- Holimood Limited, a company incorporated in Hong Kong having its registered office at Workshop 1, 9/f, Gravity, 29 Hing Yip St, Kwun Tong, Hong Kong (the “Supplier”).
- Company or person that uses Booking Radar system to accept and treat bookings via system (the “Customer”).
Collectively referred to as the “Parties
” or individually as a “Party
- The Supplier has developed and provides a service consisting of internet access to application software at its remote computer location (Software-as-a-Service (SAAS)), known as Booking Radar (“Software”), for customers to use it as an online platform for reservation of the customers’ services, processing and scheduling customers’ orders, processing online payment for customers’ orders, for the purpose of and in the course of the customers’ business.
- The Customer wishes to use the Supplier’s Software and Services in its business operations.
- The Supplier agrees to provide the Software and Services and the Customer agrees to take, subscribe and pay for the Software and Services on and subject to the terms set out in this Agreement.
- The following definitions and rules of interpretation apply in this Agreement.
: any day which is not a Saturday, Sunday or public holiday in Hong Kong Special Administrative Region.
: means all confidential information (however recorded or preserved) disclosed by a Party or its representatives to the other Party and that Party’s representatives whether before or after the date of this Agreement in connection with this Agreement, including but not limited to:
- the existence and terms of this Agreement;
- any information that would be regarded as confidential by a reasonable business person relating to:
- the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
- the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
- any information developed by the parties in the course of carrying out this Agreement, including:
- for the Supplier, the Software, the Supplier Data, the results of any performance tests of the Software and the Services; and
- for the Customer, the Customer Data and the results of the Services.
: as defined in Clause 9.1(a), which constitutes Proprietary Information of the Customer.
: as defined in Clause 9.6.
: the fees payable by the Customer to the Supplier in respect of the Software and the Services as set out in Clause 2.
Heightened Cybersecurity Requirements:
any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer, its end users (including any authorised user), relating to security of network and information systems and security breach and incident reporting requirements.
: the services that the Supplier provides to allow the Customer to access and use the Software, including hosting set-up and ongoing services, as described in Schedule 3.
: the term of subscription as stated in Clause 2, subject to adjustment as set out in Schedule 1.
Intellectual Property Rights
: patents, rights to inventions, copyright and related rights, all other rights in the nature of copyright, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
: any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Software and Hosting Services, all as described in Schedule 2.
Normal Business Hours
: [9.00 am to 6.00 pm] local HK time, each Business Day.
: the service plan to which the Customer has subscribed, as identified in Clause 1 or any plan to which the Customer will subscribe after the expiry of the Initial Term. [Scope of the Plan is set out in https://booking-radar.com/en/pricing/
at the time on the date of this Agreement.]
: Customer Data and Supplier Data.
Service Level Agreement
: the service level agreement set out in Schedule 1.
: Hosting Services and/or Maintenance as applicable, given the context in which the term Services
: the Supplier’s proprietary software in machine-readable object code form only as described in Schedule 4, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this Agreement.
: all and any documentation (whether in human or machine readable form) relating to the Software, including all:
- operating manuals, user instruction manuals, and training materials; and
- documents associated with the creation, design, development, or modification of the Software, including technical or functional specifications, flow charts, algorithms, architectural diagrams, data models, build instructions, testing or configuration documentation, and technical data.
: the functionality specifications for the Software, as set out in Schedule 4.
: as defined in Clause 9.1(b) , which constitutes Proprietary Information of the Supplier.
: the term of this Agreement as set out in Clause 10.1.
: a business transaction between the Customer and the Customer’s customer concluded and paid via the use of the Software.
: 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.
a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities
shall be interpreted accordingly.
- Clause, Schedule, and paragraph headings shall not affect the interpretation of this Agreement.
- The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
- References to clauses and Schedules are to the clauses and Schedules of this Agreement.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- A reference to writing or written excludes fax but not email.
- Any words following the terms “including”, “include”, “in particular”, “for example”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders and a reference to a person includes a natural person, a corporation, or an unincorporated body (whether or not having a separate legal personality).
The Customer shall start the subscription of, and to use the Software and Services upon the Subscription Start Date stipulated above in this Clause 2 and pursuant to this Agreement.
- If the Services fail in any material respect to conform with the Software Specification, the Customer shall give the Supplier a detailed description of any such non-conformance (Error), in writing.
- With respect to any Errors contained in the Software, the Supplier shall use reasonable endeavours to correct any such Error within reasonable time upon the Supplier’s receipt of the notice of Error pursuant to Clause 2.2 above and, on completion, submit the corrected Software to the Customer.
- If the Customer does not provide any written description of Error to the Supplier pursuant to this Clause 2 above, the Software shall be deemed accepted.
- Payment of fees
- The Customer will pay the Fees in accordance with the payment terms of the Supplier set out in Clause 2, which forms part of this Agreement. Time is of the essence with respect to the Customer’s obligations to pay the Fees. The Customer’s failure to pay any Fees will constitute a material breach of this Agreement referred to in Clause 10.2.
- If the Customer’s use of the Software and the Services exceeds the level of services included in the Plan, the Customer will be billed for the additional usage and the Customer agrees to pay the additional fees in such manner as instructed by the Supplier.
- The Supplier reserves the right to change the amount of the Fees or the manner for charging for the Services at the end of the Initial Term or the then-current term.
- Hosting Services and Maintenance
- The Supplier shall perform the Services, including Hosting Services and Maintenance services.
