Terms and Conditions

This website www.habitability.com.au and its related services, products, websites (including subdomains and application-based URLs), platforms and applications (Website) is owned and operated by Habitability Pty Ltd ABN 14 649 291 449 (Habitability). 

These terms of service (Terms of Service) set out the terms on which we agree to give you access to use the Website. Other terms and conditions contained in the privacy policy (Privacy Policy) and elsewhere on our Website also form part of our agreement with you. 

Please carefully read these Terms of Service. By using the Website, you agree to be bound by these Terms of Service and our Privacy Policy. If you don’t agree to be bound by these Terms of Service, you must not use the Website. These Terms of Service may be updated by us from time to time, and the updated Terms of Service will apply from the date they are published on the Website.  Each time you use our Website you should revisit these Terms of Service. 

If you are agreeing to these Terms of Service on behalf of someone else, you represent and warrant that that you have the irrevocable authority and agreement of that person to be bound by these Terms of Service.

1. Definitions & Interpretation
   1. Definitions

In these Terms of Service unless inconsistent with the context or subject matter the following terms have the corresponding definitions:  

1. ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
2. Applicable Laws: any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you are located or which in any way govern or affect the use of the Services, including the laws of the State. 
3. Content: includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise uploaded to or stored on the Website by you, transmitted by the Website at your instigation, or supplied by you to us.
4. Intellectual Property: includes without limitation our copyright, trademarks, know-how, processes and concepts, including any content that we develop or publish, the look and feel of the Website, the Website itself and any other website or platform developed by Habitability and the source code for those systems and all intellectual property rights related to such, whether registered or unregistered and whether developed before or after the date of these Terms of Service.
5. Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
6. NDIS: the National Disability Insurance Scheme. 
7. our, us and we: Habitability.
8. Privacy Policy: our privacy policy available on the Website.
9. Operator: any person or entity that operates a Short Term Accommodation option which is listed on the Website.
10. Related Parties: our related entities and related bodies corporate (as those terms are defined in the Corporations Act 2001 (Cth)), our officers, directors, agents, and employees.
11. Service Agreement: has the meaning given under clause 2.3.
12. Services: any services that we provide to you, including the Website. 
13. Short Term Accommodation: the accommodation options, which may be made available for eligible NDIS participants as a component of our short term accommodation and respite Services, and which are listed on the Website from time to time.  
14. State: New South Wales, Australia. 
15. User: any person who uses the Website.
16. you and your: a User.
17. Interpretation

In these Terms of Service, unless inconsistent with the context or subject matter:

1. a reference to a person includes any other legal entity and vice versa;
2. words importing the singular number include the plural number and vice versa;
3. a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
4. headings are for reference purposes only;
5. where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
6. references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
7. no provision of these Terms of Service will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms of Service; 
8. unless otherwise stated, a reference to a monetary amount is a reference to an Australian dollar currency amount; and
9. an obligation of two or more parties binds them jointly and each of them severally. 

