BOOKING TERMS & CONDITIONS FOR THE SUPPLY OF GOODS AND / OR SERVICES (LAST MODIFIED 4 MAY 2021)
This Agreement is executed at the time and date that the Tenant makes a Booking with the Agent for Short Term Rental Accommodation Services and associated services (“the Services”).
Kangaroo Valley and Southern Highlands Escapes Pty Ltd.
and the tenant making a Booking and / or purchasing the Services.
It is agreed as follows:
- In this Agreement, unless the context specifically requires otherwise:
“The Agent” includes its officers and employees, where those persons act as representatives of the Agent.
“Agreement” means the sum of these Booking Terms of Business and an Offer by the Agent to the Tenant referring to these Terms of Business. Where there is any conflict between these Terms of Business and a Proposal, these Booking Terms of Business shall prevail. Where Services are contracted via an Offer made through a third party booking website or channel, this Agreement may be amended by terms and conditions advertised by that third party booking website or channel.
“Booking” means the reservation of the Premises by the Tenant for Short-Term Rental Accommodation purposes for an Occupancy period in accordance with an Offer by the Agent.
“Contractor” means an independent contractor engaged by the Agent that provides Services to a Tenant on behalf of the Agent, however legally constituted.
“Goods” means any materials used by the Agent or its Contractors when providing the Services or sold to the Tenant by the Agent for use by the Tenant or other parties. For the avoidance of doubt, goods sold or otherwise provided by Contractors or other parties that are not supplied by or at the direction of the Agent are excluded from this Agreement.
“Short-Term Rental Accommodation” means accommodation that is booked subject to arrangements within the meaning of Section 54A of the Fair Trading Act 1987 (NSW).
- The following interpretative rules apply unless the context requires otherwise:
- The singular includes the plural and conversely;
- A gender includes all genders;
- If a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- A reference to a person, corporation, trust, unincorporated body or other entity includes any of them;
- A reference to a clause or schedule is a reference to a clause of, or a schedule to, this Agreement;
- All prices quoted in Offers and / or this Agreement will include GST;
- A reference to A$, $A, dollar or $ is to Australian currency;
- A reference to time is to Australian Eastern Standard or Summer Time, as may apply at the relevant date in the state of New South Wales;
- A reference to an agreement or contract is to the Agreement;
- A reference to legislation or to a provision of legislation includes a modification or re- enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
- A reference to “GST”, “input tax credit”, “supply”, “tax invoice” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999; and
- Headings are for convenience only and do not affect interpretation.
- This Agreement will begin on the Start Date and will continue for the Term.
BOOKINGS & SERVICES
- By making a Booking the Tenant confirms that it has accepted this Agreement in its entirety and that it has legal capacity and authority to enter into this Agreement.
- The natural person who makes a Booking will be deemed to be the Primary Tenant until and unless the Agent is notified otherwise who that natural person is. Where the natural person making a Booking nominates another natural person as the Primary Tenant they warrant that they have the legal capacity and authority to advise that nomination to the Agent.
- The Primary Tenant warrants that they are 21 years of age or over and acknowledges that they will be held personally responsible for the conduct of all persons who occupy, visit or attend the Premises during an Occupancy period.
- The Primary Tenant must provide acceptable photographic identification (eg current legible Passport or Drivers Licence image) and a valid debit or credit card with sufficient fund limit available in their own name when making a Booking. The Agent’s Tenant registration system will securely store the photographic identification and credit card details for 14 days. All adults occupying, visiting or attending the Premises may also be required to register, at the Agent’s sole discretion.
- Advance Bookings may be advertised and accepted by the Agent, acting in good faith. However the Agent reserves the right to cancel a Booking in the following circumstances:
- The sale or long term lease of the Premises;
- An increase in rent or other charges imposed by the Principal that is not accepted by the Tenant;
- The Premises not being accessible and / or habitable; or
- The Premises not being otherwise fit for the purpose Offered.
- While an Agent may publicly Offer the Premises for Booking it may refuse to accept and confirm a Booking from any persons at any time, acting in its sole discretion, eg because of information obtained from tenancy reference databases.
