1. License and Annual Maintenance Fee

1.1. The Customer shall pay to VALSOFT the License Fee, for (i) the supply and licence of each Software item, at each Location detailed in Attachment 2 and the Annual Maintenance Fee for (ii) the Software Support Service and the Emergency Support Service for the same Locations.

1.2. In the absence of configuration information being provided to VALSOFT, all new locations shall have a Monthly Subscription Fee, or License Fee, and Annual Support & Maintenance Fee of equal to that of current highest priced property. The correct fee will be applied from the date when the configuration information is provided to VALSOFT.

2. Payment of Fees and other Charges raised under this Agreement

2.1. Any Fee or part thereof, or any part of the Charges, not paid by the Designated Payment Date (the “Amount Outstanding”) may attract a service fee equivalent to 0.833% of the Amount Outstanding, per month calculated at daily rate. The Customer agrees that this is a genuine pre-estimate of the damages suffered by VALSOFT in respect of the non-payment of any Amount Outstanding.

2.2. If any Amount Outstanding is not paid within thirty (30) days of the Designated Payment Date, then VALSOFT may, after (i) complying with section 20 and (ii) in circumstances where the dispute resolution procedure in section 19 has not resolved the dispute, suspend further Services until further notice, or terminate this Agreement.

3. Licence and Conditions of use of the Software

The Customer agrees with VALSOFT as follows:

3.1. Not to operate or use the Software otherwise than at the Locations specified or agreed to in writing with VALSOFT.

3.2. Not to integrate third party systems without the prior written approval of VALSOFT.

3.3. Not to sub-licence, lease or rent any portion of the Software.

3.4. Not to part with possession of the Software, or any manuals or other associated documents or any manual reproduction thereof or any machine other than as required to operate and use the Software at each Location.

3.5. Not to reproduce, copy, reverse engineer, modify or in any manner, imitate the Software functionality, the procedures manual, magnetic or electronic media, or any part thereof except for purposes for internal use, training and back-up. The Customer acknowledges that intellectual property rights in such back-up copies continue to be owned by VALSOFT.

3.6. To notify VALSOFT in writing of any damage to, or the loss, theft or destruction of, its system, the Software, the magnetic or electronic media upon which it runs or any part thereof, within seven (7) days of the occurrence of any such event.

3.7. Customer will be solely responsible for the use, supervision, management and control of the Software, and the magnetic or electronic media upon which it runs.

4. Care and Security of the Software

4.1. The Customer shall ensure that VALSOFT has full access to the Software and shall make available to VALSOFT’S technicians, all appropriate staff of the Customer which VALSOFT may reasonably require. Given such staff is familiar with the Customer’s operations and technology, to enable VALSOFT to carry out the Services to be provided under this Agreement.

4.2. The Customer acknowledges that it must:

4.2.1. assure proper operating methods consistent with the instructions (if any) contained in the procedure manual;

4.2.2. establish and implement adequate back-up plans;

4.2.3. implement procedures and checks to secure its own data and to restart and recover that data in the event of malfunction;

4.2.4. implement or comply with any requirements of any responsible government, government authority or agency where non-implementation or non-compliance may adversely affect VALSOFT’s rights hereunder.

4.3. VALSOFT acknowledges that it must:

4.3.1. Assure proper operating methods for providing Support Services consistent with industry best practice and the Customer’s procedure as advised from time to time by the Customer;

Ensure any data stored in the Software or Licensing Routines is protected and stored in a safe and compliant manner as to protect the sensitivity of such data

5. Copyright and Intellectual Property

5.1. The Customer acknowledges that all copyright and all other proprietary and intellectual property rights in the Software, and the medium on which it runs including magnetic media, are owned by and at all times remain the property of VALSOFT or are duly licensed by it from any one of its associated entities.

5.2. VALSOFT warrants to the Customer that the Software does not infringe any intellectual property rights of any third party. VALSOFT shall indemnify the Customer from all actions and claims arising out of or incidental to any actual or alleged infringement of copyright or other intellectual property right in or to the Software.

5.3. Each party agrees to keep the other party’s Confidential Information in confidence in the manner set forth below:

5.3.1. The First Party will ensure that any Confidential Information provided to it by the other party is not disclosed to any third party, and that no third party is given access to the Confidential Information so provided.

5.3.2. The First Party agrees to keep the other party’s Confidential Information in the strictest confidence, in the manner set forth below:

i) It shall not copy, modify, enhance, compile or assemble (or reverse compile or disassemble), or reverse engineer the other party’s Confidential Information or anything containing or embodying the other party’s Confidential Information and shall not, directly or indirectly, disclose, divulge, reveal, report or transfer such Confidential Information to any third party or to any individual employed by the First Party, other than an employee of the First Party having a need to know such Confidential Information to properly carry out his duties.

ii) It shall not use any Confidential Information or the concepts therein for its own benefit or for the benefit of a third party or for any purpose other than the purpose for which such Confidential Information is being disclosed.

iii) It shall not remove any proprietary legends or notices, including copyright notices, appearing on or in the Confidential Information.