2. Using The Website
   1. We provide our Website to facilitate the supply of our Services, to help us connect with you and to provide general information and relevant content you may be interested in. 
   2. You must not use the Website for any purpose other than its intended purpose, and you must not harm our Website in any way. When using the Website you must not act fraudulently, or provide us with false, inaccurate, infringing or misleading information. 
   3. Where you use our Website to browse our directory portal of Short Term Accommodation options or submit a booking enquiry, then the terms of clause 3 will apply to your use of the Website. Please note that booking enquiries do not amount to a booking or promise of Services, and any provision Services in connection with the Short Term Accommodation is subject to the terms of a separate NDIS Service Agreement (Service Agreement) you must enter into before receiving those Services.
   4. Although we provide the Website to inform you about potential Short Term Accommodation options in connection with our Services, we do not own or control any Short Term Accommodation. Such Short Term Accommodation is supplied and controlled by the Operator and not us and we make this information available as the agent of the Operator. Once you have submitted a booking enquiry, we will work with you to build an itinerary of your accommodation provided by such Operators.
   5. Our Services are available only to, and may only be used by, persons who can form legally binding contracts under Applicable Laws. If you do not qualify, please do not use our Services. 
   6. Subject to you complying with these Terms of Service, we will provide our Services to you on the terms set out in these Terms of Service. 
3. DIRECTORY PORTAL and ENQUIRIES for short term ACCOMMODATION 
   1. You acknowledge and agree that any Services from us to you in connection with the Short Term Accommodation as offered on the Website is only available to eligible NDIS participants. You must ensure that all information provided to us (including in a booking form) is accurate and correct.
   2. Once your Short Term Accommodation booking enquiry has been submitted, our Short Term Accommodation Intake & Assessment Coordinator will contact you within 24-48 hours. Should we require additional information or clarification prior to sending you a provisional quote, this will be discussed at time of contact and is an opportunity to discuss your specific requirements and customise your individual Short Term Accommodation requirements.
   3. Prior to approving your provisional quote, please seek confirmation from your plan manager and/or support coordinator (where applicable). If we do not receive such conformation from your plan manager and/or support coordinator, we may not be able to proceed with your booking. 
   4. Upon approval of your quote, we will formalise our Service Agreement within 24-48 hours, which will be sent to you for approval within 48 hours. Once your Service Agreement is signed, our Short Term Accommodation Coordinator will be assigned to you, who will be on hand to assist you through to completion of your booking.
   5. Any Short Term Accommodation options specified in a quote or set out on the Website are subject to availability which may change at any time until the booking has been placed and confirmed by us with the relevant Operator.
   6. Any Short Term Accommodation bookings made on your behalf are subject to the terms set out in your Service Agreement and any terms and conditions of the relevant Operator. 
   7. You acknowledge that if you cancel a booking after it is confirmed, cancellation fees may apply. Please refer to the cancellation terms in your Service Agreement for the terms relating to cancellation of your booking.   
   8. You acknowledge that you are solely responsible for ensuring that you have read and understood any applicable third party terms and conditions. We will not be liable for any Loss or damage suffered by you in connection with such third party terms (regardless of whether we brought these to your attention or not). 
   9. The relevant Operator, and not us, is solely responsible for honouring any confirmed bookings and making available any Short Term Accommodation booked through the Services.
   10. If you are submitting the booking form on behalf of someone else, we rely on the authority of the person making the booking to act on behalf of any other persons that are included in the booking, and that person will bind all such other persons to these Terms.
   11. The information provided to us and displayed on the Website (including any reviews and ratings) is provided to us by Operators and other third parties. Although we take reasonable care to ensure that this information is correct, we cannot and do not guarantee the accuracy of such information. We accept no responsibility for information supplied by Operators and any third parties and it is recommended that you confirm all such information. 
   12. We do not supply, provide, manage or control the Operators or any Short Term Accommodation provided by such Operators and are not responsible for their advertising or otherwise. The relevant Operator is solely responsible for the supply of the Short Term Accommodation to you. We have no control over, and do not ensure, guarantee or provide any warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:
       1. any Short Term Accommodation (including without limitation that such Short Term Accommodation will be suitable for your specific requirements or the quality and suitability of any Short Term Accommodation);
       2. any representations made or information provided by Operators (including without limitation any information provided about Short Term Accommodation on the Website); or
       3. the ability of Operators to undertake their respective obligations.
   13. Because of the foregoing, in the event that you have a dispute with one or more Operators, you release and hold us (and our related parties) harmless from actions, claims, demands and Losses of every kind arising out of or in any way connected with such disputes.
   14. The price of any Short Term Accommodation (including out of pocket expenses and NDIS funded contributions) will be as specified in the quote. Availability and price of any Short Term Accommodation can change at any time until a booking has been placed and confirmed by us. Price changes may occur by reason of matters outside of our control as well. This includes without limitation currency fluctuations, fuel surcharges and taxes. 
4. Prohibited use
   1. The information you provide us and your use of the Website and our Services must not:
      1. violate these Terms of Service;
      2. be for unlawful or dangerous activities or purposes;
      3. be in a way that is fraudulent or deceptive;
      4. be false, inaccurate or misleading;
      5. infringe any third party’s rights (including intellectual or privacy rights);
      6. be defamatory, trade libellous, unlawfully discriminatory, threatening or harassing;
      7. damage the credibility of the Website or us or dilute, tarnish, or otherwise harm our brand in any way;
      8. create liability for us or cause us to lose (in whole or in part) the services or custom of our internet service provider, other users or other suppliers;
      9. distribute any virus, trojan horse, worms or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Website;
      10. distribute or post spam;
      11. be in a way that uses any robot, spider, scraper, data mining tools, data gathering an extraction tools or other automated means to access our Services;
      12. be in any manner which could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of this Website;
      13. be for any purposes that are not permitted by these Terms of Service or in any way that is inconsistent with the purpose of the Website, or in a manner that falsely implies Habitability endorsement, partnership or otherwise misleads others as to your affiliation with Habitability;
      14. collect a user’s information and harass them; or
      15. violate any Applicable Law (including those governing consumer protection, unfair competition, criminal law, antidiscrimination or trade practices law).
5. your duties and responsibilities
   1. You must promptly provide all information, documentation, approvals and assistance reasonably required by us in order for us to provide the Services as soon as possible on being requested to do so. This includes, without limitation, providing licence details and approving any booking terms in a quote. 
   2. You must ensure that you are aware of any health requirements and recommended precautions relevant to any travel and accommodation bookings. We are not responsible for providing any information and accept no liability for any Loss or damage suffered as a result of failure of being aware of health requirements.
   3. Travel documents include any document used to confirm an arrangement with an Operator. An incorrect name on a travel document may result in an inability to use that booking and the booking cancelled. You are solely responsible for ensuring the correct details are contained within them, and we accept no liability for any loss or damage which you may suffer as a result of incorrect details on travel documents.
   4. We recommend that you take out appropriate travel insurance. We are not responsible for any failure by you to acquire adequate insurance.
   5. If you have any special requirements for bookings, such as disability access requests, seatings requests or food allergy requests, you should inform us of these prior to booking. We will use reasonable endeavours to ensure the booking includes such requests, however cannot guarantee that the relevant Operator will comply with the request.
   6. You must not, in connection with the Services:
      1. make any fraudulent, speculative or false enquiries, bookings, reservations or requests; or
      2. impersonate any person or entity, or falsify or otherwise misrepresent your affiliation or non-affiliation with any person or entity.
6. Access and Termination
   1. We reserve the right, at any time and without prior notice to remove or disable:
      1. access to this Website or any part of it for any reason; and
      2. any User that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms of Service or otherwise harmful to the Website or the interests of other Users, 