- Should a Tenant wish to change a Booking after it has been confirmed the Agent may charge an administration fee of $100.
CODE OF CONDUCT
- From 18 December 2020 the Short Term Rental Accommodation industry in NSW has been governed by a “Code of Conduct” (“the Code”) – refer:
- The Tenant warrants that it has reviewed the Code prior to making a Booking and agrees that it will comply with the strict requirements set out in Section 2.5 of the Code that relate to the requirements that “guests” must:
- Act lawfully;
- Comply with their obligations to neighbours;
- Comply with their responsibilities to “hosts”; and
- Be responsible for the conduct of “visitors”.
Guests, hosts and visitors for the purposes of this clause are defined as per Part C of the Code.
- The Agent will also provide a copy of the Code to all Tenants at the time of Booking.
- The Agent and Tenant each acknowledge that breaches of the Code may be an offence under the Code and undertake that they will do everything in their power to comply with their respective obligations, both to each other and to other parties that have standing under the Code.
- The Tenant acknowledges that personal information that it provides (or is provided by other sources) (“the Personal Information”) is necessary for the Agent to verify the applicant’s identity and accept, process and confirm a Booking.
- The Personal Information may be disclosed for a valid purpose to other parties including (but not limited to) the Principal, our employers, our Contractors, police and emergency services, referees, financial institutions, other Agents, third party operators of tenancy reference databases and other third parties as required by law. Information already held on tenancy reference databases may also be disclosed by the operators of those databases to the Agent or the Principal. If the Tenant would like to access his/her personal information held by the Agent, they can request that. The Tenant can also correct this information if it is inaccurate, incomplete or out of date.
- The advertised and / or Offered description of the Premises and / or Services by the Agent has been provided in good faith and no responsibility for misinterpretation by the Tenant or other parties, whether wilful or not, will be accepted by the Agent.
- The Tenant acknowledges that it has independently determined that the Premises and the Services as advertised or Offered are suitable for the Tenant’s Short-Term Rental Accommodation purposes, whether or not those purposes have been disclosed to the Agent at any time.
- The Agent warrants that the Premises are registered for Short-Term Rental Accommodation purposes where they are legally required to be.
- No refunds will be given for used or unused Services if the Tenant or any other parties are dissatisfied with the Premises or the Services, for any reason, unless the Premises are not habitable.
RENTS AND CHARGES
- All rents and charges included in an Offer are current at the time and date of that Offer and are subject to change without notice.
- The Agent may charge a Booking Fee as per the Offer in addition to rents and charges payable for Occupancy of the Premises.
DEPOSITS, PAYMENTS AND SECURITY BONDS
- All Bookings must be secured by a Deposit Payment of half the total value of the Booking rent and charges before it is confirmed. If the Deposit Payment is not paid by the due date the booking will be automatically cancelled.
- The final balance of rent and charges payable for the Booking is due 30 days prior to arrival. Bookings will be cancelled if the final payment is not received in accordance with the above terms.
- Acceptable payment methods include: SecurePay, direct debit of the Tenant’s bank account, and credit cards or debit cards.
- Credit and debit card charges may be subject to a service fee equivalent to the merchant fee paid by the Agent, where the Offer so specifies.
- The Tenant agrees to the Agent holding an amount of up to $3,000 (“Security Deposit”) either via a charge against a nominated debit or credit card or through a cash bond where stipulated on booking. The Tenant acknowledges that the Agent may be obliged by a Principal to offer one, the other or both methods. Security Deposits charged against debit or credit cards may be charged in full or as a pre-authorised charge only, at the Agent’s sole discretion.
- Security Deposits will only be released when the Premises have been inspected and any additional charges relating to Occupancy owed by the Tenant to either the Agent or the Principal (“Additional Charges”) have been calculated and deducted. Any Additional Charges exceeding Security Deposits available will be invoiced by the Agent to the Primary Tenant and are payable on demand.
- Security Deposits will usually be refunded by the Agent approximately 7 to 10 days after the end of the Occupancy period but may take longer where the circumstances of any inspections and / or deductions for Additional Charges so require. The Agent takes no responsibility for any delays in the refund of debit or credit charged Security Deposits or the release of pre-authorisation charges by banks or other parties beyond the Agent’s control. The Tenant acknowledges that such refund timings and potential delays are acceptable, as a condition of Booking.
