Terms and Conditions of Business – SaloniQ
1 Definitions and Interpretation
1.1 In these Conditions the following words have the following meanings:
|Applicable Laws||any and all:|
(a)legislation (including statutes, statutory instruments, regulations, edicts, bye-laws, orders, directives or treaties) and common law;
(b) judgments, resolutions, decisions, orders, notices and demands of any court, regulator or tribunal; and
(c) rules, policies, guidance or recommendations issued by any governmental, statutory or regulatory body,
in each case whether local, national, international or otherwise existing from time to time in any relevant jurisdiction which relates to a party, the Contract and/or the Services;
|Business Day||a day other than a Saturday, Sunday or public holiday in England;|
|Business Hours||9.00am to 5.30pm Monday to Friday;|
|Conditions||the terms and conditions set out in this document;|
|Confidential Information||information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of SaloniQ for the time being confidential to SaloniQ and trade secrets including, without limitation, technical data and know-how relating to the business of SaloniQ or any of its suppliers, clients, customers, agents, distributors, shareholders or management, whether or not such information (if in anything other than oral form) is marked confidential;|
|Contract||the contract between SaloniQ and the Customer for the sale and purchase of the Services in accordance with these Conditions;|
|Customer||the person or firm who purchases the Services from SaloniQ;|
|Customer Data||the data inputted by the Customer or SaloniQ or any other third party on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;|
|Force Majeure Event||any event or circumstances outside the reasonable control of either party affecting its ability to perform any of its obligations under these Conditions including but not limited to Act of God, fire, flood, severe weather, epidemic or pandemic, war, revolution, acts of terrorism, riot or civil commotion, trade embargo, strikes, lock-outs or other industrial action, and interruption of utility service;|
|Initial Term||12 months from the point the Customer accesses the Service;|
|Insolvency Event||means a party:|
(b)has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; or
(c)proposes to make any arrangement with its creditors;
|Intellectual Property Rights||any current and future intellectual property rights and interests including patents, utility models, designs, design rights, copyright (including rights in software), decryption rights, database rights, trade marks, rights pursuant to passing off, service marks, business and trade names, domain names, know-how, topography rights, inventions, rights in confidential information (including technical and commercial trade secrets) and image rights, and rights of a similar or corresponding character in any part of the world, in each case whether registered or not and including any application for registration and renewals or extensions of such rights in any country in the world;|
|SaloniQ||Intelligent Salon Software Ltd, trading as SaloniQ, a company registered in England and Wales with company number;|
|Services||the salon software services consisting of the cloud-based scheduling system, the Set-Up and any other services which SaloniQ provides or agrees to provide to the Customer;|
|Set-Up||the initial set-up and training provided by SaloniQ to the Customer;|
|Software||computer programs together with any technical information and documentation necessary for the use of such programs;|
|Virus||any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and|
|Year||a period of 12 (twelve) consecutive calendar months beginning on the Start Date and on each successive anniversary of the Start Date.|
1.2 In these Conditions (except where the context otherwise requires):
1.2.1 references to a party to these Conditions include a reference to its successors and permitted assigns under these Conditions;
1.2.2 any words following the terms “including”, “include”, “for example” or any similar expression are by way of illustration and emphasis only and shall not limit the generality or extent of any other words or expressions;
1.2.3 references to any legislation include any modification or re-enactment of that legislation and any subordinate legislation made (before or after these Conditions) under that legislation.
2 Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of SaloniQ which is not set out in the Contract.
2.3 Any samples, drawings, descriptive matter, or advertising produced by SaloniQ and any descriptions or illustrations contained on SaloniQ’s website are produced for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3 Use of the Services
3.1 SaloniQ grants the Customer a non-exclusive, non-transferable right to use the Services solely for the Customer’s internal business operations.
3.2 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.2.2 facilitates illegal activity;
3.2.3 depicts sexually explicit images;
3.2.4 promotes unlawful violence;
3.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.2.6 in a manner that is otherwise illegal or causes damage or injury to any person or property,
and SaloniQ reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause and remove any Customer Data, information or the electronic data uploaded by the Customer to its online account at its discretion without notice that is considered to breach the provisions of this clause.
3.3 The Customer shall not:
3.3.1 except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the parties:
184.108.40.206 and except to the extent expressly permitted under these Conditions, 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
220.127.116.11 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.3.2 access all or any part of the Services in order to build a product or service which competes with the Services; or
3.3.3 use the Services to provide services to third parties; or
3.3.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party; or
3.3.5 attempt to obtain, or assist third parties in obtaining, access to the Services.
