LICENSING AND SERVICE TERMS AND CONDITIONS For FoodStorm Catering Management Software
A. CaterXpress engages in the business of providing software products and associated services for catering management.
B. CaterXpress has agreed to licence its System to the Client on the terms set out within this Agreement.
CONDITIONS OF AGREEMENT
Subject to the terms of this Agreement, CaterXpress will provide the Services to the Client which are available at each Site in accordance with this Agreement.
(a) This Agreement commences on the Commencement Date and, unless terminated earlier or extended by the parties in accordance with this Agreement, will continue for twenty-four (24) months (“Term”).
(b) The Agreement will be automatically renewed for further 12 month periods, unless the Client provides written notice to CaterXpress no less than 60 days before the expiry of the current Term.
3. CATERXPRESS’ RESPONSIBILITIES
(a) appoint a key contact to be the main person for communications in relation to the Project;
(b) be responsible for and carry out those matters described in the Implementation Plan which are clearly identified as CaterXpress tasks; and
(c) carry out its obligations in a professional manner and with due care, skill and diligence.
4. THE CLIENT’S RESPONSIBILITIES
4.1 Client responsibilities
(a) appoint a key contact to be the main person for communications in relation to the Project and to actively manage the performance of the Client’s obligations under this Agreement; and
(b) provide to CaterXpress, on a timely basis, all information that CaterXpress reasonably requires for the purpose of providing the Services.
4.2 Client acknowledgement
The Client acknowledges that:
(a) for CaterXpress to provide the Services it is reliant on the Client complying with its obligations under clause 4.1; and
(b) that CaterXpress shall have no liability to the Client for delays not caused by CaterXpress or resulting from events that could not have been reasonably anticipated by CaterXpress.
4.3 Client warranties
The Client warrants that:
(a) all passwords, usernames and account information used for, in connection to or associated with the Services will remain confidential and will not be provided to third parties, unless it is to authorised agents of the Client, or as otherwise expressly agreed with CaterXpress and Client will notify CaterXpress immediately in writing of any known or suspected unauthorised use of the System or breach of its security and shall use best efforts to stop said breach;
(b) Client will be responsible for (i) Client’s customers’ and Users’ use of the System, including without limitation unauthorised conduct and any conduct that would violate the End User Licence Agreement or the requirements of this Agreement applicable to Client; and (ii) any use of the System through Client’s account, whether authorized or unauthorized;
(c) Client, including any contractor or employee, is prohibited from allowing or enabling the unauthorised use, disclosure, distribution or other form of access to the System to any third party;
(d) Client must not attempt to gain unauthorised access to any coding, systems or networks connected to or associated with the System through hacking, password mining or any other means. The Client may not obtain or attempt to obtain any materials or information through any means not intentionally made available in accordance with this Agreement;
(e) CaterXpress is not responsible for any data Client uploads in connection with the System under this Agreement and Client will not expose CaterXpress to a risk of any claim, legal or administrative action or prosecution;
(f) Client is solely responsible for dealing with the persons who access the Client’s Data and must not refer complaints or inquiries in relation to the Client Data to CaterXpress;
(g) Client will not use the System, or other product or service supplied by CaterXpress to send unsolicited and/or malicious emails or other communications;
(h) Client will not, either directly or indirectly interfere with the operation of the System or any other product or service provided by CaterXpress;
(i) Client will not reverse-engineer, reverse-assemble, decompile, or otherwise attempt to discover source code, formulas or processes in respect of the Software behind the System or any other product or service provided by CaterXpress;
(j) Client will not copy, record, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from the System (including any Confidential information or Intellectual Property Rights contained within the System) or other product or service except where CaterXpress has given the Client written permission;
(k) Client will not use the System or other product or service in a way that is prohibited by law, regulation or government order in any relevant jurisdiction, or in a way that violates a third party’s legal rights;
(l) Client will not use the System in a way that will enable or assist with the creation of a competitive product or service;
(m) Client will not use the System in a way that could harm or impair anyone else’s use of it;
(n) Client shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Client Data;
(o) Client will not, either directly or indirectly, use any means to circumvent any fees, including transaction fees, incurred by the Client that are due and payable and
(p) Client will not cause or allow the upload of any viruses or malicious software, or any unlawful, pornographic, harmful or otherwise offensive materials into the System.
