By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Company that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms Customer,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
Active Listing: means a Listing that has active Services on FantasticStay.com.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
Agreement: means the current Terms of service together with any and all Supplements, Additional Terms and Order Forms.
Beta Services: means a product, service or functionality provided by FantasticStay that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
Confidential Information: means all information disclosed by You to FantasticStay or by FantasticStay to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to FantasticStay’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by FantasticStay or its authorized subcontractors as indicated on an Order Form or other written document such as a statement of work “SOW”, as defined below.
Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by FantasticStay to You in the applicable help center(s).
End-User: means any person or entity other than Customer or Agents with whom Customer or its Agents interact using a Service or Other Services.
Listing: means any advertisement of an accommodation for short-term rentals on Other Services.
Order Form: means any of Our service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Other Services which may be integrated directly into Your Account by You or at Your direction.
Payment Agent: means FantasticStay or a payment agent designated by FantasticStay.
Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Personnel: means employees and/or non-employee service providers and contractors of the FantasticStay engaged by the FantasticStay in connection with performance hereunder.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, Updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed . “Services” exclude Other Services as that term is defined in this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
Service Data: means electronic data, text, messages, communications or other materials processed by, submitted to or stored within a Service by You and Agents in connection with Your use of such Service, which may include, without limitation, Personal Data. In particular, Service Data may be extracted from a Channel on your behalf.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.
Site: means a website operated by FantasticStay, including www.FantasticStay.com, and all its sub-domains, including app.FantasticStay.com, as well as all other websites that FantasticStay operates.
FantasticStay: means Fantasian Ltd, a private limited company organized under the laws of United Kingdon, company number 11848460, or any of its successors or assignees.
Software: means software provided by FantasticStay (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.
Subscription Term: means the period during which You have agreed to subscribe to a Service.
Supplemental Terms: means the additional terms and conditions that are (a) contained in this Agreement under the Section entitled, “Supplemental Terms and Conditions” which apply and are incorporated into this Agreement with certain Services, features, or functionality; (b) included or incorporated on an Order Form (e.g. when a Deployed Associated Service is purchased); or (c) applicable to Consulting Services when purchased by You.
Usage Data: means aggregated encoded or anonymized data that FantasticStay may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, and which does not contain Personal Data.
“We,” “Us” or “Our”: means FantasticStay as defined.
2.1 • During the Service(s) Term and subject to compliance by You and Agents with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Other Services, or acts undertaken by third parties, including without limitation, denial of service attack.
2.2 • A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by FantasticStay, including the Transport Layer Security (TLS) protocol or other protocols accepted by FantasticStay, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by FantasticStay. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.3 • In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with FantasticStay, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicitous or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information”; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
2.4 • You are responsible for compliance with the provisions of this Agreement by Agents and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service.
2.5 • We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You or Agents.
2.6 • You acknowledge that FantasticStay may modify the features and functionality of the Services during the Service(s) Term.
2.7 • You may not access the Services if You are a direct competitor of the FantasticStay, except with FantasticStay’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
2.8 • If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
2.9 • We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Other Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3.1 • Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the Personnel who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.
3.2 • FantasticStay will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Service Data” attached hereto, and Supplemental Terms for the Deployed Associated Services, as applicable. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Section 3.1 above; or (c) as You expressly permit in writing. FantasticStay compliance with the provisions of Sections 3.2 through 3.5 shall be deemed compliance with the FantasticStay’s obligations to protect Service Data as set forth in the Agreement.
3.3 • To the extent Service Data constitutes Personal Data, You and FantasticStay hereby agree that You shall be deemed to be the data controller and FantasticStay shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). Unless otherwise specifically agreed to by FantasticStay, Service Data may be hosted by FantasticStay or their respective authorized third-party service providers in the United States, the EEA or other locations around the world. In providing the Services, FantasticStay will Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the European Economic Area (the “EEA”), the United States and in other countries and territories. Under no circumstances will any entity in FantasticStay be deemed a data controller with respect to Service Data under the Directive or any relevant law or regulation of any Member State as defined in the Directive.
