TERMS OF SERVICE Agreement
Whereas Celebrant Planner Software owns the proprietary web-based technology known as the Celebrant Planner which includes, but is not limited to, software (“Software”), to booking management software available to Client from Celebrant Planner’s secure website;
Whereas Client wishes to use Celebrant Planner during the Term (as defined herein) and engage Celebrant Planner Software to render services described herein, and Celebrant Planner Software wishes to grant Client such rights and to render such services;
The parties agree as follows:
1. Use of Celebrant Planner Product
Subject to the terms of this Agreement, Celebrant Planner Software hereby grants Client a revocable, non-exclusive, non-assignable and non-sublicensing license to use Celebrant Planner for its internal purposes at the establishments during the Term (as defined herein). This license shall terminate immediately upon the expiration or termination of this Agreement. Client expressly agrees that Client will not copy or distribute Celebrant Planner or any Software or adapt or prepare any derivative work based on Celebrant Planner or any, Software, in whole or part; that Client shall not license, sublicense, or reverse-engineer Celebrant Planner or any Software; that Client will not make any other use of Celebrant Planner other than as set forth in this Agreement; that Client shall not disclose any unique metric provided by Celebrant Planner Software; or permit any third party to do any of the foregoing. Celebrant Planner Software may terminate this Agreement at any time upon written notice, if the client violates the foregoing provision of this Agreement.
2. Client Service
Celebrant Planner Software agrees to provide all necessary Standard Client Service subject to payment in full of the Subscription Fees. All reasonable travel and expense costs approved by the Client and incurred by Celebrant Planner Software will be billed directly.
3. Subscription and Support
During the Term, Celebrant Planner Software will provide ongoing subscription and support services (including, product updates, unlimited usage, technical support, warehousing of the Client data, and anytime access to data via World Wide Web, subject to payment in full of the Subscription Fee. “Technical Support” means information collection and preliminary problem analysis by service centre staff at any time for questions on Client’s use of Celebrant Planner and/or diagnosis of issues related to the proper functioning of the product, followed by 60 minute response from Celebrant Planner Software technical support staff between 9:00 am and 8:00 pm Central Australian Time, Monday through Friday and priority sequenced response the following business day for email requests logged outside of those hours
4. Payment Terms
(a) Unlimited users and bookings plus web based training, support, system set-up to include (logo loading, Google Calendar setup, Stripe integration) are included in the Subscription. On-site training is available upon request
(b) Payment amounts set forth in this Agreement do not reflect any sales, use, service, excise, or other tax that may be payable with respect to the transactions contemplated herein. Except for any tax on Celebrant Planner Software income, any and all such taxes, including any interest or penalty thereon (collectively, “Taxes”) shall be borne by the Client. Insofar as Celebrant Planner Software is aware that it is obligated to collect any such Tax, it shall be treated in accordance with Sections 4 (b) through 4 (c).
5. Term and Termination
The initial term of this Agreement (together with the renewal terms, the “Term”) shall be Annually or Monthly commencing on the date the Celebrant Planner Software is setup for Client with appropriate logo loading and other accounts so as to be operational for the Client. The Term will automatically be renewed on an annual basis (subject to any annual subscription fee increases), unless either party shall give notice to the other at least 30 days prior to the end of the Term that the Term shall not be renewed. Notwithstanding the foregoing, either party may terminate the Term by notice from one party to the other, if such other party shall have breached this Agreement, and such breach shall not have been cured within 30 days after receipt of written notice thereof from the terminating party. Upon the expiration or termination of the Term, Client will pay Celebrant Planner Software any unpaid portion of the Annual Subscription Fee and discontinue its use.
6. Confidentiality & Intellectual Property
(a) Celebrant Planner Software fully understands and respects the Client’s concerns with regard to confidentiality. In connection with this Agreement, Client may furnish Celebrant Planner Software with certain information relating to Client’s business and affairs that is confidential or proprietary, including procedures and manners of operation, management information systems, and financial, statistical, and other data identifiable as Client’s, all of which will be held strictly confidential. Notwithstanding the foregoing, Client agrees that neither it nor its customers will input, enter or transfer any Confidential Financial Information, in or to any software application, document, discussion, website or other software, belonging to or provided by Celebrant Planner Software. For the purposes of this Section 6(a), “Confidential Financial Information” shall include any and all credit card numbers belonging to or concerning any customers of Client.
(b) Each party shall retain all right to, title of, ownership of, and interest in its hardware, software, respective trademarks, service marks, trade names, and all other intellectual property worldwide (“Intellectual Property”), subject to a limited non-exclusive, non-transferable license necessary to perform this Agreement. Client acknowledges that its limited use of the Celebrant Planner Software Intellectual Property (including Celebrant Planner) shall not create in Client or any third party any right, title, or interest in or to such Intellectual Property. Client shall own (and Celebrant Planner Software shall have no rights to) any data insofar as it is identifiable as Client’s. Nothing in this Agreement constitutes a sale of Celebrant Planner Software Celebrant Planner or any Software or any portion thereof, or gives Client any right to receive, use, or examine any source code or design documentation relating to Celebrant Planner. Each party hereby agrees to maintain the terms of this Agreement, in the strictest confidence and will not disclose any portion thereof without the written consent of the other party.
(a) Client shall indemnify and hold harmless Celebrant Planner Software, its directors, officers, employees, affiliates, and agents, with respect to any claim, demand, cause of action, liability, and/or damages, financial or otherwise, including reasonable attorneys’ fees, court costs, and expense of investigation, that may be brought as a result of any breach by Client of this Agreement or any technical work performed by Celebrant Planner Software unless such technical work shall involve Celebrant Planner Software negligence or willful misconduct.
