General Terms & Conditions for Sri Lanka Hotel Listing in MyLifeLK.com
These general terms (the 'Terms') form an integral part of the MyLifeLK.com Accommodation Agreement (the 'MyLifeLK.com Booking Listing Agreement' and together with the Terms, 'Agreement') entered into between an Accommodation and MyLifeLK.com (each a 'Party' and collectively the 'Parties').
DEFINITIONS AND INTERPRETATION
In this Agreement, save where the context otherwise requires or the Agreement otherwise provides, capitalised words and expressions shall have the meanings given to them in Appendix 1.
This Agreement is not intended, nor should anything herein or in any of the arrangements contemplated herein, be construed to create a joint venture or the relationship of partners, partnership or principal and agent between the Parties. Neither Party shall act, or be construed to act, as the agent of the other.
PROPERTY WEBSITE SERVICES
- The Accommodation agrees not to post, upload, publish, submit or transmit via or to the Site or Property Website Services any Content that: (1) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy/data protection or otherwise violates, or encourages any conduct that would violate, any applicable law, rule, statute, ordinance, court or agency decision or regulation (collectively, the 'Laws'), (2) would give rise to civil liability, (3) is fraudulent, false, libellous, misleading or deceptive, (4) is defamatory, obscene, pornographic, sexual, vulgar or offensive links to an adult orientated, pornographic or otherwise sexually orientated service, (5) promotes sexually explicit materials, illegal activities, violence, discrimination (based on race, sex, religion, nationality, disability, sexual orientation, age or otherwise), bigotry, racism, hatred, harassment or harm against any individual or group (on the basis of age, colour, national origin, race, religion, sex, sexual orientation, handicap or otherwise), or (6) is violent or threatening or promotes violence or actions that are threatening to any person or entity.
- The Accommodation also agrees not to use, display, mirror or frame the Site, or any individual element within the Site or Property Website Services, including MyLifeLK.com's name or any MyLifeLK.com Content.
- The Accommodation acknowledges and agrees that MyLifeLK.com has the right to investigate and prosecute violations of any of the above prohibitions.
- Subject to the Accommodation's compliance with the terms and conditions of these Terms, MyLifeLK.com grants the Accommodation a limited, revocable, non-exclusive, non-transferable and non-assignable right and license to view, download and print relevant MyLifeLK.com Content solely for the personal and non-commercial purposes. The Accommodation has no right to sub-license the license rights granted in this section. The Accommodation will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or MyLifeLK.com Content, except as expressly permitted in these Terms. No licenses or rights are granted to the Accommodation by implication or otherwise under any intellectual property rights owned or controlled by MyLifeLK.com or its licencors, except for the licenses and rights expressly granted in these Terms.
- The Accommodation may use the MyLifeLK.com Content under that license for its internal business purposes only and to the extent necessary for the Accommodation to access and use the applicable Property Website Services.
- MyLifeLK.com will not publish, publicly display or perform or otherwise make available to the general public any Accommodation Content outside the scope of the right and license.
- The Accommodation agrees and acknowledges that reproducing, copying, using, incorporating, imitating, publishing or distributing any part of the MyLifeLK.com Content.
- The Accommodation agrees not to specifically target the MyLifeLK.com brands (including affiliate brands) through keyword purchases that use any intellectual property rights of MyLifeLK.com or its affiliated group companies.
The 'Connected Marketplace Services', also includes the MyLifeLK.com Marketplace, and Vendor Portal products where Accommodation partners can adopt technology and service solutions (applications) from external Solution Partners using data from various accommodation partners.
To be eligible to use the Connected Marketplace Services, the Accommodation must meet the following criteria: (i) not being restricted from the Connected Marketplace Services; (ii) not being a competitor of MyLifeLK.com, (iii) not violating any other agreement binding the Accommodation; (iv) not violating any rights of MyLifeLK.com; and (v) agreeing to provide at its own costs all equipment, software and internet access necessary to use the Connected Marketplace Services.
- MyLifeLK.com may modify, replace, refuse access to, suspend or discontinue Connected Marketplace Services, partially or entirely, or change or modify prices for all or part of the Connected Marketplace Services in its sole discretion. All such changes shall be effective upon their being posted on the website or by their direct communication to the Accommodation, unless otherwise noted. MyLifeLK.com further reserves the right to withhold, remove and/or discard any content available as part of the Accommodation Account, with or without notice if deemed by MyLifeLK.com to be contrary to this Agreement.