and we will not be liable to you for any Loss that you incur in the event that we do this. 

2. The termination of your access to the Website is without prejudice to the rights, liabilities and obligations of the parties that arose prior to the termination unless otherwise agreed by us. 

7. Intellectual Property Rights 
   1. You acknowledge and agree that:
      1. Habitability owns all right, title and interest in and to the Intellectual Property of the Website and the Services (including any itinerary and other documents or materials provided during the provision of the Services) and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in these Terms of Service;
      2. with respect to any information provided by third parties and displayed on the Website, the relevant licensor will own all right, title and interest in and to such materials;
      3. you will not copy, reproduce, alter, modify, create derivative works, or publicly display any Habitability Intellectual Property except with the prior written permission of Habitability or the appropriate third party authorised to grant such permission and when doing so you must adequately acknowledge us and, in the case of websites, include a link from your website to our Website;
      4. you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, sublicensable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate any Content in order to provide our Services; 
      5. you warrant that any Content you provide us or otherwise transmit through the Website with will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party; and
      6. you must not falsely express or imply a relationship between you and us.
8. Disclaimer
   1. You acknowledge and agree that your use of this Website and the Services is at your own risk. We provide our Services on an “as-is” basis and make no representations about the suitability, reliability, availability, timeliness, and accuracy of anything contained in this Website. Subject to the other terms of this clause and to the maximum extent permitted by Applicable Laws, anything contained in this Website is without warranty of any kind and we expressly exclude such warranties. 
   2. You acknowledge and agree that:
      1. Habitability is does not own or control and provides no warranty over the Short Term Accommodation or the Operators;
      2. any advice, recommendation, information, assistance provided by us in relation to the Services supplied is given in good faith, is based on our own knowledge and experience and it shall be your responsibility to confirm the accuracy and reliability of the same in light of the use to which you make or intend to make of the Services. Such advice, recommendations, information and assistance is followed or acted upon entirely at your own risk, and accordingly we shall not be liable for any such advice or recommendation;
      3. we reserve the right to make any changes in the specification of the Services which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Services are to be supplied to our specification, which do not materially affect their quality or performance;
      4. while we make every effort to ensure that the information on the Website is as up-to-date and accurate as possible, you acknowledge and agree that we do not (to the maximum extent permitted by law) guarantee that:
         1. the Website will be error-free or uninterrupted, or that your use of the Website will provide any specific results;
         2. the Website will be accessible at all times;
         3. information you receive or supply through the Website will be secure or confidential; or
         4. any information provided through the Website is accurate or true.

We reserve the right to change any information or functionality on the Website by updating the Website at any time without notice, including any Short Term Accommodation information or other content; and

5. we do not represent or warrant that your use of the Services will meet your particular requirements, whether those requirements are disclosed to us or not.
6. The Website may contain links to other websites that are not our responsibility. We have no control over the content of the linked websites and we are not responsible for it. Inclusion of any linked website on the Website does not imply our approval or endorsement of the linked website.
7. privacy

By providing personal information to us, you agree that our Privacy Policy will apply to how we handle your personal information and you consent to the collection, use and disclosure of your personal information as detailed in the Privacy Policy

10. Security and access

You are solely responsible for any information that you transmit to us. Whilst we use reasonable endeavours to maintain the security of the Website to Australian standards, we do not guarantee the security of the Website, our records, or any information you submit to us. We disclaim all liability for any computer virus or technological problems or other loss that you may suffer as a result of the browsing or downloading of any files from our Website, or from any data breach, compromise or misuse of your data that is provided to us in connection with the Website. In order to use the Website, you need to connect to the internet and you are solely responsible for your connection and all fees associated with such connection/access.

