TERMS OF SERVICE AND THE SUBSCRIPTION PAGE ON THE SITE (THE “AGREEMENT”) GOVERNS THE LICENSEE’S ACCESS AND USE OF DUNYHA LLC’S SOFTWARE SERVICE. BY CLICKING USING THE WEBSITE THE LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THE LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) WARRANTS IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, IT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE LICENSEE AND BIND THE LICENSEE TO ITS TERMS.
These terms govern Dunyha LLC’s (“Dunyha”) provision of its short-term rental booking software products and services (“the Services”) for matching Guests with a Property managed by a Rental Agent as well as designing homes and home ownership methods. The Authorized User supplies information to Dunyha, including Property description, preferences, as well as settings of place and time, along with market information. The Services then convey various Properties and options using parameters supplied by the Authorized User approximating these preferences. The Service will be provided through Dunyha.com (the “Site”). To use the Service, the Licensee will request a subscription through the Site (“Subscription”). Dunyha has the right to reject the Licensee’s application for a Subscription in its sole discretion.
The Service and access to the Site are not intended to be available to, nor is the Service offered to, any Person within the European Union and the European Economic Area, and no representation of any sort is made to any such Person, unless otherwise specifically stated in writing on the Site. If the Licensee is located within the European Union or the European Economic Area, do not use the Service, and contact Dunyha for a full refund of any subscription fees paid.
For purposes of this Agreement, the following terms have the following meanings:
(a) “Authorized Users” means a Person Guest, Rental agent or agent of Licensee authorized to use the Service pursuant to the license granted under this Agreement.
(b) “Documentation” means user manuals and any other materials provided by Dunyha, in printed, electronic or other form, that describe the operation, use or technical specifications of the Service.
(c) “Customer Data” means any Authorized User’s data and information collected by Dunyha in the course of the Authorized Users’ use of the Service.
(d) “Licensee” means the Person who has accepted this Agreement.
(e) “Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity.
(f) “Guest” means a person making a short term rental.
(g) “Rental Agent” is the owner, manager or agent renting a short-term rental Property to a Guest.
(h) “Property” is the premises being rented on a short-term basis.
(a) License to the Service. Subject to the terms and conditions of this Agreement, Dunyha grants the Licensee a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Service the Licensee selects on the Site, solely by and through its Authorized Users. The information and data produced in the course of the using the Service will be accessible to the Licensee and the Authorized Users up until the expiration or the termination of this Agreement and for the period set out in Section 11(c) Feedback, if applicable.
(b) Restrictions on Use of the Service. In connection with the Licensee’s use of the Service, the Licensee will comply (and it will ensure that all Authorized Users will comply) with all applicable laws, rules and regulations. The Licensee will not, and will not permit any third party to: (i) copy, modify, translate, adapt or create derivative works of the Service; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service; (iii) lend, lease, offer for sale, sell or otherwise use the Service for the benefit of third parties; or (iv) attempt to circumvent any license, timing or use restrictions that are built into the Service. The Service is subject to usage limits, including, for example, the limits on users specified on the Site. Unless otherwise specified, an Authorized User’s password may not be shared with any other Person.
(d) Use of Content. Subject to the terms and conditions of this Agreement, the Licensee agrees Dunyha may use the information and data entered into the Service by the Licensee and/or its personnel, or by any third parties acting on behalf of the Licensee or at its request, which for greater certainty includes but is not limited to Customer Data, (collectively, the “Content”) to (1) provide and improve the Service, (2) evaluate and test the Service, (3) respond to specific requests from Authorized Users, and (4) aggregate and analyze all data collected by Dunyha in the course of the Authorized Users’ use of the Service. The Licensee represents and warrants that: (5) the Licensee owns the Content posted by it on or through the Service; (6) the posting and use of Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any Person; and (7) the providing of the Content does not result in a breach of contract between the Licensee and any third party. Licensee agrees Dunyha may maintain and use the Content and Customer Data in an aggregated and/or anonymized manner for purposes of sales, marketing, business development, product enhancement, or customer service.
The Licensee will (i) be responsible for the Licensee’s (and as applicable, the Licencee’s personnel’s) compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Dunyha immediately of any such unauthorized access and/or use of which the Licensee becomes aware of, and (iii) use the Service only in accordance with the terms of this Agreement and all applicable laws and government regulations. Licensee will not (w) make the Service available to any third party, (x) sell, resell, rent or lease the Service, (y) interfere with or disrupt the integrity or performance of the Service or any third-party data contained on the Service, including, as applicable, the third-party data of the Licensee’s employees, or (z) attempt to gain unauthorized access to the Service or their related systems or networks. The Licensee is responsible and liable for all actions and failures to take required actions with respect to the Service and Documentation by its Authorized Users or by any other Person to whom the Licensee or an Authorized User may provide access to or use of the Service or Documentation, whether such access or use is permitted by or in violation of this Agreement.
