Terms and conditions – Distributor ticketing portal
This document sets out the terms and conditions on which Nature Parks will provide the Distributor and the Distributor Representatives with access to and use of the Ticketing Portal. By accessing or using the Ticketing Portal or permitting the Distributor Representatives to do so, the Distributor agrees that it has read, understood and will be bound by these terms of use.
1. Definitions and interpretation
1.1 Definitions
In these terms of use, unless the context otherwise requires:
(a) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) (or any equivalent State or Territory legislation).
(b) Attraction means:
(i) the Nature Parks attractions located at Phillip Island and which include the Penguin Parade, the Koala Conservation Reserve, Churchill Island Heritage Farm and Nobbies Centre Antarctic Journey; and
(ii) any other attraction, venue or event for which Nature Parks makes Tickets available for reservation or purchase via the Ticketing Portal.
(c) Commencement Date means the earliest of the date the Distributor or a Distributor Representative first uses the Ticketing Portal or otherwise confirms the Distributor’s acceptance of these terms of use electronically.
(d) Consequential Loss means:
(i) all indirect and consequential Loss;
(ii) all Loss beyond the normal measure of damages; and
(iii) all Loss of revenue, Loss of data, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including
opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
(e) Consumer has the meaning given in section 3 of the Australian Consumer Law.
(f) Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
(g) Distributor means:
(i) a tourism operator or other party who purchases tickets from Nature Parks and distributes them to end-consumers pursuant to the Distributor Agreement; or
(ii) a tourism operator or other party who Nature Parks authorises to use the Ticketing Portal to purchase tickets from Nature Parks.
(h) Distributor Information means all information, data or other content of or relating to the Distributor, the Distributor Representatives or the customers, employees or
commercial partners of the Distributor that is accessible on or via the Ticketing Portal from time to time.
(i) Distributor Representative means a representative of the Distributor who is approved by the Distributor to have access to the Ticketing Portal on behalf of
the Distributor or any other person who accesses or uses the Ticketing Portal from time to time using the Login Details of a User.
(j) Distributor Agreement means any agreement between Nature Parks and the Distributor setting out the terms and conditions under which the Distributor can acquire
tickets from Nature Parks.
(k) Login Details means the username and password or other means of authentication which a User is required to provide in order to be able to access the Ticketing Portal.
(l) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future
or contingent and whether direct loss or Consequential Loss.
(m) Nature Parks Systems means the hardware, software, services or other technology or systems used by Nature Parks in connection with its provision
of the Ticketing Portal.
(n) Nature Parks means Phillip Island Nature Park Board of Management Inc (ABN 88 940 950 118).
(o) Order means any order or other request made by or on behalf of the Distributor to Nature Parks to supply Tickets pursuant to the terms of the Distributor Agreement.
(p) PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
(q) Term has the meaning given in clause 9.1 of these terms of use.
(r) Ticket means a ticket issued by Nature Parks which permits an individual to enter and access a relevant Attraction.
(s) Ticketing Portal means the online portal accessible via https://bookings.penguins.org.au/AgentPortal/Logon which may allow Users to place Orders, and access, view, modify or cancel previously placed Orders.
(t) Unacceptable Content means any:
(i) content which is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable laws, regulations or codes of conduct;
(ii) content which is incorrect, false or misleading;
(iii) files with any viruses, malicious code or other conditions which could damage or interfere with data, hardware or software; or
(iv) content that may expose Nature Parks, its affiliates or users to any harm or liability.
(u) User means the Distributor or a Distributor Representative who accesses or uses the Ticketing Portal from time to time.
1.2 Interpretation
In these terms of use, headings are inserted for convenience only and do not affect the interpretation of these terms of use and, unless the context otherwise requires:
(a) the singular includes the plural and vice versa and if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(b) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions; and
(c) a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association
(whether incorporated or not), a government and a government authority or agency.
2. Distributor Agreement
(a) These terms of use only govern the access to and use of the Ticketing Portal by Users. The sale and purchase of Tickets (including via the Ticketing Portal) will be governed by and subject to the terms of any Distributor Agreement.
(b) These terms of use apply in addition to the Distributor Agreement and are not intended to limit, vary or derogate from the rights or obligations of the parties under the Distributor Agreement.
(c) If there is any inconsistency between these terms of use and the Distributor Agreement, the relevant terms of the Distributor Agreement will prevail to the extent of that inconsistency.