3.4 • If Your principal location is in the EEA, We will ensure, pursuant to Article 25 of the Directive that, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), that such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of the Directive is satisfied; or (c) the transfer is via the EU-US Privacy Shield or Swiss-US Safe Harbor frameworks.
3.5 • You agree that FantasticStay and the third-party service providers that are utilized by FantasticStay to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by FantasticStay will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.4.
3.6 • In addition to Service Data, We collect certain information (which may include Personal Data) about You, Agents and End-Users as well as Your and their respective devices, computers and use of the Service. This includes, among other things:
Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with FantasticStay and belong exclusively to FantasticStay. FantasticStay shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. FantasticStay, service names and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of FantasticStay (collectively, “Marks”), and You may only use applicable Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services are governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Other Services. We cannot guarantee the continued availability of such Other Service features, and may cease enabling access to them without entitling You to any refund, credit, or other compensation, if, for example and without limitation, the provider of an Other Service ceases to make the Other Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against FantasticStay with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting FantasticStay to disclose Your Login, as well as Service Data as necessary to facilitate the use or enablement of such Other Services.
6.1 • Use of the FantasticStay and/or Services is subject to the fees at the rates, packages, schemes, amounts, overage charges and payment cycles separately provided to You. Fees that are contingent on Property booking fees are determined according to the Property booking fees reported to FantasticStay by the Third Party Channel or by You. You are obligated to report accurate, correct and true information. We may, from time to time, change the applicable fees, rates, packages, schemes, amounts, overage charges and payment cycles. If we do so, we will put You on notice of such changes, but we will not radically change these matters in a way that adversely affects You, without obtaining Your consent.
6.2 • Fees are chargeable in EUR, but we reserve the right to offer that fees be charged in other currencies. If we do so and You opts to be charged in other currency, You may be subject to additional exchange fees or commissions collected by the Your payment method provider. Exchange rates are determined by a reputable third party provider and converted with the exchange rate applicable at the time the given reservation is made and is rounded up. You will have no plea, claim or demand with respect to the exchange rate used or currency conversion performed.
6.3 • Sales tax and other taxes may apply to the fees, in which case they will be added to the amount due and charged. We will issue and provide You with online receipts and/or invoices for the applicable fees we charge. You must pay the applicable fees using one of the payment methods we support, such as credit card. By providing Your payment information, You give Your consent for being billed for the applicable fees, in addition to any applicable surcharges or commissions that may apply under Your agreement with Your payment method provider. You must keep the billing information that You provided to FantasticStay current, complete, and accurate, and notify FantasticStay promptly in case of any change in the billing information. Payments are collected by our payment and billing service providers, not FantasticStay. We are therefore not responsible for their mishandling of the Customer’s payment information or any related security breaches.
6.4. • Except if and as expressly agreed otherwise, You are not entitled to any refunds or reimbursements in connection with the Our services or the applicable fees. In any event, You are not entitled to a refund for partial use of the Our services, unused features/services of FantasticStay, or for any time period during which You did not actually use or take advantage of the FantasticStay Services.
6.5. • Customer may not set off or deduct amounts from fees due to FantasticStay. Fees that we are unable to charge through the payment method You provided, as well as payable fees for which You did not provide a payment method, are deemed overdue. Failure to settle any overdue fee(s) within seven (7) calendar days of its original due date constitutes a breach of these Terms, entitling FantasticStay to suspend Your Account. Failure to settle any overdue fees within fourteen (14) calendar days of its original due date constitutes a material breach of these Terms.
6.6. • Without derogating from any other rights and remedies available to FantasticStay under applicable law, overdue fees may accrue interest at the rate of three-quarters of one percent (0.75%) per month or part thereof, cumulative monthly on the linked capital from the due date until the date of actual payment. You will reimburse FantasticStay for all legal costs, chargebacks, chargeback fees, credit card commissions, and attorney fees we incur in the course of collecting overdue or disputed fees. You shall not file a credit card charge dispute on amounts charged by FantasticStay, and shall instead raise all such disputes directly with FantasticStay.
