- Subject to the terms of this Agreement, the Customer agrees to purchase the Services on a subscription basis set out in the Order Details in return for the payments to Book4Time in the Order Details to be made by the Customer on the dates set out in the Order Details.
- Subject to the terms of this Agreement, Book4Time hereby grants to the Customer a non-exclusive and nontransferable (except as contemplated by this Agreement) license to use the Software described in the Order Details, solely for the Customer’s own internal business purposes in connection with processing transactions with its customers.
- The Software may not be used to provide computer time sharing, third-party training, virtual or actual hosting, or as a service bureau for any third parties.
- The term “Software” as used in this Agreement shall include all updates, corrections, interfaces, modifications and documentation made available by Book4Time to the Customer. Book4Time and its licensors reserve all right, title and interest in and to the Software and the Customer’s rights to use the Software are limited to those expressly granted in this Agreement.
PROPRIETARY MATERIAL; PII, AGGREGATED DATA
- “Proprietary Material” means all information and materials that are not generally known to the public and in which either party, or its suppliers, customers or other persons (to the extent such party owes a duty of confidence to any such person) has rights, which is marked confidential, restricted or proprietary, or which, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary, including this Agreement. Book4Time’s Proprietary Material shall include, without limitation, the Software, all password protected material on Book4Time’s web site and all passwords provided to the Customer in connection with this Agreement. Proprietary Material does not include information that: (i) is, as of the time of its disclosure, or thereafter becomes, part of the public domain without breach of this Agreement; (ii) was known to the receiving party prior to the time of its disclosure; (iii) is independently developed by the receiving party without reference to the Proprietary Material; or (iv) is subsequently learned from a third party not subject to an obligation of confidentiality with respect to the information disclosed.
- Each party agrees that with respect to any Proprietary Material that is disclosed by one party to the other party that, except as expressly specified in this Agreement, the party receiving such Proprietary Material shall: (i) maintain in confidence such Proprietary Material, using the same degree of care as it uses to protect its own confidential information of like nature, but not less than a reasonable degree of care; (ii) not disclose any such Proprietary Material to any person outside that party’s business organization; and (iii) use such Proprietary Material only for the purposes set forth in this Agreement, subject to the terms and conditions of this Agreement
- The Customer shall limit the use of and access to the Software and all other Proprietary Material provided by Book4Time hereunder to its employees whose use of or access to the Software is necessary for the Customer’s business and who are bound to keep such Proprietary Material confidential. The Customer shall immediately notify Book4Time in writing of any unauthorized use of or access to Book4Time’s Proprietary Material. The Customer shall not copy any of Book4Time’s Proprietary Material without prior written notice from Book4Time.
- Nothing in this Agreement shall limit the ability of a party in possession of the Proprietary Material (the “Receiving Party”) of the other party (the “Disclosing Party”) to disclose such Proprietary Material, and the Receiving Party shall have no liability for such disclosure, if such disclosure is (i) required to be made pursuant to law or regulation, government authority, duly authorized subpoena or court order, whereupon the Receiving Party will provide prompt notice to the Disclosing Party and give the Disclosing Party an opportunity to respond prior to such disclosure and seek a protective order or other appropriate remedy; (ii) required to be made to a court or other tribunal in connection with the enforcement of the Receiving Party’s rights under this Agreement whereupon and to the extent allowed by such court or tribunal the Receiving Party will provide prompt notice to the Disclosing Party and give the Disclosing Party an opportunity to respond prior to such disclosure and seek a protective order or other appropriate remedy; or (iii) is approved by the prior written consent of the Disclosing Party.