11. Limitation of Liability
    1. Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms of Service to the maximum extent permitted by law.
    2. Without limitation to clause 11.1, we will not be liable for any Loss to you or any other person, due to or arising directly or indirectly from:
       1. your use or inability to use this Website in any way;
       2. your reliance on the Website;
       3. the delivery or non-delivery of any accommodation services (including Short Term Accommodation);
       4. any bookings of Short Term Accommodation;
       5. any act, omission or default, whether negligent or otherwise of any Operator or third party;
       6. any Loss occasioned by any Operator or third party;
       7. any Content; or
       8. any action taken on your account.
    3. For the avoidance of doubt as agent for the Operator we are not liable to you for a breach of obligations by the Operator in providing the Client any Short Term Accommodation. The Operator is solely liable for a breach of obligations in providing you any Short Term Accommodation.
    4. Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms of Service, including any breach by us of these Terms of Service, however arising, in contract, in tort (including negligence), under any statute, custom, law or on any other basis is limited to $1.
    5. We exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with the Services.
    6. Nothing in these Terms of Service is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
    7. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option to the resupply of the services or the payment of the cost of resupply.
    8. Where you are or may be entitled to recover from a third party (such as an insurer) any sum in respect of any matter or event that could give rise to a claim under these Terms of Service, you must:
       1. use your best endeavours to recover that sum before making the claim;
       2. keep us informed of the conduct of such recovery; and
       3. reduce the amount of the claim to the extent that sums are recovered.
    9. This limitation of liability applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms of Service or your use of our Services. 
12. Indemnity
    1. You agree to indemnify and hold us and our Related Parties, harmless from and against any actions, claims, demands, proceedings, Losses of every kind and claims made by third parties, due to or arising out of:
       1. your use or inability to use this Website in any way;
       2. any booking of Short Term Accommodation;
       3. any Operator’s breach or negligent performance or failure or delay to provide any Short Term Accommodation or perform their obligations under a relevant arrangement;
       4. your disputes with Operators;
       5. any Loss, damage or claim made against us by a third party:
          1. for actual or alleged infringement of a third party’s intellectual property rights arising out of the supply or use of the Website by you;
          2. for death, personal injury, illness or damage to property resulting from any Short Term Accommodation,

to the extent that the claim results from the breach, negligent performance or failure or delay in performance of these Terms of Service by you;

6. the enforcement of these Terms of Service; and
7. any act, omission or wilful misconduct of yours (including any negligent act or omission).

2. Any amounts payable under this indemnity must be paid to us immediately on demand without set-off or counter claim. 
3. Except where expressly stated to the contrary in these Terms of Service, the rights of a party under this clause are in addition to any other rights available to that party whether those rights are provided for under these Terms of Service or by law.
4. It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause.
5. The indemnities in this clause:
   1. are continuing obligations on you, independent from your other obligations under these Terms of Service and survive termination or expiry of these Terms of Service; and
   2. are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability. 
6. General provisions
   1. No Waiver

No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms of Service unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

2. Assignment, Novation and Other Dealings  
   1. Any rights of Habitability that arise out of or under these Terms of Service are assignable and capable of novation by that party in its discretion and without notice or your prior written consent.
   2. Any rights of any User that arise out of or under these Terms of Service are not assignable or capable of novation by the User without the prior written consent of Habitability.
3. Severability 
   1. If the whole or any part of a provision of these Terms of Service is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
   2. Clause 13.3(a) does not apply if the severance of a provision of these Terms of Service in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms of Service as determined by Habitability. 
4. No Merger

On completion or termination of these Terms of Service, the rights and obligations of the parties set out in these Terms of Service will not merge and any provision that has not been fulfilled remains in force.

5. Survival

Any clause which by its nature is intended to survive termination or expiry of these Terms of Service will survive such termination or expiry. 

6. Further Action

Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms of Service and the transactions contemplated by these Terms of Service.

7. Relationship of the Parties  
   1. Nothing in these Terms of Service gives a party authority to bind any other party in any way.
   2. Nothing in these Terms of Service imposes any fiduciary duties on a party in relation to any other party.
8. Remedies Cumulative  

Except as provided in these Terms of Service and permitted by law, the rights, powers and remedies provided in these Terms of Service are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms of Service.

9. Entire Agreement  

These Terms of Service states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

10. No Reliance  

No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms of Service.

11. Governing Law and Jurisdiction  
    1. These Terms of Service are governed by the law in force in the State.
    2. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms of Service.
    3. Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 13.11(a) on the basis that:
       1. any proceeding arising out of or in connection with these Terms of Service has been brought in an inconvenient forum; or
       2. the courts described in clause 13.11(a) do not have jurisdiction.