- MyLifeLK.com facilitates (through third party payment processors) the payment of the relevant product or service (i.e. the payment facilitation service) for and on behalf of the vendors and suppliers that offer their products on or through the Connected Marketplace (MyLifeLK.com never acts nor operates as the merchant of record). Payment is processed to the relevant vendor/supplier through a third party payment processor. Any payment facilitated by us for and on behalf of, and transferred to the vendor/supplier will in each case constitute a payment of (part of) the booking price by you of the relevant product or service in final settlement of such (partial) due and payable price and you cannot reclaim such paid monies.
- MyLifeLK.com is not responsible nor liable for the relevant prices as displayed for the relevant Products (including taxes, fees, surcharges or levies) (or any errors or omissions in this respect). The Accommodation shall not hold MyLifeLK.com liable for any obvious errors and mistakes (including misprints) (which are all not valid and binding). All special offers and promotions must be marked as such.
- MyLifeLK.com is not responsible (and disclaims any liability) for the use, validity, quality, suitability, fitness and due disclosure of the products or services (offered or made available on or through the Connected Marketplace) and makes no representations, warranties or conditions of any kind in this respect, whether implied, statutory or otherwise, including any implied warranties of merchant-ability, title, non-infringement or fitness for a particular purpose. The Accommodation acknowledges and agrees that the relevant vendor or supplier is solely responsible and assumes all responsibility and liability in respect of the product/service (including any warranties and representations made by the vendor/supplier). MyLifeLK.com is not a (re)seller, offeror or provider of a product/service made available on the Connected Marketplace. Complaints or claims in respect of the product/service (including related to the offered (special/promotion) price, policy or specific requests made by the Accommodation) are to be dealt with by the vendor/supplier. MyLifeLK.com is not responsible for and disclaims any liability in respect of such complaints, claims and (product) liabilities or deficiencies.
The Accommodation acknowledges and agrees that the Accommodation is solely responsible for all Content that the Accommodation make available through the Extranet. Accordingly, the Accommodation represents and warrants that: (1) the Accommodation is the owner of its content as provided or made available to MyLifeLK.com, or (2) the Accommodation has all necessary rights, licenses, consents and releases that are necessary to grant to MyLifeLK.com the rights and licenses set forth in these Terms or as required to perform its obligations under the Agreement.
INTELLECTUAL PROPERTY RIGHTS
The Accommodation agrees and acknowledges that MyLifeLK.com owns all rights, titles and interests in and to the Connected Marketplace, and the Property Website Services (including the Site(s), the URLs representing the Connected Marketplace in the MyLifeLK.com, logo).
CALCULATION OF FEES, COMMISSION & DEPOSIT
All fees as charged or due and payable under the Agreement (the "Fees") shall be set out or calculated in accordance with MyLifeLK.com Agreement.
Commission payments for using Property Websites listing services and Booking reservation services shall be calculated as follows:
(a) For each reservation made on the Site stand alone service by an End User the Accommodation shall pay MyLifeLK.com a commission (the 'Commission') calculated in flat rate of 15 (%) percent from the bill value.
- All commission deductions will be made under the Agreement shall be made in cleared funds.
WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY
Each Party represents and warrants to the other Party that for the term of this Agreement:
(i) it has the full corporate power and authority to enter into and perform its obligations under this Agreement;
(ii) it has taken all corporate action required by it to authorize the execution and performance of this Agreement;
(iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms, and
(iv) it shall comply with all applicable Laws of the jurisdiction where it is incorporated with respect to the products (to be) offered and/or services (to be) rendered by such Party.
Except as otherwise expressly provided in this Agreement, neither Party makes any representation or warranty, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warranties of merchant-ability or fitness for a particular purpose regarding such subject matter.
The Site, the Services and MyLifeLK.com Content (including Legal Documents) are provided on an 'as is' and 'as available' basis, without warranty of any kind, either express, statutory or implied. Furthermore, MyLifeLK.com explicitly disclaims any (express, implied or statutory) warranties of merchant-ability, fitness for a particular purpose, quiet enjoyment or non-infringement, or any warranties arising out of course of dealing or usage of trade, product or service. MyLifeLK.com makes no warranty that the Site, Services or MyLifeLK.com content will (a) meet the Accommodation's requirements, (b) comply with applicable laws, or (c) be available on an uninterrupted, secure or error-free basis. MyLifeLK.com makes no warranty regarding the quality of any products, services or MyLifeLK.com content purchased or obtained through the Site or Services or the accuracy, timeliness, truthfulness, completeness or reliability of any content, including end/other users' content, obtained through the Site or Services. For clarity, no advice or information, whether oral or written, obtained from MyLifeLK.com Site, Services or MyLifeLK.com Content will create any warranty not expressly made herein.