- The Agent will deduct a processing fee of $80 where it is required to calculate and deduct Additional Charges.
- The Agent reserves the right to take action in the NSW Civil and Administrative Tribunal to recover any Additional Charges that cannot be recovered from a Security Deposit and where the Primary Tenant fails to pay those Additional Charges on demand.
- Tax Invoices will be issued for all rents and / or charges (including Additional Charges) paid by Tenants on request.
- Where the Tenant notifies the Agent more than 30 days before Occupancy that it wishes to cancel or shorten a Booking, their deposit will be proportionally refunded less a $150 administration fee ($250 where Bookings relate to Easter long weekend and / or NSW School Holiday periods) (“Cancellation Fee”).
- If Bookings are cancelled or shortened by the Tenant within 30 days before Occupancy no deposit will be refunded unless the Premisesare rebooked by a third party on at least equal financial terms, in which case the deposit will be refunded less the Cancellation Fee.
- For the avoidance of doubt, where Bookings are shortened with less than 30 days’ notice, the Tenant is not entitled to a proportional refund of its deposit unless the Premises are rebooked by a third party on at least equal financial terms for that surrendered Occupancy period, in which case the proportion of the deposit relating to the surrendered Occupancy Period will be refunded less the Cancellation Fee.
- This Agreement may be terminated or suspended at any time by the Agent, at its sole discretion, where a Force Majeure event (including but not limited to acts of war, terrorism, civil unrest, pandemics, outbreaks of disease, natural disasters, industrial action, loss of key staff or production equipment or supplies and actions of governments or regulators adversely affecting that Party’s operations) prevents the Agent from fulfilling its obligations, in which case all deposits paid by Tenants for affected Bookings will be refunded less Cancellation Fees (where terminated) or retained without deduction (where suspended).
- The Agent warrants that it has a “COVID-19 Safe Plan” in place for all Premises Offered for Bookings.
- Notwithstanding the Force Majeure provisions of this Agreement, if Government imposed lockdowns or travel restrictions relating to COVID-19 prevent Occupancy in accordance with a Booking that has been confirmed prior to such lockdown or travel restriction, the Agent will:
- Provide the Tenant with a free postponement as a credit voucher to be used within 24 months from the Occupancy date of the original Booking; or
- Reschedule the Occupancy with no additional fees being payable by the Tenant.
- Tenants are encouraged to take out Travel Insurance to mitigate any losses that may be incurred due to cancellations, suspensions and other risks relating to Bookings or Occupancies.
- The Premises may only be occupied by the Tenant for Short-Term Rental Accommodation purposes only, and only for the period stipulated in the Booking confirmation.
- The maximum number of persons occupying, visiting or attending the Premises must be agreed with the Agent at the time of the Booking.
- Overcrowding of properties will result in the immediate termination of Bookings and no refunds will be provided for unused Services. The number of persons occupying the Premises must not exceed the number stated in the Booking confirmation. If an excess number of persons have occupied, attended or otherwise used the Premises then an additional rental fee will become payable by the Tenant, calculated by the Agent using its sole discretion.
- The property will be available for occupancy from 3.00pm on arrival day and is to be vacated by 11.00am on the day of departure unless prior written arrangements are made with the Agent. Failure to vacate at the required time will incur a penalty equivalent to one night’s rent, calculated based on the then-current casual rent for the night following the day of departure.
- The Tenant and other authorised persons occupying the Premises must familiarise themselves with Evacuation Diagrams immediately on arrival and any other safety instructions and seek clarification from the Agent if they are unsure of any requirements.
- The Tenant must advise the Agent on the day of arrival regarding any damaged or broken building structures, furniture, fittings, appliances or other property at the Premises. All movable goods located at the Premises have been inventoried and will be checked by the Agent or its Contractor after the Occupancy.
PROHIBITED PARTIES, FUNCTIONS AND GATHERINGS
- Premises are generally offered for private holiday purposes only. Parties, functions and gatherings involving persons who are not permitted to occupy the Premises are therefore strictly prohibited unless the Premises are specifically Offered for that purpose.