3.4 The Customer shall prevent any unauthorised access to, or use of the Services and, in the event of any such unauthorised access or use, promptly notify SaloniQ.
3.5 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4.1. SaloniQ shall provide the Services to the Customer on and subject to the terms of these Conditions.
4.2 SaloniQ shall maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
4.3 SaloniQ shall use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.3.1 planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
4.3.2 unscheduled maintenance performed outside Business Hours, provided that SaloniQ has used reasonable endeavours to give the Customer at least 5 Business Hours’ notice in advance.
5 Customer Data
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 SaloniQ shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by SaloniQ or any third party.
5.4 If SaloniQ processes any personal data on the Customer’s behalf when performing its obligations under the Contract, the parties record their intention that the Customer shall be the data controller and SaloniQ shall be a data processor and in any such case:
5.4.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and SaloniQ’s other obligations under the Contract;
5.4.2 the Customer shall ensure that it is entitled to transfer the relevant personal data to SaloniQ so that SaloniQ may lawfully use, process and transfer the personal data in accordance with these Conditions on the Customer’s behalf;
5.4.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
5.4.4 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
6 Customer’s Obligations
6.1The Customer shall:
6.1.1 provide SaloniQ with all necessary co-operation in relation to the Contract and all necessary access to such information as may be required by SaloniQ in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
6.1.2 have and maintain adequate computer hardware and software to ensure they can access the functions of the Service;
6.1.3 comply with all Applicable Laws and regulations with respect to its activities under the Contract;
6.1.4 carry out all other Customer responsibilities set out in these Conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, SaloniQ may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary that it is responsible for (including in respect of the Customer Data), to enable SaloniQ to provide and the Customer to use the Services;
6.1.6 ensure that its network and systems comply with the relevant specifications provided by SaloniQ from time to time; and
6.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to SaloniQ’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
7 Price and Payment
7.1 The price of the Services shall be the price set out on SaloniQ’s website as at the date the Contract is entered into.
7.2 The Customer shall provide to SaloniQ valid, up-to-date and complete credit or debit card details and any other relevant valid, up-to-date and complete contact and billing details. The Customer authorises SaloniQ to bill such credit or debit card in arrears on a monthly basis, such billing may take place via direct debit.
7.3 The price of the Services is exclusive of VAT which is payable at the rate prescribed by law.
7.4 If the cost to SaloniQ of providing the Services is increased due to a change in an Applicable Law, then the amount of such increase will be added to the price after SaloniQ has given notice to the Customer of such increase.
7.5 For any upgrade or downgrade to the Service requested by the Customer, the Customer’s credit or debit card will automatically be charged the new rate on the next monthly billing cycle. Downgrading the Service may cause loss of Customer Data, features, or capacity of the Services, SaloniQ accepts no liability for any such loss.
8 Limitation and Exclusions of Liability
8.1 This clause 8 sets out the entire financial liability of SaloniQ (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:
8.1.1 any breach of these Conditions however arising;
8.1.2 any indemnity given under these Conditions;
8.1.3 any use made by the Customer of the Services or any part of either of them; and
8.1.4 any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions.
8.2 All warranties, conditions and other terms, express (other than those set out in these Conditions) or implied, statutory, customary or otherwise which but for this clause 8 would or might subsist in favour of the Customer, are (to the fullest extent permitted by law) excluded from these Conditions.
8.3 Nothing in these Conditions limits or excludes the liability of SaloniQ:
8.3.1 for death or personal injury resulting from negligence; or
8.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by SaloniQ; or
8.3.3 for any liability that is not permitted to be limited or excluded by law.
8.4 Subject to clause 3, SaloniQ shall not under any circumstances whatever be liable, whether or not arising pursuant to an indemnity, in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise for loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
8.5 Subject to clause 3, SaloniQ’s total liability, whether or not arising pursuant to an indemnity, in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with the performance or contemplated performance of the Contract shall in all circumstances be limited to a sum equal to price paid for the Services in the 12 months prior to the date on which the liability arises.
8.6 The Customer agrees to take all steps necessary to mitigate any losses, costs, expenses, claims and demands that it may seek to claim from SaloniQ under or in connection with the Contract including pursuant to any indemnity.
8.7 SaloniQ shall have no liability to the Customer to the extent of any non-conformance which is caused by use of the Servicescontrary to SaloniQ’s instructions, or modification or alteration of the Services by any party other than SaloniQ or its duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, SaloniQ will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.