(b) Celebrant Planner Software will indemnify, subject to the limitation in Section 8(b), and defend Client, its directors, officers, members, employees, affiliates, and agents, (i) with respect to any claim, demand, cause of action, liability, and/or damages, financial or otherwise, including reasonable attorneys’ fees, court costs, and expense of investigation, that may be brought as a result of any breach by Celebrant Planner Software of this Agreement and (ii) with respect to, any claim that the use of Celebrant Planner Software within the scope of this Agreement, infringes a United States patent, copyright, trademark, or trade secret, provided that: (i) Client notifies Celebrant Planner Software of the claim promptly: (ii) Celebrant Planner Software has sole control of the defense and all related settlement negotiations; and (iii) Client provides Celebrant Planner Software with reasonable assistance and all information reasonably necessary to perform Celebrant Planner Software obligations under this Section 8(b). At its election, Celebrant Planner Software may modify the Software or Celebrant Planner so as not to be infringing; obtain a license for Client’s continued use of the Software and Celebrant Planner Software; or, by notice, terminate the Term and refund any unused portion of any fees. The provisions of this Section 7(b) shall constitute Client’s exclusive remedy in the case of any alleged or actual infringement or other violation by the Software, Celebrant Planner Software, or any part of any thereof, of any third party intellectual property right.
8. Limitation of Liability
(a) Celebrant Planner Software does not warrant that Celebrant Planner or the Software is free from bugs or errors. Celebrant Planner Software’s sole obligation regarding any bugs or errors shall be to provide subscription and technical support services pursuant to Section 3. Neither Celebrant Planner Software, nor any stockholder, subsidiary, director, officer, employee, agent, consultant, subcontractor, representative, adviser, or other person employed or engaged by Celebrant Planner Software in any capacity (“Affiliates”) shall be liable to Client or any other party for special, incidental, consequential, or indirect damages or loss of good will, revenue, or income, equipment failure, or other damage, expense, or loss, regardless of theory of liability, whether arising under contract, tort, law, equity, or otherwise (i) from Client’s use of the Software or Celebrant Planner or any part thereof (except for any indemnification pursuant to Section 7(b)); (ii) from Celebrant Planner Software performance or nonperformance of its obligations hereunder; (iii) from any action taken or not taken by any Affiliate while employed or engaged by Celebrant Planner Software, whether within or without the course of such employment or engagement or within or without the scope of Celebrant Planner Software performance hereunder; or (iv) otherwise in connection with this Agreement.
(b) Celebrant Planner Software aggregate obligations under Section 7(b) and for breach of any obligation arising under or in connection with this Agreement, regardless of theory of liability, whether arising under contract, tort, law, equity, or otherwise shall not exceed the total amount of fees paid by Client since the most recent renewal of the Term.
(a) This Agreement is made at arms length. Nothing in this Agreement constitutes the parties as partners or joint ventures or either party as owing any fiduciary or other special duty to the other.
(b) This agreement contains the parties’ entire understanding with respect to the subject matter hereof and supersedes any and all previous or contemporaneous agreements between them with respect thereto. This Agreement cannot be amended, and no provision hereof can be waived, except by a writing signed by each party.
(c) Celebrant Planner Software may (i) assign this Agreement to any affiliate as part of an internal reorganisation or to any acquirer (whether by merger or acquisition) of all or substantially all of Celebrant Planner Software’s assets or business or (ii) subcontract any of its obligations hereunder without Client’s consent. Client may not assign any of its rights or delegate any of its obligations hereunder without Celebrant Planner Software’s written consent, which such consent shall not be unreasonably withheld or delayed.
(d) The determination by a court that any provision that is not of the essence of this Agreement is invalid shall not affect the validity of any other provision hereof. The parties shall cooperate in good faith to substitute for any invalidated provision a valid provision, as alike in substance to such invalidated provision as would be lawful.
(e) This agreement shall be governed by the laws of the State of South Australia applicable to a contract negotiated, signed, and wholly to be performed in such jurisdiction by residents thereof. Any dispute under this Agreement shall be adjudicated in South Australia, if any court therein shall have jurisdiction. Service of any process or papers with respect to any such adjudication shall be sufficient if given or made pursuant to the notice’s provisions hereof. Each party waives jury trial with respect to the adjudication of any dispute arising under this agreement. The losing party in any proceeding to resolve any dispute under this Agreement shall bear the actual, reasonable and necessary legal expenses, including attorney’s fees and expenses, incurred by the prevailing party in connection with such proceeding and in collecting such fees and expenses from the losing party (including in proving the amounts of any of the foregoing). “Attorney’s fees and expenses” shall mean the actual amounts billed by the prevailing party’s attorneys at their usual rates in effect from time to time during the periods in which services shall have been rendered, and the actual expenses incurred by such attorneys for which they shall customarily seek reimbursement from their clients during such periods, and shall not be limited to “reasonable” fees or expenses. Amounts payable under this Section shall bear interest at the rate of 1.0% per month, or the highest lawful rate, if less, from the date incurred until payment.
(e) Any notice authorised or required to be given hereunder shall be in writing, addressed as specified below, and deemed given or made, if by hand or courier service by 4:00PM on a business day, addressee’s day and time, on the date of delivery, and otherwise on the first business day after such delivery; if by email, on the date that transmission is confirmed electronically, if by 4:00PM on a business day, addressee’s day and time, and otherwise on the first business day after the date of such confirmation; or five days after mailing by certified or registered mail, return receipt requested; and sent, or to such other address as any party shall specify to the others in accordance with these notice provisions