- If the Agent forms the view that an unauthorised party, function or gathering is taking (or has taken) place, all persons occupying or visiting the Premises will be evicted immediately and no refunds for unused Services will be given. The Agent reserves its rights to appoint security guards or other appropriately qualified persons to enforce evictions and advise police if it believes that it is necessary to do so. Additional Charges will also be charged for any out of pocket costs incurred by the Agent as a result of a prohibited party, function or gathering.
CLEANING & GARBAGE DISPOSAL
- The Premises are to be left in the same condition as at the commencement of Occupancy. Additional Charges of $60 will be charged to clean and / or tidy Premises left in an unsatisfactory condition, including (without limitation):
- Disposing of any rubbish / food scraps left in internal garbage bins;
- Cleaning and putting away crockery or kitchen utensils; or
- Cleaning barbecues.
- Not all Premises have Council provided garbage bins. Where they are provided they must be used in accordance with their description and function, eg one for recycling and one for other household waste.
- Council provided garbage bins must be put out for collection by Tenants if they occupy the Premises on collection days.
- Any excess garbage must be taken by the Tenant to the Bendeela Road Transfer Station in Kangaroo Valley (opening hours are restricted and the Tenant must check with the Council or Agent if such disposal is required). If any excess garbage removal is required by the Agent after the Tenant departs there will be a minimum Additional Charge of $40.
- Where Premises are outside Council Collection areas, all garbage should be placed in plastic bags and taken by the Tenant for disposal elsewhere on departure. Any rubbish removal after the Tenant departs will incur a minimum Additional Charge of $40, depending on rubbish quantity and type (to keep those charges down, please separate recyclables from other household waste).
USAGE, SAFETY AND DAMAGE
- Furniture, fixtures and fittings must not be moved from their original locations within the Premises or altered in any way.
- Powerpoints must not be overloaded and all appliances must be turned off when not in use (except those requiring permanent power supplies, eg refrigerators and / or alarms).
- All external doors and windows must be locked and secured to the maximum extent possible when the Premises are unattended during an Occupancy period.
- All children must be supervised in the vicinity of pools, rivers, creeks, dams, waterfalls, artificial water features and baths on Premises at all times. Pools must not be used after 10pm and before 6am. No persons may voluntarily enter a river, creek, dam, waterfall or other natural watercourse on the Premises for any purpose at any time.
- No inherently dangerous motoring, sporting or recreational pursuits or practices are permitted on the Premises, including (without limitation) intoxicated driving, trailbike or quadbike riding, shooting or archery, rock-climbing, treeclimbing, canyoning or rafting, unless the Premises are specifically Offered as being suitable for such pursuits or practices.
- Breaches of the clauses of this Agreement relating to Usage, Safety and Damages may, where sufficiently material, result in immediate eviction and Additional Charges for costs incurred or losses suffered because of those breaches may be recovered from Security Deposits or by invoicing the Primary Tenant.
- Costs incurred by the Agent to rectify damage and / or breakages or to replace lost property owned by Principals will be recharged to the Tenant as Additional Charges and may be deducted from Security Bonds or otherwise invoiced and require additional payment by the Primary Tenant on demand.
- No responsibility is accepted by either the Agent or the Principal for the loss of or damage to the Tenant’s property on the Premises, for any reason. For the avoidance of doubt, the Principal’s and Agent’s insurances will not cover such claims.
EMERGENCY SERVICES, BUSHFIRES AND NATURAL DISASTERS
- The Tenant acknowledges that the Premises are located in a regional area with potentially limited and / or delayed access by police, ambulance, fire and other emergency services, while also having inherently higher risks from bushfires and some other natural disasters from time to time compared to metropolitan regions.
- The Tenant accepts that Occupancy of the Premises may require appropriate safety planning and preparations both before and during the Occupancy period, depending on weather and other circumstances prevailing at that time, and holds the Agent harmless and accepts that the Agent has no liability for Loss of any kind incurred by the Tenant or any other party because of emergency service unavailability or the effects of bushfires or other natural disasters.