iv) It shall take appropriate action with respect to each and every person permitted access to any Confidential Information to ensure that each person complies with the confidentiality provisions hereof.

v) Any materials which are, or which relate to or derive from any, Confidential Information, shall be kept confidential, and all such materials shall be returned to the other party or destroyed by the First Party upon termination of this Agreement by effluxion of time or otherwise.

vi) The provisions of this Clause do not apply to the First Party where the Confidential Information disclosed:

(A) Was already known to the First Party;

(B) Was or becomes publicly known through no wrongful act of the First Party;

(C) Was before the disclosure rightfully obtained by the First Party from a third party without similar restriction and without breach hereof;

(D) Was used or disclosed by the First Party with the prior written authorisation of the other party;

(E) Was disclosed to a third party (including but not limited to government) pursuant to a requirement by lay to so disclose it, provided that, in such instance, the First Party:

(i) if possible before doing so-

a) notified the other party; and
b) gave the other party a reasonable opportunity to take any steps that the other party considered necessary to protect the confidentiality of that information; and

(ii) notified the third party that the information is Confidential Information of the other party

(F) Was disclosed pursuant to the order of a court of competent jurisdiction, provided that the First Party shall take reasonable steps to obtain an agreement with the other party or order to the greatest extent possible that the provisions of this Agreement relating to confidentiality will apply to and bind the First Party as if it were a party thereto.

vii) Disclosure. Notwithstanding anything contained herein to the contrary, in the event that the First Party is unintentionally exposed to any Confidential Information of the other party, the First Party agrees that it shall not, directly or indirectly, disclose, divulge, reveal, report or transfer such Confidential Information for any purpose to any entity or use such Confidential Information for any purpose whatsoever.

5.4. Ownership of Intellectual Property the parties acknowledge and agree that all the intellectual property comprised in the Software is the absolute property of VALSOFT or duly licensed by it and that the Customer’s right to use it will immediately cease upon the expiration or termination of this Agreement.

6. Limited Warranty

6.1. VALSOFT warrants that Software will perform and continue to perform the functions:

a) described in the documentation provided by VALSOFT;
b) described in any written material provided by VALSOFT to the Customer; and
c) present in any version of the Software provided to the Customer for evaluation or use prior to the execution of this agreement.

6.2. VALSOFT will use its best endeavours to ensure the Software meets the Customer’s requirements and will be uninterrupted and error-free.

6.3. VALSOFT is not responsible for problems caused by changes in the operating characteristics of computer hardware or operating systems which are made after the supply of the Software and which are outside the control of VALSOFT, or for problems in the interaction of the Software with other non-VALSOFT software.

7. Limitation of Liability

7.1. If any legislation implies terms in this Agreement which cannot be excluded, then those terms are deemed to be included in this Agreement. However, VALSOFT’S liability for a breach of such a term is limited to the maximum extent permitted by law to any one or more of the following, at VALSOFT’S option:

a) if the breach relates to goods:

i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of the goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; OR
iv. the payment of the cost of having the goods repaired; and

b) if the breach relates to services:

i. the supplying of the services again; or
ii. the payment of the cost of having the services supplied again.

7.2. Subject to Clause 18.1, all terms which might otherwise be implied in this Agreement are hereby excluded to the maximum extent permitted by law.

7.3. Except as otherwise provided in this Agreement and to the maximum extent permitted by law VALSOFT hereby excludes all liability for damages of any kind whatsoever (including without limitation, expectation, reliance, restitution, punitive, exemplary or disgorgement damages whether for loss of profits or loss of business or loss of business information or otherwise) other than as provided in clause 18.1.

7.4. To the maximum extent permitted by law, VALSOFT’S total liability to the Customer in connection with this Agreement is limited to the amount paid by the Customer to VALSOFT under this Agreement during the preceding 1 calendar year.

7.5. This Agreement states VALSOFT’S entire liability (including all relevant exclusions and limitations) to the Customer, the Customer’s representatives and all users in connection with this Agreement. Accordingly, because each Customer representative and user is not a party to this Agreement, the Customer will procure that the Customer representatives and users do not, whether acting individually or collectively, attempt to assert an action or claim against VALSOFT.

8. Dispute Resolution

8.1. If a dispute arises between the parties to this Agreement, then:

a) the party claiming that a dispute has arisen must give written notice to the other party to the dispute specifying:

i. the nature of the dispute (eg. background and the issues in dispute),
ii. the desired outcome of the complainant, and
iii. suggested action complainant believes will settle the dispute;

b) on receipt of the dispute notice, the parties to the dispute, including the complainant, must make every effort to resolve the dispute by mutual negotiation; and

c) if the parties to the dispute are unable to resolve the dispute within 14 days of receipt of the dispute notice (or such further period as is agreed between the disputing parties) then any party to the dispute may refer the matter to mediation in accordance with Clause 19.7.

A party to this Agreement must not commence legal proceedings in relation to a dispute unless that party has complied with this Clause. Nothing contained in this Clause will deny a party the right to seek injunctive or other

Important: a full detailed T&C can be provided. Please contact our CMS Hospitality Team for more information.