- Notwithstanding anything to the contrary contained in this Agreement, with respect to any information that identifies or can be used to identify, contact, locate, or be traced back to the specific person to whom such information pertains, or from which identification or contact information of an individual person can be derived (“PII”) delivered or made available to Book4Time under or pursuant to this Agreement, Book4Time agrees that: As between the Customer and Book4Time, the Customer owns and retains all rights in and to the PII, and Book4Time shall not use, process, copy, reproduce, display, publish or create derivative works from the PII without the Customer’s express written permission, except (A) for the purpose of carrying out its obligations set forth in this Agreement, and (B) as permitted by Section 2(e)(v) below. Book4Time shall use reasonable commercial efforts to prevent the unauthorized use, dissemination, or publication of PII by: (1) treating PII as strictly confidential; and (2) taking industry standard administrative, technical and physical measures to attempt to secure and protect the PII against unauthorized, unlawful or accidental access, disclosure, transfer, destruction, loss or alteration. Book4Time shall promptly notify the Customer if Book4Time becomes aware of any unauthorized access to the PII, or, to the extent legally permissible, if Book4Time becomes the subject of any governmental, regulatory, or other enforcement or private proceeding relating to its PII handling practices. When collecting, using, storing, transferring and otherwise processing the PII, Book4Time shall adhere to all applicable export and data privacy laws, domestically and internationally. In the case of any legal obligation to disclose the PII, Book4Time shall: (1) promptly notify and cooperate with the Customer if it is legally permitted to do so; (2) limit any disclosure to the minimum required by law; and (3) to the extent possible, request that such information be kept confidential. Book4Time will own all Aggregated Data. “Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of Book4Time and that does not reveal any PII. The Customer agrees that nothing in this Agreement will prohibit Book4Time from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any Customer PII. The restrictions on the use and disclosure of the Customer PII set forth herein shall survive the expiration or termination of the Agreement.
- Book4Time warrants and agrees that it will indemnify, hold harmless and defend the Customer from and against any action brought or allegation made against the Customer to the extent that it is based upon a claim that the Software infringes any intellectual property rights and will pay any costs, damages and reasonable attorney’s fees attributable to such claim that are awarded against the Customer. Book4Time’s obligations hereunder are contingent on the following conditions: (i) the Customer must notify Book4Time in writing promptly after the Customer becomes aware of a claim or the possibility thereof; (ii) the Customer must grant Book4Time the sole control of the settlement, compromise, negotiation and defense of any such claim; and (iii) the Customer must cooperate with Book4Time and provide Book4Time with all information related to the claim that is reasonably requested by Book4Time; provided, however, that no failure of the Customer to comply with these provisions shall relieve Book4Time of its obligations hereunder, unless and to the extent Book4Time is actually and materially prejudiced by such failure. Book4Time will not settle any claim pursuant to this section without the Customer’s written consent unless the settlement involves no admission by or penalty against the Customer, and the Customer receives a full and final release.
- If the Software or any part thereof becomes, or in Book4Time’s opinion is likely to become, the subject of a valid claim of infringement, Book4Time may, at its option, (i) obtain the right for the Customer to continue using the Software; or (ii) replace or modify the Software so that it is no longer infringing; or (iii) if neither (i) nor (ii) are reasonably practicable, terminate the right to use the Software granted herein. If Book4Time selects (iii), it will reimburse the unused portion of any prepaid fees hereunder, and no such termination will relieve Book4Time from its obligations under Section 3(a) of this Agreement.
- The foregoing indemnity shall not apply to any infringement claim to the extent arising from the Customer’s use of the Software in material non-conformance with its documentation or as reasonably contemplated hereunder, solely to the extent that such infringement relates to such use.
- EXCEPT AS SPECIFICALLY PROVIDED HEREIN, BOOK4TIME MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BOOK4TIME’S EXPRESS WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, BOOK4TIME’S RENDERING OF ADVICE OR SERVICES IN CONNECTION WITH THE SOFTWARE. BOOK4TIME DOES NOT WARRANT THAT: THE CUSTOMERS USE OF THE SOFTWARE AND THE SERVICES WILL COMPLY WITH ALL LAWS OR REGULATIONS APPLICABLE TO THE CUSTOMER AND ITS BUSINESS. THE AVAILABILITY OR PERFORMANCE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT TRANSMISSION OF DATA WILL BE UNCORRUPTED OR TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME.