8.8 SaloniQ does not warrant that the Customer’s use of the Serviceswill be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9 Intellectual Property
9.1 All Intellectual Property Rights belonging to a party prior to entering into the Contract will remain vested in that party.
9.2 The Customer acknowledges and agrees that SaloniQ and/or its licensors own all Intellectual Property Rights in the Services.
9.3 SaloniQ confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
9.4 The Customer shall not use any Intellectual Property Rights in SaloniQ’s trade marks and brands for any purpose without the SaloniQ’s prior written consent and then only if used in accordance with SaloniQ’s instructions as provided from time to time.
9.5 The Customer undertakes that the performance of its obligations under the Contract and SaloniQ’s use of the Customer Data will not infringe any Intellectual Property Rights of any third party.
9.6 SaloniQ shall indemnify, keep indemnified and hold harmless the Customer from and against all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses) costs, proceedings, damages and expenses (including legal and other professional fees and expenses) suffered or incurred by the Customer as a result of or in connection with any claim that:
9.6.1 the provision of the Services, or receipt of them by the Customer; or
9.6.2 the Customer’s use of any Intellectual Property Rights provided by the Supplier,
infringes the Intellectual Property Rights or other proprietary rights of any person.
10.1 The Customer shall keep confidential any Confidential Information that it may acquire and shall not us the Confidential Information for any purpose other than to perform its obligations under the Contract and will ensure that its officers and employees comply with the provisions of this clause 10.
11 Term and Termination
11.1 Subject to the provisions for early termination in clause 2, the Contract shall continue for the Initial Period, and thereafter until terminated by the Customer giving not less than 90 days’ notice in writing to SaloniQ (any such notice to expire on or after the Initial Period). SaloniQ shall delete all Customer Data 120 days from the date on which the Customer terminates the Contract.
11.2 SaloniQ shall be entitled to terminate the Contract immediately upon giving notice to the Customer:
11.2.1 if the Customer commits a material breach and such breach is not capable of remedy or is capable of remedy, and the Customer fails to remedy the breach within 20 (twenty) Business Days after receipt of notice giving full particulars of the breach and requiring it to be remedied;
11.2.2 an Insolvency Event applies to the Customer; or
11.2.3the Customer fails to make any payment due to SaloniQ under the Contract within 5 Business Days after the due date for payment.
11.3 The Customer’s rights to access and use the Services shall terminate immediately when the Contract is terminated, for whatever reason.
11.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
12 Force Majeure
12.1 Neither party shall be liable to the other for any delay or non-performance of its obligations under the Contract arising from any Force Majeure Event.
13.1 Any notice given shall only be effective if it is in writing, sent to a party at its registered address (or such other address that party may notify the other in accordance with this clause 13) and is given in accordance with clause 2.
13.2 Any notice will be deemed to have been duly served:
13.2.1 if delivered before 4.00 pm on a Business Day, at the time of delivery or, if in any other case at 10.00 am on the next Business Day following the date of delivery;
13.2.2 if posted from within the UK, at 10.00 am on the second Business Day after it was put into the post; or
13.2.3 if sent by facsimile process, at the expiration of four hours after the time of despatch, if despatched before 3.00 pm on any Business Day, and in any other case at 10.00 am on the next Business Day following the date of despatch.
14.1 SaloniQ may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of SaloniQ.
15 Entire Agreement
15.1 These Conditions contains all the terms which the parties have agreed with respect to its subject matter and supersedes all previous agreements and understandings between the parties (whether oral or in writing) relating to such subject matter. Each party acknowledges and agrees that it has not been induced to enter into the Contract by a statement or promise which it does not contain.
16 Third Party Rights
16.1 For the purposes of the Contracts (Rights of Third Parties) Act 1999 the parties do not intend that any person who is not a party to the Contract shall have any right to enjoy the benefit or enforce any of the terms of the Contract.
17.1 No purported amendment or variation of the Contract or any provision of these Conditions shall be binding on the parties unless it is set out in writing and signed by an authorised representative of SaloniQ.
18.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.1 If any provision of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable then it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible that provision shall be deemed to be omitted from these Conditions and the validity and enforceability of the other provisions of these Conditions shall not be affected or impaired.
20 Governing Law and Jurisdiction
20.1 The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or any term of it and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature) shall be governed by, and construed in accordance with English law and the parties irrevocably agree that the English Courts shall have exclusive jurisdiction.