Services Agreement
This agreement (“Agreement”) binds you or the entity you represent (“you”) if are a Kebab store owner owner and/or other goods and/or services and you use the Kebab SW Software. This Agreement contains the terms and conditions that govern your access to and use of the Kebab SW Software and Services and is made between Visda Pty Ltd trading as Kebab SW and you. This Agreement commences on the Commencement Date or the Account Opening Date using the sign-up form. You represent that you are legally entitled and able to enter into this Agreement and, where you are signing up on behalf of another legal entity, that you have the legal authority to bind that entity.
Kebab SW provides online Kebab booking software for Kebab store owners. The software has web-based front end for online booking and a web-based backend for booking and software management, inventory management, customer booking management, sales and agent software, its website, help resources, user interfaces, user manuals, and documentation, Intellectual Property rights, in object code form and any related technology as updated from time to time (“Kebab SW Software”) to its customers.
Kebab SW has developed an online booking system that can be accessed through the web and its mobile app, which it makes available to subscribers via the internet on a subscription basis.
The Customer wishes to use the Kebab SW- Service in its internal & external business operations.
Kebab SW has agreed to provide and the Customer has agreed to subscribe to and pay for Kebab SW service subject to the terms and conditions of this Agreement.
1. LICENCE
1.1. Software License
Upon entering into this Agreement, we grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Kebab SW Software only in accordance with this Agreement and for the purpose of:
(a) Managing your bookings, data or inventory;
(b) Managing your customer and Agent database; and
(c) Processing electronic bookings by your Online users / Customers / Agents , subject to the terms and conditions of this Agreement.
1.2 Kebab SW IP Ownership
Customer/ Entity acknowledge and agrees that Kebab SW and/or its licensors own all Intellectual Property Rights in the Software, Services and Kebab SW Data. Except as expressly stated herein, this Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Software, Maintenance Releases, Services or Kebab SW data.
1.3 Exclusivity
Other than the use of the Kebab SW Software, you must not use any application, program, software, Intellectual Property or any other service that has a function materially similar to the Kebab SW Software (whether in whole or in part) during the term of this Agreement.
1.4 Limitation
Your rights in the Kebab SW Software are limited to those expressly granted in this Agreement. We reserves all rights and licenses in and in relation to the Kebab SW Software not expressly granted hereunder. As between us and you, the Application (and all copies thereof) and all Intellectual Property rights therein or relating thereto, must remain the exclusive property of Kebab SW or its licensors.
1.5 Agent Account
If you use the Agent account services provided by Kebab SW, the terms of the Agent Agreement apply to you in respect of the Agent account services and govern that arrangement.
2. YOUR SUBSCRIPTION ACCOUNT
2.1. Setup
To access the Kebab SW Software, you must register with us by creating an account on our website. You will then be required to activate Your Account by accepting our terms and providing us with your credit card details and any other details required by us.
2.2. Activation
If you are entitled to a 14 days free trial, you do not need to activate Your Account at the time of registration but must activate Your Account prior to the end of the trial. If you do not activate Your Account before the trial ends, we have the right to terminate your access to Your Account and the Services and Kebab SW will not be liable for any loss of data because of inactivation.
2.3. Username and password
Once you have registered, we will provide you with a username and password. You are responsible for the security of your password and all activity on Your Account (whether or not undertaken by you) and must ensure that there is no unauthorised access to Your Account.
2.4. Security
Kebab SW will use firewalls and other technology generally used in the trade to prevent unauthorised third-party access to its computer systems storing Your Account data as well as available encryption technology generally used in the trade to prevent unauthorised third-party access. Notwithstanding the foregoing, Kebab SW is not be liable to you in the event that its use of firewalls and other technology generally used in the trade fails to prevent unauthorised third-party access to Your Account data or its website generally or its use of encryption technology generally used in the trade fails to prevent unauthorised third-party access.
2.5. Update
You must ensure that all data uploaded by you using Your Account is true, correct, accurate and up to date at all times.
3. User Subscription
Kebab SW shall provide the Services during the Subscription Term in accordance with the terms set out in this Agreement.
Subject to the Customer purchasing the User Subscription(s), the restrictions set out in this clause 2 and the terms and conditions of this Agreement, Kebab SW hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term.