3. Access to Ticketing Portal
3.1 Grant of access
During the Term Nature Parks will permit Users (on a personal, non-exclusive, non-transferable, not-for resale or sub-license, basis) to access and use the Ticketing Portal strictly in accordance with these terms of use. The Distributor acknowledges and agrees that Users must access and use the Ticketing Portal during the Term only for the purchase of Tickets and the management of previously purchased Tickets as part of the internal business purposes of the Distributor.
3.2 Access restrictions
The Distributor must not (and must procure that the Distributor Representatives do not):
(a) permit or allow any person who is not the Distributor or an authorised representative of the Distributor to use the Ticketing Portal;
(b) modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Ticketing Portal or otherwise interfere or attempt to interfere with the proper working of the Ticketing Portal;
(c) upload any Unacceptable Content to the Ticketing Portal;
(d) consent to any other person modifying, adapting, translating, reverse engineering, de-compiling, disassembling or copying the Ticketing Portal;
(e) attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Ticketing Portal; and
(f) publish, communicate or otherwise make any part of the Ticketing Portal publicly available.
3.3 Use obligations
Without limiting the other obligations of the Distributor under these terms of use, the Distributor must (and must procure that the Distributor Representatives):
(a) comply with all reasonable policies regarding the use of the Ticketing Portal that Nature Parks notifies the Distributor of from time to time;
(b) not use the Ticketing Portal in any way or for any purpose other than as contemplated by these terms of use or any Distributor Agreement; and
(c) not allow any other person to have access to the Ticketing Portal, including the end-consumers receiving any Tickets, and not leave any device or computer unattended while they remain logged into the Ticketing Portal.
3.4 Distributor responsibilities
The Distributor will be responsible for:
(a) satisfying itself that the Ticketing Portal is compatible with its own hardware, software and internet and network capabilities and maintaining all hardware, software, and other technology necessary to be able to access and use the Ticketing Portal. To the extent permitted by law and subject always to clause 10.1(a), Nature Parks does provide any warranties or commitments that the Ticketing Portal will be or will remain compatible with any particular device, operating system or operating system version;
(b) taking reasonable steps and precautions to protect the security of its hardware, including ensuring the hardware does not have any viruses, malicious code or other conditions which could damage or interfere with data, hardware, software or the Nature Parks Systems; and
(c) ensuring that it maintains back up or alternate systems for use if the Ticketing Portal is unavailable or is otherwise unable to be used by the User.
3.5 Monitoring use and access
The Distributor acknowledges and agrees that for security, statistical, compliance, regulatory and other related purposes Nature Parks may monitor access to and use of the Ticketing Portal by the Users and record or otherwise capture data or other information relating to access to and use of the Ticketing Portal by Users.
3.6 Distributor Representatives
The Distributor will be responsible to Nature Parks for all use of the Ticketing Portal by the Distributor Representatives or other acts or omissions of Distributor Representatives in respect of the Ticketing Portal (including any acts or omissions that, if done or omitted to be done by the Distributor would breach these terms of use).
4. Orders and Tickets
(a) Users may be able to use the Ticketing Portal to place new Orders, and access, view, modify or cancel existing Orders, subject to any limitations set out in any Distributor Agreement and the availability of such functionality within the Ticketing Portal.
(b) The Distributor will be bound by any Orders, cancellations or other transactions undertaken by Distributor Representatives via the Ticketing Portal from time to time, whether authorised by the Distributor or not.
(c) The Distributor acknowledges and agrees that where a User cancels any Tickets via the Ticketing Portal, such cancellation may not be reversible (even in the event of the User’s error) and Nature Parks makes no representations or guarantees that those cancelled Tickets will remain available for repurchasing by the Distributor or that the Distributor will be able to acquire substitute or replacement tickets.
(b) Nature Parks is entitled to rely on any Orders placed, communications made or transactions undertaken by a User via the Ticketing Portal as having been authorised by the Distributor.