- As part of its Services, MyLifeLK.com may from time to time create, host, develop, manage, offer, make available, use or maintain legal documents that apply vis-à-vis end users/visitors of the Site or customers of the Accommodation e.g. terms and conditions, privacy statement, cookie notice (cancellation/no-show) policies, FAQs (collectively the 'Legal Documents') to or for the benefit of the Accommodation or that the Accommodation can use for its own products and services and on the Site. MyLifeLK.com does not give any comfort, guarantee or warranty (and disclaims any responsibility and liability) that these Legal Documents (i) comply with all applicable laws, and (ii) are valid, binding and enforceable. The use of the Legal Documents is at the Accommodation's own risk and account and the Accommodation is strongly advised to seek (at its own costs) legal consultation and advice from its lawyer(s) in order to make sure that these legal documents comply with all applicable laws and are valid, binding and enforceable.
- MyLifeLK.com does not guarantee continuous, or uninterrupted access to the Services and (web)Site(s), which may be interfered with by numerous factors outside MyLifeLK.com's control. The Accommodation acknowledges and agrees that its access to and use of the Site and the Services is dependent upon access to telecommunications and Internet services. The Accommodation acknowledges the difficulties inherent to the use of the (mobile) Internet, communication and broadband, in particular, varying speeds and congestion in the (mobile) network, connections, systems and servers can cause interruptions, delays and difficulties in accessing, browsing, navigating or using the Site. Accommodation excludes any and all liability in respect of MyLifeLK.com which is related to any (un-)planned or (un-)scheduled (wholly or partial) outage, downtime, interruption, breakdown or unavailability (whether for maintenance, upgrades, updates or otherwise) of the Site and/or the Services. Accommodation shall be solely and at its own costs responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Site and Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
- The Accommodation acknowledges and agrees that, to the maximum extent permitted by applicable Laws, the Accommodation accepts and assumes all risk, whether known or unknown to the Accommodation, arising out of the Accommodation's access to and use of the Site, Services and MyLifeLK.com Content. Without limiting the foregoing and to the maximum extent permitted by applicable Laws, the Accommodation also acknowledges and agrees that MyLifeLK.com will not be responsible or liable for, or incur any, claims, causes of action, suits, penalties, fines, losses, damages, costs or expenses (including reasonable attorney's fees) (collectively, the 'Claims') arising out of or in connection with these Terms or from the Accommodation's access or use of, or inability to access or use, the Site, Services or MyLifeLK.com Content for or arising out of the following: (1) personal or bodily injury or death or emotional distress; (2) interactions or meetings with other customers or users of the Site or Services or other persons with whom Accommodation communicate or interact as a result of the Accommodation's use of the Site or Services; (3) loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any telecommunications and Internet services (or the failure of such services) that Accommodation use to access or use the Site, Services or MyLifeLK.com Content; (4) any failure, omission or delay by MyLifeLK.com in performing its obligation under this Agreement due to circumstances beyond its reasonable control (including force majeure); (5) improper use or misuse of the Services; (6) implementation or use of software by the Accommodation that is not compatible with the software and systems as used by MyLifeLK.com in respect of the Services or Site; and (7) any other Claims arising out of or relating to the Accommodation's acts or omissions or the acts or omissions of any third-party, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not MyLifeLK.com has been informed of the possibility of such Claims, even if a limited remedy set forth herein is found to have failed of its essential purpose.
- Without limiting the foregoing, the Accommodation acknowledges and agrees that if MyLifeLK.com is found liable for any Claims, or for any other Claims arising hereunder, including for its breach of these Terms, MyLifeLK.com and any other person or entity involved in creating, producing, or delivering any of the foregoing will under no circumstances be liable for any incidental, special, exemplary, punitive, moral or consequential damages or losses, including, without limitation, loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or loss of data, or the cost of acquiring substitute products or services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not MyLifeLK.com has been informed of the possibility of such Claims, even if a limited remedy set forth herein is found to have failed of its essential purpose.
MyLifeLK.com disclaims and excludes any and all liability in respect of the Accommodation which is related to any (temporary and/or partial) breakdown, outages, downtime, malfunction, delay, interruption or unavailability of the Site, the Services, API/XML and/or the extranet.