In relation to the Authorised Users, Customer undertakes that:
You agree not to allow access to or use of the Kebab SW software by anyone other than you and your representatives;
a) The maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of user Subscriptions it has purchased from time to time.
b) Each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed frequently and that each Authorised User shall keep his password confidential.
c) Customer shall not access, store, distribute or transmit any Viruses, or any material, including without limitation Customer Data and the Authorised User Data, during the course of its use of the Services that:
d) Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
Facilitates illegal activity; or
In a manner that is otherwise illegal or causes damage or injury to any person or property; and Kebab SW reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer's access to any material that
Breaches the provisions of this clause.
Customer shall not:
a) Attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
b) Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
c) Access all or any part of the Services in order to build a product or service which competes with the Services; or
d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users, or
e) Attempt to obtain or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
f) Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Kebab SW.
4. Customer Responsibilities
You are responsible for:
a) Configuring and using the Kebab SW Software
b) Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, appropriateness, completeness, reliability, integrity, accuracy and quality of the Customer Data and Authorized User Data.
c) Protection and backup of all Your Content
d) Customer acknowledges that responsibility for all Customer Data and any communications with others or between Authorized Users using the Services is the sole and exclusive responsibility of Customer and that Kebab SW will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person's rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to Customer Data. Customer agrees to indemnify and hold harmless Kebab SW from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Customer Data.
e) Customer acknowledges that Kebab SW is not obliged to edit, moderate or modify Customer Data (including third party information). However, Kebab SW reserves the right to remove any Customer Data (or third party information) which Kebab SW reasonably believes breaches any laws or regulations or any third party's rights or this Agreement and/or is deemed Inappropriate Content. Kebab SW will notify Customer if it removes any Customer Data (or third party information) in accordance with this clause. Kebab SW disclaims all liability of any kind in respect of Customer Data, third party information and any other material which can be accessed using the Services. Kebab SW expressly disclaims all liability for any fraud committed in connection with the Services.
5. Upgrades
Kebab SW may from time to time and in our sole discretion, release modifications or upgrades to the Kebab SW Software but are under no obligation to do so. You consent to us modifying or upgrading the Kebab SW Software without your knowledge.
6. Maintenance
You acknowledge that from time to time we may be required to undertake scheduled or unscheduled maintenance and this may cause interruptions to the Services. You may not be able to process bookings using the Kebab SWSoftware during this time or otherwise access our website. Where practicable we will provide you with at least 2 days’ notice in respect of any scheduled maintenance period or upgrade. Any general maintenance periods will be specified on our website.
7. Warranty
a) Kebab SW warrants that the Services (excluding any Third-Party Application) will be performed with reasonable skill and care for the Subscription Term.
Kebab SW does not warrant or guarantee:
a) That Kebab SW Software will meet your requirements and expectations
b) That customer's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by Customer through the Services will meet Customer's requirements or expectations.
c) We are not responsible for any delays, delivery failures, or any other loss or damage resulting from Customer's access to and use of the Services through third party applications (such as Google) or the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
d) We are not responsible for any Virus which was not detected by Kebab SW using reasonable current commercial methods of detection.
e) We do not guarantee that Kebab SW Software will be accurate, reliable or fit for any particular purpose.
8. Fees
You have to activate your account after the free trial period with the selected plan of your choice
Pay monthly
If you have elected to pay monthly (30 days), payment of all fixed monthly Service Charges is payable in advance on the Due Date. All Usage Charges are payable monthly in arrears. We will issue you with a tax invoice for the charges on a monthly basis (30 days).
Pay annually
If you have elected to pay annually in advance, an amount equal to the Service Charges for a 12 month period is payable upon entry into this Agreement. All Usage Charges are payable monthly in arrears. We will invoice you for the initial 12-month payment and will issue further invoices as necessary in respect of any Usage Charges.
9. Debit
You authorise us to debit all amounts payable under this Agreement from your bank account using the credit card details associated with your Kebab SW software account.
10. Tax
All fees and charges quoted are exclusive of GST, VAT, withholding tax, and any other applicable taxes or duties. You are liable for any applicable taxes, rate, levy, impost, duty, interest, penalty, fine or other expense in relation to the Services and the amounts paid to you in respect of the Services.
11. No-refund
All charges paid to Kebab SW by you are non-refundable in all circumstances, including but not limited to any Service Charges paid in advance.