5. Ticketing Portal
5.1 Features and functions
The Distributor acknowledges and agrees that Nature Parks retains the sole discretion regarding the features, functions and other benefits of the Ticketing Portal (which is made available to the Distributor at no cost) and that:
(a) Nature Parks may vary the features, functions and other benefits available to Users in respect of the Ticketing Portal at any time;
(b) not all of the features, functions and other benefits may be available at all times;
(c) some or all of the features, functions and other benefits may be unavailable due to scheduled outages and downtime, disaster recovery processes or due to circumstances beyond the control of Nature Parks; and
(d) Nature Parks is not obliged to develop, release or install any updates, upgrades, patches, bug fixes, new features, new functions, new releases, new versions or other benefits or any improvement in respect of the Ticketing Portal.
6. Login Details
(a) Access to the Ticketing Portal may be denied to the User if the User enters incorrect Login Details.
(b) The Distributor must:
(i) ensure that Login Details are securely maintained and used only by the relevant User and not any other person;
(ii) comply with any reasonable policies, guidelines or other requirements issued by Nature Parks from time to time in any way relating to Login Details;
(iii) immediately notify Nature Parks if Login Details are lost, stolen, missing, misused or are otherwise compromised; and
(iv) not transfer or allow Login Details to be transferred to other individuals or systems and take all reasonable steps to ensure that Login Details are not transferred.
(c) The Distributor acknowledges that Nature Parks may provide access to the Ticket Portal to any person who enters the Login Details and any action or request made by any user of the Login Details will be deemed to have been made by a User without further enquiry.
(d) The Distributor acknowledges and agrees that Nature Parks reserves the right at any time and from time to time to change and/or revoke Login Details by providing the Distributor with written notice where such change and/or revocation is necessary to address security or other similar risks.
7. Intellectual Property
(a) The Distributor acknowledges that, subject to clause 3.1, nothing in these terms of use grants the Distributor any ownership of, or rights in respect of, the Ticketing Portal or the intellectual property in respect of the Ticketing Portal.
(b) The Distributor grants Nature Parks a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, licence to use and reproduce the Distributor Information (and any intellectual property in respect of the Distributor Information) for or in connection with the provision of the Ticketing Portal or for the other activities or operations of Nature Parks reasonably related to the provision of the Ticketing Portal (including the management and administration of Ticket sales and other transactions under the Distributor Agreement).
8. Security
8.1 Security of Ticketing Portal
Nature Parks will take reasonable steps to secure the Ticketing Portal and the Nature Parks Systems. However, to the extent permitted by law and subject always to clause 10.1(a), Nature Parks does not guarantee the security of the Ticketing Portal and Nature Parks will not be liable for any Loss suffered by the Distributor which arises out of or in connection with:
(a) any computer viruses being transferred by, or obtained as a result of, the use of the Ticketing Portal;
(b) any hacking into or other similar attacks on the Ticketing Portal or the Nature Parks Systems; or
(c) any other data security issues in respect of the Ticketing Portal or the Nature Parks Systems.
8.2 Back ups
(a) The Distributor acknowledges that:
(i) Nature Parks is under no obligation to provide back up, archiving, record keeping or other similar services in respect of the Distributor Information and the Distributor is responsible for implementing and maintaining its own back up, archiving, record keeping and data retrieval procedures in respect of the Distributor Information; and
(ii) Nature Parks will not be held liable for any Loss which the Distributor may suffer as a result of any Distributor Information that has been deleted, destroyed or otherwise lost (including where such Distributor Information is deleted by the User).
(b) Notwithstanding clause 8.2(a), the Distributor acknowledges and agrees that Nature Parks may keep and maintain copies of the Distributor Information both during and following termination of these terms of use.
9. Term, suspension and termination
9.1 Term
These terms of use commence on the Commencement Date and will continue until terminated pursuant to this clause 9.
9.2 Suspension and termination
Nature Parks may, at any time, temporarily, or indefinitely, suspend, disable or terminate the Distributor and any Users access to the Ticketing Portal (or any part of it), if:
(a) such suspension or termination is reasonably required for the maintenance (including preventative and routine maintenance), support, operation or security of the Ticketing Portal;
(b) such suspension or termination is reasonably required to address any actual, suspected or potential security risks in respect of the Ticketing Portal;
(c) the Distributor has materially breached any provision of these terms of use and the breach is not capable of remedy;
(d) the Distributor has breached any provision of these terms of use which is capable of remedy and has not remedied the breach within 5 days of receiving notice requiring the breach to be remedied; or
(e) the Distributor Agreement is terminated or expires.
9.3 Nature Parks Termination
Nature Parks may terminate these terms of use and the access rights granted under clause 3.1 at any time and for any reason by giving not less than 30 days’ written notice to the Distributor.