- When using reservation pages, update errors may occur. MyLifeLK.com shall not be liable for (and the Accommodation shall indemnify MyLifeLK.com for any third party claim due to) overbookings, reservation errors or (wrong) cancellations due to the fault, negligence or omission of a third party OTAs, PMS, or APIs or such third party’s negligence, omission or malfunction (including outage or downtime of the third party system).
INDEMNIFICATION AND LIABILITY
General indemnification - Each Party (the 'Indemnifying Party') shall be liable towards, and compensate, indemnify and hold the other Party (the 'Indemnified Party') harmless for and against any direct damages, losses (excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any special, indirect or consequential losses and/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties, legal proceedings and expenses (including, without limitation, reasonable attorneys' fees and expenses) actually paid, suffered or incurred by the Indemnified Party pursuant to: (i) a breach of this Agreement by the Indemnifying Party, or (ii) any claim from any third party based on any (alleged) infringement of the third party's Intellectual Property Right by the Indemnifying Party.
Specific indemnity - The Accommodation agrees to fully defend, indemnify, and hold MyLifeLK.com (including its affiliated companies), and any of their officers, directors, employees and agents (the 'MyLifeLK.com Indemnitees'), harmless from and against any Claims arising out of or in any way connected with:
(1) any agreements or understandings the Accommodation has with third-parties, including End Users, or the Accommodation's failure to comply with and observe the terms of such agreements or understandings (including overbooking, double charges);
(2) all claims made by End Users concerning inaccurate, erroneous or misleading information on the Sites;
(3) all claims made by End Users concerning or related to a stay in the Accommodation, overbooking, relocation or (partly) cancelled or wrong reservations or repayment, refund or charge back of the room price;
(4) all other claims from End Users which are wholly or partly attributable to or for the risk and account of the Accommodation (including its directors, employees, agents, representatives) (including claims related to (lack of) services provided or goods/products offered by the Accommodation) or which arise due to tort, fraud, wilful misconduct, negligence or breach of contract by or attributable to the Accommodation (including its directors, employees, agents, representatives) in respect of an End User or its property;
(5) all claims against MyLifeLK.com Indemnitees in relation to or as a result of the failure of the Accommodation to (a) properly register with relevant tax authorities, or (b) pay, collect, remit or withhold any applicable taxes, fees and (sur)charges levied or based on the services or other charges hereunder in the relevant jurisdiction (including room price and commission payments), and
(6) any claims against MyLifeLK.com from any suppliers or vendors which offer their products and services to the Accommodation under or pursuant to this Agreement (e.g. marketplace) in relation to any act or omission (including breach of contract, (gross) negligence, wilful misconduct or tort) by the Accommodation (including its directors, employees, agents, representatives).
Maximum liability - Save as otherwise provided for in this Agreement, the maximum liability of a Party for all claims made against such party by the other Party under or in connection with this Agreement in a year shall not exceed the aggregate commission or fees received or paid by such Party in the preceding year or LKR 10,000 (whichever is higher), unless in the event of fraud or wilful misconduct of Indemnifying Party, in which event the limitation of liability is not applicable for such liable party.
Third Party Claim - In the event of a third party claim, the indemnified Party shall promptly notify the other Party and Parties shall act in good faith and use their commercially reasonable efforts to consult, cooperate and assist each other in the defence and/or settlement of such claim, whereas the indemnifying Party shall be entitled to take over a claim and assume the defence and settlement (in consultation and agreement with the indemnified Party and with due observance of both Parties' interests), and neither Party shall make any admission, file any papers, consent to the entry of any judgment or enter into any compromise or settlement without the prior written consent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
Waiver of consequential damages etc. - In no event shall any Party be liable to the other Party for any loss of production, loss of profit, loss of revenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim or any indirect, special, punitive, incidental or consequential damages or losses whether such damages are (alleged as) a result of a breach of contract, tort or otherwise. All such damages and losses are hereby expressly waived and disclaimed.