4.4 Additional Services
(a) On the Client’s written request, CaterXpress will provide to the Client Additional Services on a time and materials basis at the rates set out in Schedule 1 or the Additional Services Schedule, as applicable.
(b) If CaterXpress is to provide Additional Services including New Products to the Client, the parties must reach agreement in writing on all items within the Additional Services Schedule and execute the document.
5. PRICES AND PAYMENTS
5.1 Licensing Costs
The Client will pay the Set-up Fee, the Monthly Licence Fee and the fees for any Additional Services in accordance with the pricing in Schedule 1 or the Additional Services Schedule, as applicable.
CaterXpress will provide the Client with valid Tax Invoices in respect of all payments under this Agreement.
(a) Set-up Fees will be due within 14 days from the date that the Client receives the relevant Tax Invoice.
(b) Monthly Licence Fee payments will be automatically paid on the due date to CaterXpress via card payments or direct debit.
The Client is responsible for paying all relevant taxes, including in relation to any supply amounts due and payable in relation to this Agreement.
5.5 Price Increases
The Monthly Licence Fee will be revised upon each 12-month anniversary of the Commencement Date. CaterXpress will provide the Client with at least 30 Business Days’ prior written notice of any price increase.
6. IMPLEMENTATION & DELIVERY
Unless otherwise agreed, the Monthly Licence Fee will commence on the Commencement Date.
7. INTELLECTUAL PROPERTY RIGHTS AND LICENCES
7.1 CaterXpress’ Intellectual Property Rights
The Client acknowledges CaterXpress’ title to and interest in the Intellectual Property Rights in the System, the Software, the Services and any other material the subject matter of this Agreement (save for the Client’s Data).
7.2 Licence to use the System
CaterXpress grants the Client a non-exclusive, non-transferable right and licence to use the System solely for the purpose of use in its business as contemplated by this Agreement.
7.3 The Client’s Data
CaterXpress acknowledges the Client’s title to and interest in the Intellectual Property Rights in the Client’s Data.
7.4 Licence to use The Client’s Data
The Client grants CaterXpress a non-transferable, non-exclusive right and licence to use the Client’s Data solely for the purposes of performing the Services and to compile aggregated statistics for benchmarking purposes, internal or marketing use (provided that no such use shall include any information that can identify the Client or Users.
The Client acknowledges that CaterXpress will have a subtle “Powered by FoodStorm” or similar reference on the Client Website.
8. WARRANTIES, LIABILITIES & INDEMNITIES
CaterXpress warrants and represents that:
(a) the System will:
(i) conform to the Implementation Plan;
(ii) be free from any viruses, trojan horses, worms, spyware or other malicious code (together, ‘Malicious Code’) except for any Malicious Code contained in the Client’s uploaded documents or otherwise originating from the Client;
(b) the Services will be performed in a professional manner and with due care, skill and diligence; and
(c) it has, or it has obtained all requisite rights, interest or title in the System and other relevant material in order to grant the licences and other rights under this Agreement.
8.2 Breach of Warranty
If the System or the Services do not meet any of the warranties contained in this clause 8, then CaterXpress shall, as soon as possible, at its cost, remedy or rectify the defect so that these warranties are met.
8.3 CaterXpress Indemnity
(a) Subject to clause 8.4, CaterXpress indemnifies the Client against any liability, loss, damage, cost or expense, suffered or incurred by the Client arising directly from:
(i) any breach of this Agreement by CaterXpress; or
(ii) any act by CaterXpress resulting in a claim that the Client is infringing or allegedly infringing the Intellectual Property Rights of any person, except to the extent that any liability, loss, damage, cost or expense is caused by the negligence of the Client or is officers, employees or agents.
8.4 Exclusion of Consequential Loss
Neither Party will be liable to the other Party under this Agreement for any Consequential Loss.