Access to the Site is password protected. The Licensee will be assigned a default password which must be changed to their personal and confidential password upon logging into the Site for the first time. The Licensee agrees to keep its password confidential in order to prevent unauthorized access to the Service, to only disclose the password to Authorized Users on a need to know basis and to notify such Authorized Users of the requirement of confidentiality under this Agreement.
The Licensee will control and maintain the security of all passwords. The Licensee is solely responsible for all instructions, commitments and other actions or communications taken under any of its Authorized Users’ accounts. The Licensee will promptly report to Dunyha any errors or irregularities in the Service or any unauthorized use of any part thereof and inform Dunyha immediately if any password becomes known to any third person who is not authorized to possess such password. The Licensee hereby indemnifies and holds harmless Dunyha from any actions, claims, suits, proceeding or damages claimed against Dunyha from a third person as a result of any use of the Licensee’s passwords, whether or not such use is authorized by the Authorized User.
The Licensee is responsible for: (i) creating new user accounts or bookings for Authorized Users, (ii) removing access to the Service given to an Authorized User which no longer acts on behalf of the Licensee, and (iii) ensures that the fees as set out in Section 8 Fees are promptly paid by the Licensee.
Dunyha will make the Service available to the Licensee free of charge the time of booking. Additional trial terms and conditions may appear on the booking web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY, REPRESENTATION, LIABILITY OR RESPONSIBILITY OF DUNYHA TO THE LICENSEE OR AUTHORIZED USER.
(a) Fees. The Licensee will pay Dunyha the fees described on the Site for the Property the Licensee selects during booking (the “Fees”). All Fees are due in advance and are based on the Service ordered. There is no cancelation fee when cancelation notice is received by Dunyha at least 5 evenings before the Rental Period occurs. Cancelations received by Dunyha more than 2 evenings before the Rental Period occurs will be charged for each Rental Evening not less than 5 evenings prior to Dunyha receiving cancellation notice.
(b) Payment Terms. Fees must be paid using Dunyha’s payment provider upon registering for the Service. The Licensee will be charged at the time of booking.
(c) Taxes. The Licensee is responsible for payment of all sales, use, property, value-added, withholding, or other federal, provincial, state or local taxes except for taxes. If Dunyha is required to pay any such taxes based on the licenses granted in this Agreement or on the Licensee’s use of the Service, then such taxes will be charged to and paid by the Licensee.
If the Licensee uses the Service to generate quotes for the Licensee’s clients integrating the results generated by the Service (the “Results”), then Dunyha grants the Licensee a license to reproduce and display such proposals and Results.
Dunyha does not broker short term rental transactions, nor does Dunyha act as an agent for the Licensee or any other user. Dunyha does not sell, buy, or negotiate the purchase, sale, or exchange of short term rentals for Rental Agents. Dunyha makes no representations, warranties or guarantees about the information provided on the Service, including without limitation, the Results are an accurate representation of short term rental property. Specifically, Dunyha makes no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service, including the Results. Use of the Service is at the Licensee’s own risk. The Results are not intended, nor should they be used, as a substitute for tax, business, or other professional advice. While Dunyha has attempted to ensure that the information contained on the Service has been obtained from reliable sources, Dunyha is not responsible for any errors or omissions, or for the Results. All information on the Site and in the Service is provided “as is,” with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose. In no event will Dunyha, its related partnerships or corporations, affiliates, or the partners, agents or employees be liable to the Licensee or anyone else for any decision made or action taken in reliance on the information in the Service (including the Results) or for any consequential, special or similar damages, even if advised of the possibility of such damages.
From time to time, the Licensee may provide Dunyha (either on the Licensee’s own accord or at Dunyha’s request) feedback, analysis, suggestions and comments (including, but not limited to, bug reports and test results, and design suggestions or ideas) related to the Service (collectively, “Feedback”). As between the Licensee and Dunyha, all right, title and interest in and to any such Feedback will be owned by Dunyha. The Licensee agrees that Dunyha has the perpetual, irrevocable and worldwide right to use, modify, license, sublicense and otherwise exploit all or part of the Feedback or any derivative in any manner or media now known or devised later without any remuneration, compensation or credit to the Licensee.
(a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Licensee’s Confidential Information includes Content; Dunyha’s Confidential Information includes the Service; and Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information will not include any information which,(1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (3) is received from a third party without breach of any obligation owed to the Disclosing Party, or (4) was independently developed by the Receiving Party.
(b) Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party agrees (1) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (2) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent.