TERM, TERMINATION AND SUSPENSION
This Agreement shall be effective upon acceptance of the Accommodation by MyLifeLK.com and shall continue for the term as set out in the MyLifeLK.com Property (Hotel) booking listing Agreement (the 'Initial Term'), unless earlier terminated or extended in accordance with the provisions of this Agreement. Upon expiration of the Initial Term or in the absence of an Initial Term, this Agreement shall be entered into for indefinite period of time. After the Initial Term (if applicable), each Party may terminate this Agreement at any time and for any reason with due observance of a notice period of 30 days, unless indicated otherwise in the Agreement. Unless agreed otherwise by Parties, in the event that Parties have agreed to a Trial Period, this Agreement shall automatically continue upon expiration of the Trial Period for additional terms of 12 months each or the Initial Term (if applicable) (each an 'Additional Term'), unless the Accommodation gives notice of termination at any time during the Trial Period or 30 days before expiration of the relevant Additional Terms, in which event the Agreement shall expire and terminate at the end of the Additional Term.
Each Party may terminate this Agreement or suspend this Agreement in respect of the other Party, with immediate effect and without a notice of default being required in case of:
(a) a material breach by the other Party of any term of this Agreement or any other agreement entered into between the Accommodation and any affiliated group company of MyLifeLK.com, or
(b) (filing of a request for) bankruptcy (or similar action) in respect of the other Party.In the event of termination or expiration of this Agreement. In the event of termination or expiration of this Agreement, End User Data will be deleted within 90 days after the termination or expiration date.
Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other party (the 'Confidential Information'). Confidential Information includes transaction, traffic and usage volume, marketing, financial and business plans, technical, software and operational information and the terms of this Agreement. All Confidential Information shall be treated as private and confidential.
All notices and communications must be in English or Sinhalese, in writing, and sent by facsimile, email or nationally recognized overnight air courier to the applicable facsimile number, email address, or address set out in the Agreement.
- Each Party shall bear its own costs and expenses in connection with the entering into, execution and performance under this Agreement (including the integration and connection).
- If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
- The original English version of this Agreement may have been translated into other languages. The translated version of the English Terms is a courtesy and office translation only and the Accommodation cannot derive any rights from the translated version. In the event of a dispute about the contents or interpretation of these terms and conditions of this Agreement or in the event of a conflict, ambiguity, inconsistency or discrepancy between the English version and any other language version of these Terms, the English language version shall prevail, apply and be binding and conclusive. The English version shall be used in legal proceedings. The English version shall be sent to you upon written request.
- The Agreement may be entered into online or by way of executing a separate counterpart or by pdf or fax copy, each of which (copies) shall be deemed an original, valid and binding. The Agreement only enters into force and effect upon written confirmation of acceptance and approval of the Accommodation by MyLifeLK.com. The Accommodation agrees, acknowledges and accepts the terms and conditions of this Agreement. The Agreement does not need any chop or seal to make it valid, binding and enforceable.
GOVERNING LAW AND JURISDICTION
This Agreement shall be exclusively governed by and construed in accordance with the laws of the Sri Lanka. Any disputes arising out or in connection with this Agreement shall exclusively be submitted to and dealt with by the competent court in Colombo, the Sri Lanka.
'Accommodation Content' means Content that an Accommodation posts, uploads, publishes, submits or transmits to be made available through the Site or Services (including pictures, descriptive information, rates and availability), excluding End User Data, as part of that Accommodation's use of the Services.
'Property Website' means one or more websites or other Accommodation on-line or mobile websites or apps that MyLifeLK.com may design, host, develop or otherwise makes the Services (directly or indirectly) available on.
'MyLifeLK.com Content' means the Site, the Services, and any Content that MyLifeLK.com makes available through the Site or Services, including any Content (sub)licensed by a third party, but excluding Customer Content. For clarity, Content includes any digital marketing Content MyLifeLK.com provides to Customers hereunder, as well as the overall "look and feel" or compilation of any Customer Site that contains or is created using MyLifeLK.com Content.
'Content' means text, graphics, images, music, software, audio, video, information or other works of authorship.
'End User' means any end user or customer of the Accommodation.
'End User Data' means information that we collect from End Users on the Accommodation's behalf and may include Personal Data.
'Instruction' means any documented instruction received by MyLifeLK.com from Accommodation under this Agreement related to the Services.
'Services' means the services as from time to time rendered or made available by MyLifeLK.com under or pursuant to this Agreement (including the Property Website Services, Booking Engine Services, and the Connected Marketplace services).
'Site' means any websites or on-line or mobile websites or apps launched, managed, maintained or operated by or on behalf of MyLifeLK.com.
'Term' means the Initial Term, each 12 months period after the Initial Term or an Additional Term.
'Trademark' means any trademark, service mark, trade name, logo, tagline or similar designator of source, origin or affiliation of goods and services.