the initial delivery of elina, if Vestibule Marketing provides basic staff and managerial training, the fee for such training is outlined in The Schedules. Ongoing guidance and support of elina is provided via phone or e-mail with the elina Concierge.
4.3 Since Elina is delivered as a hosted service, there is no need for technical integration between Elina and any other system for basic operations. In an effort to help the Customer, Vestibule Marketing will assist in the integration of elina Property Management System with other business critical applications that the Customer requests. Vestibule Marketing can only offer integration with other systems where this is technically possible and the integration may well require the cooperation of the providers of such systems. Fees are documented in The Schedules.
4.4 As part of the Utilisation, manuals, screencasts and explanatory materials are provided within the User interface of elina to help Users understand how to work with screens and functions. These manuals, however, should not be taken as definitive direction on operational procedures for an individual hospitality venue, but should rather be used as guides in learning to work with elina.
4.5 Customer Equipment is the sole responsibility of the Customer. Vestibule Marketing will not be responsible for any influence or faults to the Utilisation caused by Customer Equipment. Any Customer Equipment support provided by Vestibule Marketing shall not be deemed an assumption of responsibility.
5. Intellectual Property Ownership
All rights, including but not limited to ownership and intellectual property rights relating to elina Property Management System regardless of their nature, including but not limited to trademarks, trade name, designs, copyright existing in but not limited to software, data, know-how and Documentation are owned by Vestibule Marketing. Nothing in this Agreement shall be interpreted or construed to mean that the ownership in such intellectual property rights is transferred save for the right to use Elina on the terms and conditions set forth in this Agreement.
5.1 The Customer shall not:
a) license, sublicense, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, Elina or the Documentation in any way;
b) modify or make derivative works based upon Elina or the Documentation;
c) create Internet "links" to Elina or "frame" or "mirror" any content on any other server or wireless or Internet-based device; or
d) reverse engineer or access Elina to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics, or (iii) copy any ideas, features, functions or graphics.
6. Use of the elina Name and Logo
6.1 The Customer is hereby given the right to use the elina name and logo on the Customer website in accordance with the elina Brand Guidelines. The Customer shall not use any name, trade mark, logo or other item which relates to the Elina brand that has not first been approved by us.
6.2 The Customer hereby accepts and agrees that the Elina Brand Guidelines are part of this Agreement. Please be aware that the terms and conditions may change from time to time and the current version of these terms and conditions shall prevail over any previous ones. Any changes in the terms and conditions regarding use of the Elina brand name and logo will be posted on our website here: https://www.elinapms.com/brand-guidelines/.
6.3 Any breach of the terms and conditions for the use of the elina brand and logo may result in the loss of any rights associated with the elina brand and logo. We may at any time at our own discretion withdraw any rights given under this Agreement concerning the use of the elina brand and logo.
7. Customer Data
7.1 Any Customer Data generated through elina, whether it pertains to your business, customers or visitors, or transaction information of sales and operations is and remains your property. In the event that you elect to discontinue using elina, you may, while not in breach of this Agreement, download or export Customer Data. Should you require that the Customer Data be in a specific format or be exported by us, an additional charge may be applied.
7.2 Vestibule Marketing retains the right to access Customer Data for system maintenance, analysis and performance purposes. Vestibule Marketing will at no time use Customer Data directly for marketing purposes, nor will we try to contact any of your customers without your prior consent.
7.3 Vestibule Marketing keeps regular backups of historical Customer Data in order to recover losses due to system failures or User errors. Any loss of Customer Data due to Customer use of elina is not the responsibility of Vestibule Marketing. If notified within 24 hours of any such loss, the elina Concierge service will attempt to restore the missing data. Where the loss is substantial and due to Customer neglect or error, Vestibule Marketing may charge for the recovery effort.
8. Elina Concierge
8.1 The elina Concierge service is provided as part of the service delivery of elina. This service gives you free access to our support team for help with the use of elina, including technical and operational support. The elina Concierge is not meant to replace your internal training procedures nor any operational aspects of your business. Where Vestibule Marketing deems that your usage of the elina Concierge service exceeds reasonable usage or shows that additional official user training is required, we may offer you a separate operational support contract or training session(s) to cover your needs.
8.2 It is the responsibility of the customer to ensure new and existing staff are given the basic knowledge on the use of Elina that is provided during basic elina training (video, remote or in-person training). Additional training options are available for a fee by the elina Concierge on many functional and operational subjects.