- The Agent warrants that the Premises comply with the Short-Term Rental Accommodation Fire Safety Standard and that it will provide a briefing on known bushfire and natural disaster risks at the time of Occupancy, but cannot guarantee that compliance with that Standard or communication of those risks will be sufficient to prevent the Tenant or other parties suffering losses in the event of a fire, natural disaster or other emergency.[M41]
- The Tenant acknowledges that they are obliged to follow all directions given by police, fire and other emergency services in the event of a bushfire or other natural disaster, including the potential order to either evacuate or to take shelter in place.
- For the avoidance of doubt, the Tenant and other parties occupying, attending or visiting the Premises, whether authorised or not, always do so at their own risk.
REPAIRS AND MAINTENANCE
- All repairs and maintenance requirements must be reported immediately to the Agent using the telephone numbers provided. The Tenant agrees to allow the Agent or its Contractors to enter the Premises to arrange necessary repairs, at the Agent’s sole discretion.
- The Agent will use all reasonable endeavours to have appliances repaired or replaced at the earliest opportunity however the Tenant acknowledges that repair or replacement will not always be practical during the Occupancy period. No responsibility is taken by the Agent in such circumstances and there will be no entitlement to refunds or discounts, provided that the Premises remain habitable. For the avoidance of doubt, Premises will be habitable if inbuilt heating or cooling systems and cooking and / or refrigeration appliances are functional. The non-availability or breakdown of dishwashers, washing machines and / or clothes dryers will not affect the habitability of the Premises, even where such appliances are advertised or promoted as features of the Premises.
- The Agent is not responsible for disturbances suffered by Tenants, eg because of external noise and / or visual pollution or building and construction work being done on neighbouring properties or access roads, provided that the Premises remain habitable and accessible.
INTERNET AND TELEPHONE
- Internet is provided at some of Premises as a convenience to Tenants, for the purpose of viewing e-mails, accessing social media and web browsing, however uninterrupted and / or high speed connections cannot be guaranteed.
- The Tenant acknowledges the Agent’s advice that Telstra usually provides the most reliable service in the region where the Premises are located, for both internet and mobile coverage.
- The Agent is not responsible for any loss of amenity or any other Loss if internet and / or telephone services are unavailable or otherwise unsatisfactory during Occupancy.
PETS, WILDLIFE AND SMOKING
- Pets are NOT generally permitted on the Premises, in either indoor or outdoor areas.
- The written approval of both the Agent and the Principal will be required in advance if the Tenant wishes to bring a commonly accepted domestic pet to the Premises. Applications must be made prior to Booking confirmation and additional charges may apply. Tenants will be evicted immediately if an unauthorised pet is kept at the Premises.
- Farm and wild animals owned or under the control of Tenants or other persons occupying or visiting the Premises are prohibited at all times.
- Where authorised or unauthorised pets are brought inside the Premises an Additional Charge of $100 for cleaning will be charged by the Agent to the Tenant.
- Where pets are permitted on the Premises, the following rules apply:
- Any spills and stains from faeces, urine and / or vomit inside the Premises must be cleaned immediately;
- All solid faeces and vomit must be securely wrapped and placed in outside garbage bins (or disposed off the Premises, where garbage bins are not available);
- All pet bedding must be supplied and removed by owners;
- Shedding of hair must be minimised wherever possible;
- Pets are NOT permitted to sleep, stand or sit on furniture and / or bedding, or scratch or otherwise damage furniture and fittings; and
- Pets must not be left unattended at the Premises, whether they are left inside or outside.
- Tenants acknowledge that the Premises are located in a region where wildlife (including birds, animals, snakes, lizards and insects) is common. It is a condition of Booking that the Tenant accepts that all persons that Occupy the Premises do so at their own risk from wildlife and that they will also take all necessary steps to prevent wildlife from entering Premises and to observe all laws and regulations relating to their dealings with wildlife.
- All Premises are NON SMOKING only, in all internal and undercover areas. Any evidence that smoking has occurred during an Occupancy in an internal or undercover area will incur Additional Charges for cleaning of at least $200.