9.4 Distributor termination
The Distributor may terminate these terms of use at any time by notifying Nature Parks in writing and ceasing the use of the Ticketing Portal.
9.5 Post termination obligations
Immediately on termination of these terms of use Nature Parks may disable User’s access and use of the Ticketing Portal and the Distributor must (and must procure that all Distributor Representatives) cease all use of the Ticketing Portal.
9.6 Survival of certain terms
The termination of these terms of use do not operate to terminate any rights or obligations under these terms of use that by their nature are intended to survive termination, including the parties’ rights and obligations under clauses 3.2, 3.5, 7, 8, 9, 10, 11 and 13 of these terms of use.
10. Liability of Nature Parks
(a) If the Distributor is a Consumer and Nature Parks supplies PDH Goods or Services to the Distributor, Nature Parks acknowledges that the Distributor may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the PDH Goods or Services supplied by Nature Parks and nothing in these terms of use should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
(b) If the Distributor is a Consumer and any goods or services supplied by Nature Parks to the Distributor are non PDH Goods or Services, Nature Parks liability to the Distributor in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at Nature Parks discretion) to:
(i) in the case of goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; and
(ii) in the case of services:
(A) the supplying the services again; or
(B) the payment of the cost of having the services supplied again.
(c) Subject to clause 10.1(d), if the Distributor makes a claim against Nature Parks which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the maximum aggregate liability of Nature Parks to the Distributor under or in connection with these terms of use and any claim (including for breach of these terms of use by Nature Parks or any negligent act or omission of Nature Parks) is limited to the total amount of $1,000.
(c) Neither party (First Party) will be liable to the other party (Second Party) for any Consequential Loss incurred by the Second Party under or in connection with these terms of use or as a result of the Distributor’s use of the Ticketing Portal, even if the First Party has been advised of the possibility of such Consequential Loss being incurred.
11. Warranties
To the extent permitted by law and subject always to clause 10.1(a):
(a) Nature Parks does not provide any warranties or guarantees regarding the Ticketing Portal or any of the information stored on or accessible from the Ticketing Portal; and
(b) without limiting the above, Nature Parks does not warrant that the Ticketing Portal or any portion of the Ticketing Portal will meet the Distributor’s requirements, the operation of the Ticketing Portal will be uninterrupted or error-free, the Ticketing Portal will be compatible with the Distributor’s other software or systems. All express or implied warranties in relation to the Ticketing Portal are expressly excluded to the maximum extent permitted by law.
12. Subcontractors
The Distributor acknowledges and agrees that Nature Parks may subcontract the performance of any of its obligations under these terms of use to any sub-contractor without the Distributor’s consent and on such terms and conditions as Nature Parks deems fit from time to time.
13. General provisions
13.1 Governing law
These terms of use will be governed by and construed exclusively under the laws of the State of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and the Federal Court of Australia.
13.2 Other agreements
For the avoidance of doubt, the Distributor and Nature Parks acknowledge and agree that these terms of use will not affect the rights and obligations of the Distributor and Nature Parks with regard to any other agreements to which the Distributor Nature Parks are parties to (including any Distributor Agreement). Any other agreements between the Distributor and Nature Parks will continue to operate pursuant to their terms irrespective of these terms of use.
13.3 Privacy and cookies policies
Nature Parks will collect, handle and store information (including personal information regarding Users and their use of the Ticketing Portal) in accordance with Nature Parks’ privacy policy, a copy of which is available at https://www.penguins.org.au/assets/About/Our-Policies/Privacy.pdf.
13.4 Assignment
A party may not assign or otherwise deal with any of its rights or obligations under these terms of use without the prior written consent of the other party.
13.5 Waiver and variation
Nature Parks may vary the terms of these terms of use by notifying Distributor no less than 30 days prior to the varied terms taking effect (Variation), which notification may be provided on or via the Ticketing Portal. If the Variation adversely affects the Distributor’s rights in a material way, the Distributor may terminate these terms of use by giving written notice to Nature Parks no later than 30 days after the variation takes effect. No failure to exercise or delay in exercising any right given by or under these terms of use to a party constitutes a waiver and the party may still exercise that right in the future.
13.6 Severability
If any provision of these terms of use is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms of use or affecting the validity or enforceability of that provision in any other jurisdiction.