LIMITATION OF LIABILITY OF BOOK4TIME
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND EXCEPT TO THE EXTENT THE CLAIMS ARISE OUT OF A BREACH BY BOOK4TIME OF ITS OBLIGATIONS UNDER SECTION 2 OR ARE CONTAINED IN A THIRD PARTY CLAIM THAT IS SUBJECT TO THE INFRINGEMENT INDEMNITY IN SECTION 3, IN NO EVENT SHALL BOOK4TIME BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE SERVICES OR THIS AGREEMENT, EVEN IF BOOK4TIME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- UNDER NO CIRCUMSTANCES WILL BOOK4TIME’S AGGREGATE LIABILITY TO THE CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE SERVICES OR THIS AGREEMENT EXCEED ONE HUNDRED THOUSAND DOLLARS; PROVIDED, HOWEVER, THAT THE FOREGOING CAP SHALL NOT APPLY IF SUCH LIABILITY IS THE RESULT OF: (A) A BREACH OF SECTION 2 OF THIS AGREEMENT, (B) BOOK4TIME’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (C) A CLAIM OF INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (D) BODILY INJURY, DEATH OR TANGIBLE PROPERTY DAMAGE CAUSED BY BOOK4TIME.
- THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN THE CUSTOMER AND BOOK4TIME. BOOK4TIME’S PRICING REFLECTS THIS ALLOCATION OF RISKS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN.
- THE CUSTOMER WILL BE ENTITLED TO MAKE ANY CLAIM AGAINST THE PARENT OR ANY SUBSIDIARY OF BOOK4TIME OR THE CURRENT OR FORMER OFFICERS, DIRECTORS, SHAREHOLDERS OR EMPLOYEES OF BOOK4TIME, ITS PARENT OR ANY OF ITS SUBSIDIARIES IN RELATION TO THIS AGREEMENT. BOOK4TIME HOLDS THE BENEFIT OF THIS PROVISION AS AGENT AND IN TRUST FOR THE BENEFICIARIES WHO ARE NOT PARTIES TO THIS AGREEMENT.
- BOOK4TIME SHALL NOT HAVE ANY LIABILITY IN THE EVENT OF FORCE MAJEURE.
The Customer is solely responsible for any liability resulting from the Customer’s handling of credit card information. The Customer shall comply with all rules, regulations and agreements it has entered into in connection with the processing of credit cards.
USER NAME AND PASSWORDS
Book4Time may reject or require that the Customer change any user name or password under the Customer’s account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Book4Time. The Customer, and not Book4Time, is responsible for any use or misuse of user names or passwords associated with the Customer’s account.
HOSTING, MAINTENANCE AND SUPPORT SERVICES
- Book4Time shall provide the Customer with hosting services (the “Hosting Services”) for the Software which shall include, without limitation: (i) 24/7 secure access to the Software; (ii) database backups, account maintenance and software updates; and (iv) preventive maintenance and upkeep of account.
- Book4Time warrants that the Hosting Services shall be performed in a professional and workmanlike manner.
- The Customer will be responsible for providing a broadband high-speed connection to the Internet at its expense.
- Book4Time warrants that the Software will function substantially in accordance with the user documentation provided by Book4Time for use with the specific version or release of the Software licensed hereunder.
- During the term of this Agreement, Book4Time may from time to time in its sole discretion update, modify, edit, or otherwise change the Software, all of which will be included in the Software licensed to the Customer hereunder. Notwithstanding the foregoing, Book4Time retains the right to create for-charge add-ons, which will not be included in the Software except for an additional fee as determined by Book4Time in its sole discretion.
- The Customer shall send written notice of all suspected Errors to Book4Time, which notice shall include complete documentation of such Errors. “Error” shall mean a failure of the Software to perform substantially in accordance with the user documentation provided with the specific version or release of the Software. Upon Book4Time’s request, the Customer shall cooperate with Book4Time to provide more information concerning any suspected Error. Upon receipt of an Error notice and verification by Book4Time of a reported Error, Book4Time shall use reasonable efforts to provide a software update or workaround to correct or address such Error.
- Book4Time will provide such support services in accordance with the Service Level Agreement attached as Exhibit B to this Agreement, as may be determined from time to time between Book4Time and the Customer with respect to the Customer Property. In the absence of any agreement to the contrary, Book4Time will not be responsible for providing first-line (end user) support services to the Customer.