We may, at Our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals. FantasticStay reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Service Charges for the applicable Service. Credits may only be applied to Service Charges due for the Service specifically identified by FantasticStay when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
8.1 • You may opt to use our Guest Communication Service. Our Guest Service Experts (FantasticStay Employees) will respond to reservation inquiries and requests originating from any connected Third Party Channels in the order which our priority system automatically determines. Our Guest Service Experts will handle tickets as follows:
8.2 • Our Employees will respond to your guests signing Your preferred way, changeable under Your Account settings. Options are limited to: (1) The host name, which we provide subject to restrictions and limitations specified by the applicable law; (2) As Ourselves;
8.2 • We may also offer a Post Booking service for coordination of Check-ins, Check-outs, Maintenance and/or Cleaning services. It is Your responsibility to ensure that tasks will be performed accordingly. We do not hold any guarantees in cases we can not obtain all necessary information from Your End-User. In all cases like that we will notify you immediately. We don’t hold any responsibility for Post Booking or offline services carried out by Third Parties. We will do everything in our power to assure Online Quality Control and we shall notify You for every case which the quality or services standards do not meet Your or Our requirements.
9.1 • The following fees apply in the event that reservation for a Property is cancelled:
For all cancellation of End-User reservations for which we don’t have enough payout data we charge our minimum fee of 5 EUR.
9.2 • You have the right to end our Services by clicking the “Cancel Account” button available on the FantasticStay application, or alternatively by You or Your Agent sending an email requesting termination to our Support email address [email protected] Termination will enter into effect once we complete processing Your request. Termination will not relieve You from remitting all payments due and will not entitle You to any refund.
9.3 • In addition to any remedies that may be available to Us under any applicable law, we may promptly temporarily or permanently deny, limit, suspend, or terminate Your Account, prohibit You from accessing the Our application or Services, and take technical and legal measures to keep the You off Our Application, if we, in our reasonable discretion, determine that: (1) You abused Your rights to use Our application or Services; (2) You materially breached these Terms; (3) You performed any act or omission which is harmful or likely to be harmful to Us, or any other third party, including other users of Our application and/or services. In addition to the above, we may also terminate these Terms and Your Account upon advance notice of 14 days to You (which we may provide by an email message to Your email address we have on file). We will not be liable to You for terminating Your Account or Services in accordance with the provisions of these Terms.
9.4 • Upon termination of Your account You must immediately settle all due fees and payments incurred up through the effective date of termination. You will fully pay all fees applicable to all End-User reservations that were confirmed after Your registration date to FantasticStay or it’s services and we may promptly charge You for those fees and payments using the payment method You provided. We may permanently delete Your Account, including all information and data it contains. Subject to Your payment of all due fees and payments incurred up through the effective date of termination, we will export and make available to You a copy of the information and data that Your Account contains, as of the effective date of termination.
10.1 • Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
10.2 • We warrant that during an applicable Service(s) Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 9.2 herein.
10.3 • EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 10.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11.1 • UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 • NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FANTASTICSTAY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SERVICE CHARGES FOR SUCH SERVICES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE Service Charges, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
11.3 • Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, FANTASTICSTAY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11.4 • Any claims or damages that You may have against FantasticStay shall only be enforceable against FantasticStay and not any other entity or its officers, directors, representatives or agents.
You will indemnify and hold FantasticStay harmless against any claim brought by a third party against FantasticStay arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement; provided (a) We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.
13.1 • You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You in connection with any merger or change of control of FantasticStay or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
13.2 • This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and FantasticStay with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services as detailed in a Supplement hereto or that We offer as part of or distinct from the Services (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control.
13.3 • We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by FantasticStay as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
All notices to be provided by FantasticStay to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or four (2) business days after being deposited in the mail or with a Courier as permitted above.
This Agreement shall be governed by the laws of the United Kingdom, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in London. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users.
Sections 1, 3.1, 4 and 9-16 shall survive any termination of our agreement with respect to use of the Services by You, Agents or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
For contacts please use: Fantasian Ltd, Kings Lodge London Road, West Kingsdown, Sevenoaks, United Kingdom, TN15 6AR, 11848460, [email protected]