- Additional Charges will be charged where Premises have been left in an unsatisfactory condition and the Agent incurs out of pocket costs to restore the condition of the Premises.
CRIMINAL ACTIVITIES AND OFFENSIVE BEHAVIOUR
- Occupancy or use of the Premises for any criminal activity (including usage of internet services provided) is strictly prohibited and may result in immediate eviction without refund of any payments for unused Services and referral to law enforcement services for potential prosecution.
- The Tenant and other persons occupying, visiting or attending the Premises must refrain from all behaviour that is likely to offend, disturb or infringe the property and / or personal rights of neighbours, eg (but not limited to) vulgar or threatening interpersonal communication, noise and / or visual pollution and acts of trespass.
- The safekeeping of keys is the sole responsibility of the Primary Tenant during the Occupancy.
- If keys are lost, locks will be changed and the Tenant will be charged up to $300 for any keys replaced. A fee of $100 will be charged if the Agent is required to attend the Premises to retrieve keys that are locked inside.
- All keys are to be returned to the Agent immediately upon check out or otherwise safely surrendered according to the Agent’s instructions.
- The Agent warrants that it (or its Contractor) will inspect the Premises at the earliest reasonable opportunity after the end of Occupancy.
- Tenants must check their personal property carefully before leaving the Premises for completeness and remove all such items. The Agent cannot guarantee that any items left at the Premises will be found and returned at a later date. The forwarding of lost property will incur a Lost Property Forwarding Fee of not less than $40.
- The Agent reserves the right to dispose of any personal property that it determines, in its sole discretion, to be wilfully abandoned and any costs incurred for that disposal will be charged to the Tenant as Additional Charges.
OTHER PARTIES’ SERVICES
- Tenants may procure personal services from other parties at the Premises that do not inherently conflict with the Services offered by the Agent or breach a provision of this Agreement, provided that:
- Those parties hold Public Liability Insurance of at least $2m that will cover activities carried on at the Premises and benefit the Agent and / or the Principal if a claim is made;
- Those parties remain under the direct supervision of the Tenant at all times; and
- Those parties do not do anything that is prohibited (or fail to do anything that is required) by this Agreement, where applicable.
- In no circumstances will the Agent be liable for any indirect or consequential Losses or for any damages for death, bodily or personal injury, damage to property and / or emotional distress arising out of or in connection with a Booking or an Occupancy. This limitation applies to all claims for damages including negligence, even if the Agent has been advised of the possibility of such damage.
- No liability will be accepted by the Agent for any Loss or injury to the Tenant or other parties suffered in connection with the Premises during an Occupancy. This limitation applies to but is not limited to Losses or injuries caused by bushfires, other fires, storms, floods, landslides, sinkholes, treefalls, trips, attacks by animals, birds or insects, adverse weather, pandemics, utility outages, terrorist and war activity.
GENERAL AGREEMENT PROVISIONS
- The Parties agree that:
- This Agreement constitutes the entire agreement of the Parties with respect to its subject matter and supersedes all prior oral or written representations and agreements.
- This Agreement may only be amended in writing by the Parties.
- A Tenant may not assign its rights or obligations arising under this Agreement without the prior written consent of the Agent.
- A waiver by either Party of a breach of any provision of this Agreement does not constitute a waiver of any succeeding breach of the same or any other provision.
- If any provision or part provision of this Agreement is invalid or unenforceable, such provision shall be deemed deleted but only to the extent necessary and the remaining provisions of this Agreement shall remain in full force and effect.
- The Parties are independent contracting parties, and nothing in this Agreement shall make any Party the agent, partner or legal representative of the other Party for any purpose whatsoever, nor does it grant either Party any authority to assume or create any obligation on behalf of or in the name of the other Party on any account whatsoever.
- This Agreement is governed by the laws of the State of New South Wales, Australia. The Parties submit to the jurisdiction of the courts of the State of New South Wales and any courts which may hear appeals from those courts.
- All Notices must be communicated in writing using the e-mail addresses notified by the Agent and the Tenant to each other when making a Booking or as otherwise advised after that time. Notices will be determined to have been received at 6pm if sent electronically prior to that time on that day.