8.5 Limitation of Liability
The total liability of CaterXpress arising out of or related to this Agreement will not exceed the Monthly Licence Fee.
9.1 Both parties agree that, unless they have the prior written consent of the other, they will:
(a) keep Confidential Information confidential and not use or disclose to any person (other than for the purpose of performing this Agreement (including where required, to subcontractors of CaterXpress), for obtaining professional advice or as required by law;
(b) take all reasonable steps to keep secure all Confidential Information coming into its possession or control; and
(c) take all reasonable steps to ensure that any person to whom the Party is permitted to disclose Confidential Information complies at all times with the terms of this clause 9.
9.2 Immediately, upon the written request of a Party, the other Party must cease using and promptly return to the Party, or at the option of the Party, destroy, any Confidential Information of the Party as outlined in clause 11.
10.1 CaterXpress will comply with the Privacy Act in respect of all Personal Data related to this Agreement.
10.2 The Client will comply with all applicable data privacy and security laws related to this Agreement.
11.1 Termination for cause
Either Party may terminate this Agreement immediately by written notice if the other Party:
(a) breaches any material provision of this Agreement and fails to remedy that breach within 30 days of written notice requesting it to do so;
(b) breaches clause 9 (Confidentiality) or clause 10 (Privacy), and fails to remedy that breach within 7 days of written notice requesting it to do so; or
(c) is voluntarily wound up, becomes Insolvent (as defined in the Corporations Act 2001 (Cth)), becomes subject to any form of insolvency proceedings or makes an arrangement for the benefit of any of its creditors other than in the ordinary course of business.
11.2 Termination for non-payment
Without limiting clause 11.1, CaterXpress may terminate the provision of any or all Services, without affecting the remainder of this Agreement if any payment due from the Client to CaterXpress remains unpaid for a period of 30 days.
11.3 Not Used
11.4 Consequences of termination
Without limitation, if the Client terminates this Agreement:
(i) CaterXpress will promptly repay to the Client the proportion of any Monthly Licensing Fees relating to any Services that were to have been provided after the date of termination; or
(ii) the Client will promptly pay CaterXpress in relation to Services rendered or costs and expenses incurred prior to termination for which no payment has been made by the Client, as appropriate.
11.5 Obligations on termination
On termination of this Agreement:
(a) the Client and each User will no longer be provided access to the System or the CaterXpress Site and shall immediately return to CaterXpress or destroy all copies of CaterXpress materials in its possession or control;
(b) the Client will disable any hypertext link between the Client’s Website and the CaterXpress Site and/or the System;
(c) each Party will destroy or return to the other Party any Confidential Information of the other Party;
(d) prior to data being destroyed, the Client will have 30 days from the date of termination or expiry to download a copy of its orders, products and customers using the data export functions within the System (in Microsoft Excel format or CSV format). No other data extract services will be provided by CaterXpress; and
(e) after 90 days from the date of termination or expiry the Client Data will be permanently deleted from all CaterXpress backups.
12. DISPUTE RESOLUTION
12.1 Neither Party will commence court proceedings relating to any dispute arising out of or in connection with this Agreement except where that Party seeks injunctive or other urgent interlocutory relief.
12.2 Where a Party claims that a dispute has arisen, it will give prompt written notice to the other Party. The Parties will then meet within 10 days of the notification and acting in good faith endeavour to resolve the dispute.
12.3 If the dispute is not resolved within the 10 days (or within such further period as agreed between the Parties) the Parties will endeavour in good faith to settle the dispute by mediation administered by the Australian Commercial Disputes Centre.
13. FORCE MAJEURE
13.1 Neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to a Force Majeure Event.
13.2 Each Party must use its best endeavours to minimise the impact of the Force Majeure Event and to resume performance of its obligations as soon as possible.
13.3 If a delay or failure by a Party to perform its obligations due to Force Majeure Event exceeds 60 days, the other Party may immediately terminate the Agreement on providing notice in writing.