8.3 The elina Concierge support team are available to field inbound requests at a minimum of nine (9) hours daily between Monday to Friday. Outside of core support hours, emergency requests based on system outage or operational blockers are fielded at any time. See the Conceirge Helpdesk for detailed information on all support and how to communicate in which situation.
9. Marketing and Communications Tool
9.1 Elina contains a marketing & communications tool giving you the ability to send communications to third parties via select media.
9.2 You may use the marketing & communications tool only for your business purposes and you shall not:
a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
b) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights;
c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
d) interfere with or disrupt the integrity or performance of elina or the data contained therein; or
e) attempt to gain unauthorized access to the Service or its related systems or networks.
9.3 Breach of this clause is grounds for Vestibule Marketing to terminate the Agreement or restrict your access to certain elina functions.
10. Fees and Payments
10.1 The Fees agreed upon between the Parties are outlined in The Schedules of this Agreement. All fees are excluding VAT. VAT will be charged in accordance with current UK government regulation and international agreements on services provided by a company based in the United Kingdom.
10.2 All Monthly Fees detailed under The Schedules are running fees that will be charged throughout the life of the Agreement, in advance. If the first date any Utlilisation of the elina property management system or related services is passed to the Customer is a date other than the 1st of the month, the first charge will be added to the next monthly invoice on a pro-rated basis [equal to the total annualised Fees / 365].
10.3.1 elina Fees detailed under The Schedules are due regardless of whether the Customer has started to use the elina property management system or related services. Any delays due to Customer input, action or responsibilities will not change this date for invoicing purposes.
10.3.2 Fees are calculated as detailed in The Schedules. If the Customer increases or decreases the number of managed units in their elina system, this will be charged according to The Schedules, and charged on a pro-rata daily charge as described in section 10.2.
10.4 Fees will be payable via bank transfer, direct debit or credit card according to the options available in The Schedules. Other costs pertaining to the selling of your products and services (e.g. cost of data transfer, marketing, bank charges, telecommunications, etc.) is a matter between you and your service provider.
10.5 The Customer will be notified of Fees payable via an invoice sent by e-mail to the billing contact email address listed in The Schedules.
10.6 Failure to pay Fees may result in termination of this Agreement and/or discontinuation of Utilisation and loss of access to elina and Customer Data. Such discontinuation of Utilisation shall not absolve the Customer of their obligations pursuant to this Agreement. We reserver the right to charge nominal late fees if invoices are not paid on or by the due date.
10.7 Fees detailed in The Schedules may be adjusted or increased from to reflect improvement in service, or inflation. Such an update shall not require an amendment to this Agreement, and the Customer, will be notified of such via e-mail to the Contact Person named in this Agreement. Any fee adjustments shall only take effect with 90 days notice. The maximum fee increase shall not exceed 10% per year. This does not apply to increases due to change in requested Utilisation.
11. Warranties
11.1 Except as provided for in writing in this Agreement, elina is provided without any warranties, express or implied. We will do our best at all times to provide system access and up times and will, to the best of our ability, make sure that you are satisfied with elina.
11.2 Access to your elina PMS system is made via a web browser over a standard internet connection. In the event that the Elina system is not accessible, either through a fault in connectivity at our hosting facility or through a software failure, for more than 2% of total possible time in a month, the customer may request a credit of elina fees for that month to be taken off their next elina invoice. Loss of accessibility due to the following will not be eligible to be counted against the 2% total; force majeure, any customer network or hardware or Elina system settings issues, third party API connections to the customer Elina system, scheduled outages for security updates, loss of access due to non-payment of fees as outlined within this agreement.
12. Indemnification
12.1 The Customer agrees to indemnify Vestibule Marketing for any loss, damage or expense, including but not limited to, any penalty or compensation resulting from any claim brought by any User against Vestibule Marketing in respect of:
- a) Elina as a result of your interaction with, use of, or set-up of elina; or
- b) The Customer’s goods or services.
12.2 The Customer shall be liable for, and shall indemnify Vestibule Marketing against any losses suffered by Vestibule Marketing arising from any unauthorised use of elina that is a result of the Customer’s failure to adequately protect elina against any unauthorised use, within their sphere of influence. The same shall apply in the event that a Customer’s elina is misused by an employee, agent, consultant or any other person employed or hired by the Customer.
