The Agreement is made between Light Source Digital Pty Ltd (ABN: 28 612 668 587) located at 14 Toorak Road, South Yarra VIC 3141 Australia (The Company) and the Customer.
Software and System shall mean the Flex Catering software as a service and all its executable object code of software, programs, patches, scripts, modifications, enhancements, designs, concepts or other materials that constitute the software program necessary for the proper function of Flex Catering.
Flex Catering is a catering management software. By using Flex Catering or signing up for an account, The Customer agrees to the terms of this agreement.
1.1. Subject to the terms of this agreement, the Company hereby grants to the Customer a non-exclusive, non-transferable single Software as a Service (SaaS) license for the Customer’s use for an agreed fee.
2.1. The Term and billing begins when the software is provisioned and access given to the Customer, and continues as long as you use the Service. If you sign up for Flex Catering on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.
2.2. The price and contract duration are agreed between the Company and the Customer in a separate proposal and form part of these Terms. If not specified in the proposal, support is limited to 5 hours per month. Extra hours may be purchased thereafter.
2.3. Migration of data, software on-boarding, eCommerce module web design customisation, training and support are also agreed between the Company and the Customer in a separate proposal and form part of these Terms.
2.4. Upon signing up to the Software the Customer must provide the Company with their credit card details for billing. Payment of the periodic fee is processed by our automated credit card merchant gateway.
3.1. The Customer must not make copies of the software for any purposes. All copies and distribution of the software shall remain within the direct control of the Customer and its representatives.
3.2. In no way does this Software License confer any right to the Customer to license, sub-license, sell, distribute, modify or otherwise authorise the use of the software, whether in executable form, source code or otherwise, by any third parties, except in connection with the use of the system as part of the Customer’s business.
3.3. The Customer must not use the Software in connection with any illegal activities.
3.4. The Customer must keep its Flex Catering passwords secure at all times.
3.5. The Customer must not provide access to Flex Catering Administrator to individuals outside their organisation without written consent and approval by the Company
3.6. The Customer must inform the Company in writing as soon as it becomes aware of any security breach and/or password stolen.
4.1. The Customer must respect Flex Catering proprietary rights. Proprietary rights may include, but not limited to software, trademarks, service marks, trade secrets and copyrights. You may only use Flex Catering brand assets by request.
4.2. Proprietary Rights Owned by the Customer:
4.2.1. The Customer represents and warrants that it either owns or have permission to use all of the material and data uploaded or emailed via the software. The Customer retain ownership of the materials that is uploaded to the software.
4.2.2. The Customer may supply or allow the Company to use certain proprietary information, including service marks, logos, graphics, customer lists, documents and business information and plans that have been authored or pre-owned by the Customer. All such intellectual property shall remain the exclusive property of the Customer and shall not be used by the Company for any purposes other than those associated with delivery and operation of the system, unless otherwise agreed in writing.
4.3. It is the customer’s responsibility to generate and maintain backup of its own data (Customers, Products and Order lists) outside the software. The Company is expressly not liable for any data loss or interruption of service.
5.1. The Company represents and warrants to Customer that:
5.1.1. it has all necessary rights and authority to execute and deliver this Software License and perform its obligations hereunder and to grant the rights granted under this Software License to Customer;
5.1.2. the services provided by the Company under this Software License, including the software and all intellectual property provided hereunder, are original to the Company or its subcontractors or partners; and
5.1.3. the software, as delivered as part of the system, will not infringe or otherwise violate the rights of any third party, or violate any applicable law, rule or regulation.
5.2. No warranty of any type or nature is provided for the source code version of the software which is delivered as is.
5.3. Except as expressly stated in this Agreement, there are no warranties, express or implied, including, but not limited to, the implied warranties of fitness for a particular purpose, of merchantability, or warranty of no infringement of third party intellectual property rights.
6.1. The Company hereby indemnifies and shall hold harmless the Customer, its parent companies and its and their subsidiaries, affiliates, officers, directors, employees, agents and subcontractors from and against all liability, damages, loss, cost or expense, including but not limited to reasonable attorneys’ fees and expenses, arising out of or in connection with any breach or alleged breach of the Agreement or any third party claims that the software or system here provided by the Company infringes or otherwise violates any rights of any such third party.
6.2. Customer hereby indemnifies and shall defend and hold harmless the Company, its and their subsidiaries, affiliates, officers, directors, employees, agents and subcontractors from and against all liability, damages, loss, cost or expense, including but not limited to reasonable attorneys’ fees and expenses, arising out of or in connection with any third party claims that Customer’s use of the software in contravention of the grant of rights infringes or otherwise violates any rights of any such third party.
7.1. This license agreement automatically ends if the customer fails to pay the agreed fees. The software will be suspended until payment is made. After 30 days of its suspension the software is decommissioned and all data will be lost.
7.2. The Company may terminate this license at any time, effective immediately upon notice for failure to comply with any of terms set forth in this agreement. Moreover, the Company may terminate this license agreement at any time by giving 30 days’ notice to the Customer. Upon request by the Customer, the Company can provide a final backup of the Customer’s data available (Orders List, Events List, Product List, Customer List, Ingredients List, Suppliers List) in CSV format.
7.3. The Customer may terminate by providing notice to the Company prior to paying for the next month without incurring any future liability.
7.4. Upon termination, shall the Customer retain any copies of the software, the Customer is obligated to immediately destroy the software, including all copies.
8.1. The liability of the Company to the Customer for any reason related to the performance of the Software under this agreement shall be limited (at our option) to the replacement, repair or resupply of the Services or the pro-rata refund to Customer of pre-paid fees for your subscription covering the remainder of the term.
8.2. In all circumstances, the maximum liability of the Company to the Customer for damages for any and all causes whatsoever, and the Customer’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net periodically fee paid by the Customer for the use of the Software.
8.3. In no event, shall the Company be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the Software provided, even when the Company has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
8.4. The Company is not liable if the Customer breaches any copyright laws due to the use of copyright images and text provided by the Customer.
9.1. The Company uses appropriate technical and organisational measures to protect Customer’s data and all data processed in the Software. The software provides high levels of security by keeping the server updated with the latest security features and updates, SSL connection (https), password encryption, firewalls, among other technical and organisational measures such as secure storage of hardware at the offices.
9.2. Credit card details are not stored in the Flex Catering databases. Flex Catering passes the credit card to the customers’ selected merchant/gateway facility via a secure API connection.
9.3. Flex Catering software provides user permission access with the ability to determine the permissions privileges of your employees. All Administrator logins get logged and tracked for security and auditing purposes.
9.4. Flex Catering staff members processing data are subject to a duty of confidence and agree to keep confidential all your data during and after termination of employment. When using outside parties to process data Flex Catering will ensure that they offer the appropriate level of security and data protection.
9.5. If we become aware of any data breach relating to any data in your Flex Catering installation, we will inform you immediately and vice-versa. Flex Catering will then co-operate with you to take reasonable steps to assist in the investigation, remediation and mitigation of the data breach.
9.6. Both parties agrees to comply by request with country specific laws and regulations in connection with the use of the other party’s data, including personal data protection and privacy laws and regulations.
10.1. A party may deliver notices under the Agreement by postage, by hand or by e-mail transmission to another party at the address set out at the beginning of the Contract or such other address a party may notify in writing to the other.
11.1. The warranties, rights and remedies of the Customer as outlined in the Commonwealth Trade Practices Act 1974 are not intended to be compromised as a result of anything contained in these terms and conditions, except to the degree permitted by the Act.
The laws of Australia shall govern this agreement. Any and all disputes arising from this Agreement shall be submitted to the competent court in the State of Victoria.