13.4 If this Agreement is terminated pursuant to clause 13.3, then either:
(a) CaterXpress will refund moneys previously paid by the Client pursuant to this Agreement for Services not provided by CaterXpress to the Client; or
(b) the Client will pay CaterXpress in relation to Services rendered or costs and expenses incurred prior to termination for which no payment has been made by the Client.
14.1 (a) CaterXpress may amend the terms of this Agreement at any time by notifying the Client of such changes. If the Client does not object to the changes within 20 Business Days of being notified of the amendment, then the change will be deemed to be accepted by the Client.
(b) If the Client does object to the amendment and the parties are unable to reach agreement within 14 Business Days of being notified of the objection by the Client, then either party can terminate the Agreement giving the other party 90 Business Days written notice.
14.2 Neither Party will be deemed to have waived any right under this Agreement unless the waiver is in writing and signed by that Party. A failure to exercise or a delay in exercising any right under this Agreement will not operate as a waiver of that right.
14.3 Any unlawful or voidable provision in this Agreement shall be read down to the minimum extent necessary to achieve its validity or, if it cannot be read down, will be severed from this Agreement, without invalidating or affecting the remaining provisions of this Agreement.
14.4 This Agreement supersedes all prior discussions, negotiations and arrangements and embodies the entire understanding and all terms agreed between the parties relating to the subject matter of this Agreement.
14.5(a) Each notice or other communication (each a “communication”) to be given under this Agreement is to be in writing and may be sent by personal delivery, post or email.
(b) Each communication under this Agreement is to be sent to the address of the relevant Party set out in the details above or as otherwise advised by a Party in writing to the other.
(c) A communication under this Agreement will only be effective:
(i) in the case of personal delivery, when delivered;
(ii) if posted, five Business Days after posting;
(iii) if by email, on the date and time at which it enters the addressee’s information system, which indicates that the email was sent to the email address of the addressee notified for the purposes of this clause,
provided that any communication received or deemed received after 5pm or on a day which is not a Business Day in the place of receipt shall be deemed not to have been received until the next Business Day.
14.6 (a) Neither Party may assign, or attempt to assign any of its rights, interests or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld, however CaterXpress may, without the prior written consent of the Client, use a subcontractor and/or independent contractor in the performance of its obligations under this Agreement.
(b) CaterXpress acknowledges that it is responsible for the acts and defaults of any subcontractor and/or independent contractor to the same extent as if they were acts or defaults of CaterXpress.
14.7 Except as otherwise expressly provided by this Agreement, all rights and remedies available to any Party under or for breach of this Agreement are cumulative and may be exercised concurrently or separately.
14.8 This Agreement is governed by the law of Victoria, Australia and the Victorian courts and their courts of appeal will have exclusive jurisdiction.
14.9 The Client grants CaterXpress permission to use its name in CaterXpress marketing materials and to publish its name, trademark and/or logo on CaterXpress Site, solely for the purpose of identifying the Client as a client.
14.10 This clause 14.10 and clauses 7.4, 9 (Confidentiality), 10 (Privacy), 11.5 (Obligations on termination), 14.4 (Entire Agreement) and 14.8 (Governing Law) will survive termination of this Agreement.
14.11 This Agreement may be signed in any number of counterparts which together shall constitute one agreement binding the parties.
15. CATERXPRESS PERFORMANCE INDICATORS
15.1 The CaterXpress performance indicators for the System are as outlined in Schedule 3 of this Agreement.
15.2 If CaterXpress fails to meet any of the performance indicators for three consecutive months, then the Client can terminate this Agreement immediately by giving notice to CaterXpress.
15.3 The CaterXpress performance indicators are not applicable to Software features or components available in Labs.
16. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires:
“Additional Services” means the services described in Schedule 1.
“Additional Services Schedule” means any Additional Services pursuant to clause 4.4, and will include the costs, services, and any special conditions.
“Agreement” means this agreement including the Schedules, as amended from time to time.
“Business Day” means any day that is not a Saturday, Sunday or statutory public holiday in Melbourne, Australia.
“CaterXpress Site” means CaterXpress’ site on the Internet on which the Users may access the System and on which customers may access the shopping cart section.