13. Limitations on Liability
13.1 We shall not be liable for fees, costs or other charges incurred by a User in connection with use or redemption of the Customer’s services.
13.2 We are not liable for the incorrect dispatch of communication. Under no circumstance shall we be liable for any indirect or consequential loss, damage or expenses, including but not limited to loss of reputation, loss of business, revenue or profits, loss of goodwill, loss of Customer Data, whether or not foreseeable on our part that is a result of our action or omission in connection with these terms and conditions.
13.3 Our maximum liability under this Agreement shall not exceed the total amount paid by the Customer to Vestibule Marketing as Fees for Utilisation over the preceding one (1) month.
13.4 Neither Party shall be liable for loss or damage caused by power shortage, errors in or failure of the data processing network or telecommunication network, regulatory changes, or orders from Public Authorities, war, strike, and other conditions outside that Party's direct control.
13.5 Vestibule Marketing shall not be responsible for delays in service due to internet or telecommunications. elina is provided as a service over the internet, and can therefore not at all times guarantee end-to-end availability from the Elina server to the Customer location. In locations where reliable internet connections are a concern, the Customer should discuss with Vestibule Marketing the options to minimize the effects of such experiences.
14. Changes and Amendments to the Services and this Agreement
14.1 We will from time to time add new features and new functionalities to elina which could lead to Downtime. We will endeavour to make these changes as smooth and quick as possible to minimise the impact. You will be given reasonable warning in advance of any planned Downtime and / or new features and functionalities.
14.2 Changes in elina’s features and functionality will mean that parts of this Agreement will have to change from time to time to reflect the changes we make to elina. Changes in our legal obligations may also mean changes in the terms and conditions outlined in this Agreement. Any changes or amendments we make to this Agreement will be communicated to the Contact Person by e-mail.
14.3 Vestibule Marketing may also from time to time change the Systems Management Regulations. These changes may include, but are not limited to:
a) Regulations defining minimum specifications for Customer Equipment to interface with the Utilisation (including, but not limited to, routers, firewalls and PCs);
b) Regulations to ensure that the network through which the Utilisation are provided are not overloaded and that the security and integrity of the network is maintained. This may include regulations which arise from the need to comply with regulations of any data centre facility engaged by Vestibule Marketing in connection with the Utilisation; and
c) Regulations to ensure that any database or other applications which form part of the Utilisation are used to the best effect and within their capacities.
15. Miscellaneous
15.1 Headings are for reference purposes only and shall in no way define, limit, construe or describe the scope or extent of the content of that section.
15.2 If either Party should fail, or choose not to act with respect to a breach of any of the terms and conditions in this Agreement it shall not waive either Party’s rights to act with respect to subsequent or similar breaches.
15.3 If any of the terms and conditions in this Agreement should be held to be invalid or unenforceable, that provision shall be deleted and the remaining provisions shall be enforced.
16. Problem Solving
If you experience problems or have any questions with regards to the use of our Utilisation we ask that you contact the elina Concierge support team at: elinacares@elinapms.com.
17. Entire Agreement
17.1 This Agreement sets out the entire agreement and understanding between the Parties in respect of the subject matter of this Agreement.
17.2 The Customer acknowledges that it has entered into this Agreement in reliance upon the representations, warranties and promises specifically and solely contained or incorporated in this Agreement and, save as expressly set out in this Agreement, we shall have no liability with respect to any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
18. Transfer of Agreement
18.1 The Customer may not transfer (in whole or in part) their rights or obligations under this Agreement to any party without Vestibule Marketing’s prior written consent.
18.2 Vestibule Marketing shall be entitled to transfer any rights and obligations under this Agreement and the Customer will be given Notice of any such transfer in writing.
19. Notice
Any Notice under this Agreement must be in writing and may be served by email to elinasales@elinapms.com.
20. Marketing
The Customer accepts that we may list the Customer on our website and/or use the name, logo and trademark of the Customer for marketing purposes unless otherwise agreed in writing.
21. Exclusion of Third Party
Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
22. Law and Jurisdiction
This Agreement shall be governed and construed by the law of England and Wales. Both Parties undertake to make all reasonable attempts to resolve any dispute or claim arising out of this Agreement. The Customer’s first means of making a complaint or claim should be by contacting the elina Concierge. If all reasonable attempts at resolving a conflict fail, claims may be escalated to the Courts within England and Wales.