(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(c) Usage of Dunyha’s Confidential Information. No Person is permitted to use Dunyha’s Confidential Information without Dunyha’s consent.
(a) Term of Subscriptions. The term of each Subscription is as long as the Authorized User continues to use the Service (the “Term”), unless expressly stated in writing by Dunyha to the Licensee otherwise. Licensee agrees Subscriptions will renew automatically on a monthly basis until the Licensee provides written notice of cancellation to Dunyha. Cancellation will be effective at the end of the then-current Term. To the extent required under applicable laws, Licensee provides its consent to such auto-renewal of the Term, any automatic debiting arrangements to a credit card or bank account in payment of fees in respect of same, and waives all rights it may have to any further notice of renewal of any Term.
(b) Termination. Licensee may terminate this Agreement at any time upon providing notice to the Dunyha. Dunyha may terminate this Agreement immediately at its discretion and without prior notice.
(c) Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Service granted to the Licensee under this Agreement will immediately terminate and all Fees will become immediately due and payable to Dunyha.
(d) Survival. All terms and provisions of this Agreement, including any exhibits, which by their nature are intended to survive any termination or expiration of this Agreement, will so survive.
Each party represents and warrants to the other party that: (1) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation; (2) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (3) the entering into of this Agreement has been duly authorized by all necessary corporate or organizational action of the applicable party; (4) this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (5) it will abide by all applicable federal, provincial, state and local laws and regulations with respect to online activities, use of Customer Data, end user data and the products and services offered by each party in connection with this Agreement.
THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND DUNYHA MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, INCLUDING ITS CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DUNYHA SPECIFICALLY DISCLAIMS ALL CONDITIONS, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. DUNYHA DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR THAT THE SERVICE WILL WORK WITHOUT INTERRUPTIONS AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICE WILL MEET THE AUTHORIZED USERS’ OR THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR THE SERVICE, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
16. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL DUNYHA’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY THE LICENSEE TO DUNYHA FOR THE SOFTWARE SERVICE DURING THE ONE YEAR PERIOD PRECEDING THE CLAIM GIVING RISE TO LIABILITY. IN NO EVENT WILL DUNYHA HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, DELAYS, INTERRUPTION OR LOSS OF THE SERVICE, BUSINESS, OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION, INCORRECT TAX DATA, FINANCIAL INFORMATION, TARIFF INFORMATION, OR FINANCIAL PROJECTIONS PREDICTED, PREPARED, OR MODELED BY THE SERVICE, OR BREACHES IN SYSTEM SECURITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Licensee will indemnify Dunyha and its directors, officers, employees and representatives (collectively, the “Indemnified Parties”) from any claim, action, suit, proceeding, losses, damages, expenses and obligations of any kind that may be incurred by or brought against the Indemnified Parties in connection to providing the Service, other than arising out of the Indemnified Parties’ gross negligence or willful misconduct. Whenever any such claim shall arise, Licensee will promptly notify Dunyha of the claim and the facts constituting the basis for such claim. The Licensee agrees that the indemnity obligations herein shall survive the termination of this Agreement.
(a) Force majeure. Dunyha will not be responsible or liable to the Licensee or any Guest, or deemed in default or breach by reason of any failure or delay in the performance of its obligations where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, tsunami, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or the Licensee’s or any Authorized User’s equipment, loss and destruction of property or any other circumstances or causes beyond Dunyha’s reasonable control.
(b) Assignment. Authorized Users may not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Dunyha; provided, however, Dunyha may assign this Agreement to a parent, affiliate, subsidiary, or successor to its business, if any. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 18(b) Assignment will be null and void.
(c) U.S. Government Rights. Dunyha provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service includes only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Dunyha to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
(d) Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(e) Contract Interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(f) Governing Law and Jurisdiction. This Agreement is governed by and construed under the laws of the State of Texas without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of courts located in the State of Texas and the parties agree and submit to the exclusive jurisdiction and venue of these courts.
(g) Modification and Waiver. No waiver or modification of this Agreement will be valid unless made in writing and signed by both parties. The waiver of a breach of any term will in no way be construed as a waiver of any other term or breach hereof.
(h) Entire Agreement. This Agreement, together with the Subscription page on the Site, embody the entire understanding of the parties and supersedes any previous or contemporaneous communications, whether oral or written; and may be amended only by a writing signed by both parties.
(i) English Language. The parties confirm that it is their express wish that this Agreement, as well as any other documents related to this Agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations s’y rattachant, soient rédigés en langue anglaise seulement. Las partes confirman que desean expresamente que este Acuerdo, así como cualquier otro documento relacionado con este Acuerdo, incluidos avisos, calendarios y autorizaciones, se hayan redactado y se redactarán únicamente en el idioma inglés.