“Client Data” means any data or information provided by the Client to CaterXpress or otherwise collected by CaterXpress in the course of performing this Agreement including:
(a) Confidential Information of the Client, including any Personal Information of the Client; and
(b) any other data or information or data indicated by the Client to CaterXpress to be the Client’s Data.
“Client Website” means the Client’s website, on the Internet.
“Commencement Date” means the date on which the last of the Client and CaterXpress executed this Agreement.
“Confidential Information” of either Party means any and all information:
(a) which is either marked or expressly denoted by a Party to be confidential or which a reasonable person would, taking into account the nature of the information consider it to be confidential;
(b) including information relating to either Party’s operations, staff, business dealings, contracts, customers, marketing, sales, business plans, transactional data, financial data and other sensitive corporate information; and
(c) Such Confidential Information shall not include information that:
(i) is or becomes generally known or in the public domain through no fault of the other Party;
(ii) is independently developed or learned by a Party without the use of any Confidential Information of the other Party; or
(iii) is lawfully obtained from a third party who has the right to make such disclosure.
“Consequential Loss” means indirect, special, incidental, exemplary punitive, or consequential damages including, without limitation, loss of business, revenue, profits, goodwill, use, data, or other economic advantage.
“Enhancement” means any modifications, updates, variations or revisions of the System that CaterXpress reasonably determines not to be a New Product.
“Force Majeure Event” means anything outside the reasonable control of a Party, including but not limited to, acts of God, strikes by employees of a third party (other than a sub-contractor), the non-availability of any service provided by a third party including relevant telecommunication operators, used in relation to the provision of the Services.
“Implementation Plan” means the plan provided by CaterXpress to the Client outlining the services and Milestones as defined in Schedule 1 or the Additional Services Schedule (as applicable).
“Implementation Services” means the services which CaterXpress is to provide to the Client as described in the Implementation Plan (as applicable).
“Intellectual Property Rights” includes (without limitation) any present and future right to, and any present and future interest in, any patent rights, design rights, copyrights, trade mark rights (whether registered or unregistered), trade name and all goodwill rights associated with such works, copyright, trade secrets and any other proprietary right or form of intellectual property (protectable by registration or not) in respect of any know-how, technology, concept, idea, data, component, tool, library, methodology, routine, program or other software (including in source and object codes), specification, formula, drawing, document, programme, design, system, process, logo, mark, style or other thing of a similar nature, conceived, used, developed or produced by any person.
“Internet” means the global connection of computer networks providing for the transmission of electronic mail, on-line information, information retrieval and file transfer protocol.
“Labs” means any Software features or modules that, while accessible within the CaterXpress Site are still in an experimental or testing phase. Functionality in Labs may be modified or removed at any time without notice, and are not guaranteed to be free from errors.
“Licensing Services” means the services described in Schedule 2.
“Milestone(s)” means the dates set out in the Implementation Plan for the completion of certain deliverables (as applicable).
“Monthly Licence Fee” means the fee to cover the Licensing Services as specified in Schedule 1 or the Additional Services Schedule (as applicable).
“New Products” means new or different products, modules and/or components for which, if provided or sourced by CaterXpress, CaterXpress will charge additional fees to be agreed upon by CaterXpress and the Client.
“Party” means each of CaterXpress and the Client, and Parties means both CaterXpress and the Client.
“Password” shall mean the unique password assigned to each User which permits access to the System.
“Permitted Purpose” means:
(a) the performance of this Agreement by CaterXpress; and
(b) any purpose notified to CaterXpress by the Client in writing.
“Personal Information” has the meaning given to that term in the Privacy Act.
“Privacy Act” means the Australian Privacy Act 1988 (Cth) as amended from time to time.
“Project” means the:
(a) delivery, installation and commissioning of the System at the Sites so as to be Ready to Use; and
(b) provision of the Services and Additional Services (as requested).
“Ready to Use” means fully installed, commissioned and accepted System as described in the Implementation Plan.
“Services” means the Implementation Services, the Licensing Services and the Additional Services as applicable.