12. SUSPENSION
Suspension
We may suspend your access to the Services and/or Your Account if we determine, acting reasonably:
a. Failure of your card associated with your account
b. payment has not been made within 14 days of the Due Date;
c. you are using the Services in a manner not permitted under this Agreement;
d. it is reasonably necessary for repair or maintenance of the Services or our website;
e. the Services are being used illegally or fraudulently; or
f. your use of the Services, in our opinion, acting reasonably, poses a risk to the Kebab SW Software or to Kebab SW and its business generally, and Service Charges will continue to accrue during a suspension imposed by us.
g. you are in breach of this Agreement;
13. Term and Termination
Notwithstanding any other clause of this Agreement, Kebab SW may terminate this Agreement (and your access to the Kebab SW Software) by notice to you with immediate effect if:
This Agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term. Thereafter, unless stated to the contrary in a separate contract, this Agreement automatically renews for successive periods, unless either party terminates with thirty (30) days written notice prior to the end of the Initial Subscription Term or relevant Renewal Period or otherwise terminates in accordance with the provisions of this Agreement. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term". Without a Renewal Period in place, Customer's access and use of the Service shall automatically terminate.
Without prejudice to any other rights or remedies to which the parties may be entitled, either upon written notice if the other party:
is in material breach of any of its obligations under this Agreement and, in the case of a breach which is capable of remedy, fails to remedy such breach within thirty (30) days following notice of the breach; or
voluntarily files a petition under bankruptcy or insolvency law; shall have a receiver or administrative receiver appointed over it or any of its assets; or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business; or is subject to any analogous event or proceeding in any applicable jurisdiction.
On termination of this Agreement for any reason:
a) All right of use granted under this Agreement shall immediately terminate;
b) Customer shall cease the use of the Services;
c) Customer shall promptly pay all payments due under this Agreement;
d) Kebab SW may destroy or otherwise dispose of any of Customer Data in its possession unless Kebab SW receives, no later than thirty (30) days after the effective date of the termination of this Agreement. After such a 30-day period, Kebab SW shall have no obligation to maintain or provide Customer Data, and shall thereafter delete and destroy all copies of Customer Data in Kebab SW control, unless prohibited by law.
14. Indemnity
Notwithstanding any other provision of the Agreement, you are liable to us, our affiliates and licensors (including each of their directors, employees, agents, and representatives) for and indemnify us against any loss, damage, claim, proceeding and cost (including all legal costs on an indemnity basis), including as a result of any third-party claim against Kebab SW, arising out of or directly or indirectly connected with:
(a) The use or attempted use of the Kebab SW Software or Services;
(b) Your Content, including any claim involving alleged infringement or misappropriation of third-party rights in Your Content or the use, development, advertising or marketing of Your Content; and
(c) Any breach of this Agreement.
15. Force Majeure
No liability
Notwithstanding any other clause of this Agreement, neither party will be liable to the other party for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond that party’s reasonable control, including acts of God, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, embargos, riots, acts or orders of government, acts of terrorism or war (Force Majeure Event).
Suspension
Each party’s obligations to the other party will be suspended to the extent of the Force Majeure Event, other than your payment obligations contained in clause 8. If a Force Majeure Event prevents a party from discharging its obligations under this Agreement for a period exceeding 60 days, the other party may terminate this Agreement by providing 30 days written notice.
16. DEFINITIONS
In this Agreement, unless the context otherwise requires:
“Commencement Date” means the earlier of the date that you accept the terms and conditions of this Agreement or the date that you start using the Services.
“Due Date” means each monthly anniversary of the Commencement Date, unless your Commencement Date falls on the 28th to the 31st of a calendar month, in which case your anniversary will be the last day of each subsequent month.
“GST” means any applicable goods and services tax or any similar tax.
“Intellectual Property” means any invention, designs, copyrights, data, know-how, concepts, ideas, process, patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto.
“Kebab SW” (“we”, “us” or “our”) means Kebab SW ABN 99 160 340 045 and includes Kebab SW employees or contractors.
“Services” means the Services provided by Kebab SW to you, which may include but is not limited to access to the Kebab SW Software .
“Your Account” means the online Kebab SW account you create to access the Kebab SW Software.
“Your Content” means any software, data, text, audio, video, images or other materials uploaded onto the Kebab SW software using Your Account, or otherwise processed, used, or stored in connection with Your Account.