AMOUNTS PAYABLE BY CUSTOMER
- The Customer agrees to pay all amounts set forth in this Agreement, at the times, and subject to any special terms or conditions, all as set forth therein.
- The Customer agrees to pay all taxes, however designated, levied or based on the amounts payable by the Customer pursuant to this Agreement (other than taxes based upon Book4Time’s income), including state and local sales, use or equivalent taxes or amounts in lieu thereof paid or payable by Book4Time in respect thereto.
- Book4Time shall invoice the Customer as of the dates set forth in this Agreement. The Customer shall pay such fees and charges within thirty days of receipt of Book4Time’s invoice. If the Customer fails to pay any undisputed amount properly invoiced when due under this Agreement, it shall pay interest at the rate of 18% per annum (but not to exceed the maximum allowed by law) on such undisputed delinquent amount from the due date thereof until the date of payment.
TERM AND TERMINATION
- This Agreement shall be effective from the date hereof and shall remain in effect unless terminated as provided herein.
- The initial term of this Agreement shall commence on the Effective Date hereof and terminate thirty-six months thereafter. Thereafter it will renew for successive twelve month periods upon payment of the then-current fees and payments for the Software and the Services. Either party may elect not to renew this Agreement by providing at least thirty days’ notice in writing to the other prior to the commencement of the next renewal term.
- If the Agreement is terminated by the Customer for cause (which shall be deemed to include any material breach of this Agreement), Book4Time shall refund to the Customer a pro-rata portion of all prepaid fees paid for the Software relating to the period of the then-current term after the date of termination.
- Except as otherwise required by law, within five days after the termination date of this Agreement for any reason, (i) the Customer shall return to Book4Time all Proprietary Material of Book4Time and all copies thereof in the possession, custody or control of the Customer and shall destroy or render unusable all other Proprietary Material and all copies thereof which for any reason cannot be delivered to Book4Time, except for Proprietary Material to which the Customer retains a perpetual license, and (ii) Book4Time shall return to the Customer all PII of the Customer and all copies thereof in the possession, custody or control of Book4Time and shall destroy or render unusable all other PII and all copies thereof which for any reason cannot be delivered to the Customer
- Exclusivity. During the term of this Agreement, the Customer shall use the Services as its exclusive spa management system software.
- Non-Solicitation. Absent the prior written consent of Book4Time, the Customer will not (i) solicit any person employed by Book4Time to leave his or her employment with Book4Time or (ii) hire any person employed by Book4Time, in either case for a period of twelve months after the date on which this Agreement expires or is earlier terminated
- Customer Co-operation. The Customer agrees to provide Book4Time promptly with any cooperation and information that Book4Time may reasonably require from time to time to enable Book4Time to perform its obligations under this Agreement
TRADEMARK LICENSE, FEEDBACK
- The Customer grants to Book4Time a royalty-free, worldwide, non-exclusive, sublicensable license to use and display the Customer’s trademarks for the sole purpose of enabling Book4Time to identify the Customer as a customer on Book4Time’s website and in its promotional materials. Book4Time will not modify the Customer’s trademarks. Book4Time acknowledges that the Customer is the owner of the Customer’s trademarks and Book4Time will not acquire any rights in the trademarks except for the licence contemplated by this Section.
- Notwithstanding any other provision of this Agreement, if the Customer provides any ideas, suggestions, or recommendations, whether confidential or not, to Book4Time regarding IPR (the “Feedback”), Book4Time may use such Feedback and incorporate it in Book4Time’s products, technologies, and services without any obligations or restrictions. The Customer waives all IPR in the Feedback, and hereby assigns all such IPR to Book4Time. The Customer will execute all documents necessary to assign such IPR that are subject of IPR applications by Book4Time claiming the Feedback, within thirty days after written notice by Book4Time. The Customer will require all of its personnel to assign to Book4Time all their IPR associated with the Feedback. In this Section, the term “IPR” means any right, claim or protection existing from time to time in a specific jurisdiction, whether registered or not, and whether existing under law, equity or under any other theory including under any patent law or other invention or discovery law, copyright law, performance or moral rights law, design law, trade-secret law, confidential information law (including breach of confidence), trademark law, trade-name law, passing off, unfair competition law or other similar laws.
- Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
- Severability. In the event any one or more of the provisions of this Agreement is held to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired and enforced to the full extent.
- Assignment. Neither party will assign or transfer this Agreement without the written consent of the other party, except in the case of Book4Time through merger or acquisition of Book4Time and provided the new entity remains subject to the terms and conditions of this Agreement on the same terms as Book4Time.
- Force Majeure. Other than in respect of the payment of amounts owing by either party hereunder, neither party will have a claim against the other for any failure of performance by such party, if such failure of performance is caused by or the result solely of causes beyond the reasonable control of such other party.
- Notices. Except as provided in Section 13(n) below, all notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each herein, a “Notice”) shall be given in writing and delivered to the Customer and Book4Time at its respective address on the Order Form (i) by personal delivery to the individual identified below, (ii) by certified or registered mail (return receipt requested), or (iii) by a nationally recognized courier. The effective date of such Notice shall be deemed to be the date upon which any such Notice is personally delivered to the addressee. Any party hereto may change its address set forth below by written notice to the other party hereto in accordance with the terms of this Section.
- Relationship of the Parties. Neither this Agreement nor the parties’ business relationship established hereunder will be construed as a partnership, joint venture or agency relationship or as granting a franchise. Neither party will attempt to, or will have the right to, legally obligate the other party.
- Publicity. Book4Time is entitled to disclose the Customer’s name as a customer of Book4Time on Book4Time’s website and in its marketing materials. Any use of the Customer’s trademark will comply with Section 12(a)
- Choice of Law.
- If the Customer’s address for service pursuant to Section 13(e) is located in Canada, then:
- this Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to their conflicts of laws principles and
- the parties hereto attorn to the non-exclusive jurisdiction of the courts of competent jurisdiction in Toronto, Ontario, Canada.
- If the Customer’s address for service pursuant to Section 13(e) is located outside of Canada, then:
- this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to their conflicts of laws principles, and
- the parties hereto attorn to the non-exclusive jurisdiction of the courts of competent jurisdiction in New York City, New York, USA.
- The parties expressly agree that the United Nations Convention for the International Sale of Goods does not apply to the Services provided pursuant to this Agreement.
- If the Customer’s address for service pursuant to Section 13(e) is located in Canada, then:
- Entire Agreement. This Agreement, including the Exhibits attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes and merges all prior proposals, understandings and agreements, oral or written, between the parties relating to the subject matter hereof. No modification, amendment, supplements to or waiver of this Agreement shall be binding upon the parties unless made in writing and duly signed by both parties hereto.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same Agreement. The parties may sign facsimile copies of this Agreement which shall each be deemed originals
- Currency. All amounts in this Agreement are stated in U.S. dollars
- Survival. The following sections will survive termination of this Agreement: Section 2 (Proprietary Material, PII, Aggregated Data), Section 3 (Infringement Indemnification), Section 4 (Warranty Disclaimer), Section 5 (Limitation of Liability of Book4Time), Section 10 (Term and Termination), Section 11(b) (Non-Solicitation), Section 12 (Trademark License, Feedback). In addition, all other provisions of this Agreement that are applicable to those surviving provisions will also apply, including all definitions and general terms.
- Time of Essence. Time will be of the essence of this Agreement.
- Amendments. Book4Time may amend, add or remove portions of this Agreement at any time and from time to time without notice and the then current version will be posted at the following website: https://book4time.com/service-agreement. If Book4Time makes any material changes to this Agreement, Book4Time will also notify the Customer by email at the Customer’s email address in Book4Time’s records from time to time. If the Customer continues to use the services after any changes have been posted, or in the case of material changes, emailed to the Customer, the Customer will be deemed to have accepted them. If the Customer wishes to reject the changes, the Customer must immediately stop using the services and terminate the Customer’s account by emailing firstname.lastname@example.org. If the Agreement is amended, the date and version number on the top right corner of the Agreement will change.