“Set-up Fee” means the fee for the Implementation Services as specified in Schedule 1 or the Additional Services Schedule (as applicable).
“Site” means the food production location/s where the System is utilised as listed in Schedule 1 or the Additional Services Schedule (as applicable).
“Software” or “software” means the computer software as, or to be, provided for the purposes of the System and as upgraded by CaterXpress from time to time.
“Support Services” means those support services to be provided to the Client as detailed in Schedule 2.
“System” means the Internet-based catering management application and related online services, which runs and is hosted on the CaterXpress Site.
“Taxes” means any and all present and future taxes, fees, withholdings, levies, duties or other charges of any nature whensoever imposed (other than taxes on CaterXpress’ net income) by any government, or other relevant authority, together with any penalties, fines or interest payable in the relevant jurisdiction.
“Tax Invoice” has the meaning as defined in the A New Tax System (Goods and Services Tax) Act 1999.
“Term” means the term of this Agreement as set out in clause 2.1
“Third Party Contractors” means third party contractors or individuals used by the Client to assist in the Client’s catering management efforts.
“User” means the Client’s employees and Third Party Contractors who have received a unique System account login.
16.2 Interpretation: In this Agreement, unless the context requires otherwise:
(a) Reference to any statute or statutory provision includes as amended, extended or re-enacted.
(b) Words importing the singular include the plural and vice versa; words importing any gender include every gender; reference to persons include bodies corporate and unincorporate.
(c) Any reference to a Party includes a reference to its successors in title and permitted assigns.
(d) A reference to a recital, clause, schedule or annexure is to this Agreement.
(e) A reference to any agreement or document is also a reference to that agreement or document as amended, novated, supplemented or replaced from time to time.
(f) The headings to the clauses and Schedules are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
(g) “Including” and similar words do not imply any limitation.
(h) References to “source code” means the Software in human readable form and includes all program logic, module specifications, technical data, information manuals and any other associated information or documentation to enable a third party to understand, maintain and modify the Software.
(i) In the event of any conflict, the body of this Agreement shall have precedence over the Schedules.
SCHEDULE 1 – As agreed and signed between the parties.
SCHEDULE 2 – LICENSING SERVICES
LICENSING SERVICES (which includes the Support Services)
The Licensing Services (which includes all levels of support and maintenance contained below, such support and maintenance to form the Support Services) shall include:
• Ongoing upgrades of features as set by CaterXpress
• Secure access to the System and use of the Systems environment
• Product technical support for the System and as otherwise provided in this Agreement
• System and database maintenance on an ‘as required’ basis
• Daily Data backup once the System is live
• Battery backed UPS (Uninterrupted Power Supply) for backup power in the event the prime electricity source fails for the systems environment to ensure effective provision of the System as provided for in this Agreement
• Monitoring of the System which includes technical and user Support Services including all support and maintenance throughout the Agreement.
• 30 second HTTP ping tests (i.e. CaterXpress will be notified of a system outage automatically)
• CaterXpress must ensure that the security of the service offering is provided, including:
(i) access to data centre and network components;
(ii) security in relation to adding/changing access to network applications;
(iii) ensure security layers in relation to the System, network and platform including user authentication, firewalls and intrusion detection; and
(iv) provision of security and monitoring software, remedies and reporting procedures for security violations.
SCHEDULE 3 – CATERXPRESS PERFORMANCE INDICATORS
Required Performance Level
Processing (Other Than Data Retrieval)
99.5% of the time (except as otherwise provided in this Agreement)
Availability with full functionality (including all relevant servers, links and other items required for access).
Handling by System of the Users requests (other than for data retrieval), inputs, calculations or updates.
All administration software functions must be able to be processed within 30 seconds.
Data that is stored in the System or is otherwise within CaterXpress’ possession, custody or control, will be made available to Users when a request is made via the System (whether by use of a task button, mouse click or any other means).
Reports must be generated within 5 minutes of input requests. All administration software functions must be able to be processed within 30 seconds (excluding reports, which must be processed within 5 minutes)