- In relation to the Software:
- the Supplier hereby grants to the Customer on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence, without the right to grant sublicences, to allow the Customer’s authorised users to access the Software through the Hosting Services and to use the Software during the Term solely for the Customer’s business purposes;
- the Customer shall not store, distribute, introduce or transmit through the Hosting Services:
- any Virus,
- any Vulnerability; or
- any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
- the rights provided under this 4.2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;
- the Customer shall not:
- attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
- access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services
- subject to Clause 17, transfer, temporarily or permanently, any of its rights under this Agreement, or
- attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this Clause 4.2(d); and
- the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify the Supplier promptly of any such unauthorised access or use.
On and subject to the terms of this Agreement, the Supplier will provide to the Customer the Services according to the Plan and reasonable technical support in accordance with the Service Level Agreement.
- Customer’s obligations
- The Customer will comply with the Supplier’s published terms, policies, and all applicable laws and regulations in using the Software and the Services.
- The Customer will obtain and maintain any equipment and ancillary services necessary to connect to, access, or otherwise use the Software and the Services (including any necessary servers, web servers, network, modems, hardware, software, operating systems, and the like).
- The Customer will maintain the security of the Customer’s account(s) for using the Software and the Services, including the password(s) to such account(s) and all information contained in such account(s).
- The Customer will not, directly or indirectly:
- reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or any underlying structure, ideas, know-how, or algorithms relevant to the Services or any part of the Software;
- modify, translate, or create derivative works based on the Services or any part of the Software;
- make illegal or unlawful use of the Services or the Software;
- use the Services or any part of the Software for the benefit of a third party; or
- breach the terms of this Agreement or any applicable laws or regulations.
- The Customer acknowledges and agrees that the Supplier may, although has no obligation to do so, monitor the Customer’s use of the Software and the Services and may prohibit any use of the Software and the Services where the Supplier believes that such use is or may be in breach of this Agreement.
- The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software or Services.
- In the defence or settlement of the claim, the Supplier may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement without liability to the Customer. The Supplier shall have no liability if the alleged infringement is based on:
- a modification of the Software by anyone other than the Supplier; or
- the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by the Supplier; or
- the Customer’s use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
- The foregoing and Clause 8.5(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.
- LIMITATION OF LIABILITY
- This Clause 8 sets out the ENTIRE financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
- arising under or in connection with this Agreement;
- in respect of any use made by the Customer of the Services and the Software or any part of them; and
- in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
- Except as expressly and specifically provided in this Agreement:
- the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
- the Supplier makes no warranty or representation that the Services or the Software will comply with any Heightened Cybersecurity Requirements and the Customer assumes sole responsibility for compliance with the same; and
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
- Nothing in this Agreement excludes the liability of the Supplier:
- for death or personal injury caused by the Supplier’s negligence; or
- for fraud or fraudulent misrepresentation.
- The Service Level Agreement states the Customer’s full and exclusive right and remedy, and the Supplier’s only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.
- Subject to 8.3 and 8.4:
- the Supplier shall NOT be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement; and
- the Supplier’s TOTAL AGGREGATE LIABILITY in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Software and the Services during the 12 Months preceding the date on which the claim arose.
- Proprietary information and Confidentiality
- The Parties acknowledge that, to enable the provision of the Services:
- the Customer has disclosed or may disclose information or data (including information regarding the business, management, or structure of the Customer) to the Supplier which is not public knowledge (“Customer Data”); and
- the Supplier has provided the Software Documentation to the Customer and has disclosed or may disclose other information or data (including any information regarding existing or planned features, functionality, and performance of the Software) to the Customer which is not public knowledge (“Supplier Data”).
- Customer Data belongs to the Customer. The Customer owns all rights (including all Intellectual Property Rights), title, and interest in and to the Customer Data.
- Supplier Data belongs to the Supplier. The Supplier owns all rights (including all Intellectual Property Rights), title, and interest in and to the Supplier Data, as well as all or any improvements, enhancements, or modifications to the Software, and any applications, inventions, or other technology developed in connection with the Software.
- Each Party agrees to take reasonable precautions to protect and keep confidential the Proprietary Information of the other Party and not to use (except in performance of the Services or otherwise consented to by the other Party) or disclose the Proprietary Information to any third party.
- The obligation under this Clause will not apply in respect of any Proprietary Information that;
- is or becomes generally available to the public;
- was disclosed to the Party by a third party without restriction; or
- is required to be disclosed by law.
- For the avoidance of doubt, the Supplier has the right to collect and analyze any data and information relating to the provision, use, and performance of various aspects of the Software and related systems and technologies, including any data or information of or derived from the Customer’s use of the Software and the Services (“Derived Information”). The Supplier is free to, without any license or permission from the Customer and without paying any fees or payment to the Customer:
- use any Derived Information to improve and enhance the Software and the Services and for other development, diagnostic, and remedial purposes in connection with the Software and the Services and other offerings by the Supplier; and
- disclose such data solely in aggregate or in unidentifiable form.
- Term and termination
- This Agreement shall commence on the Effective Date and shall continue, unless otherwise terminated as provided in this Clause 10. This Agreement shall automatically renew for periods of Month, unless either Party notifies the other, in writing, at least [14 days [for monthly subscription / 30 days [for yearly subscription]] before the end of the then current term. Notwithstanding Clause 15.2 of this Agreement, the Customer may only terminate this Agreement by sending email to email@example.com or by post to the address of the Supplier set out above in this Agreement.
- Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
- the Customer fails to pay any amount due under this Agreement on the due date for payment;
- the Customer commits a material breach of any other term of this Agreement;
- the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 178 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32);
- the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company, partnership or limited liability partnership);
- the holder of a qualifying floating charge over the assets of the Customer (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
- a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 10.2(e) to Clause 10.2(l)(inclusive);
- the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; and
- the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
- On termination of this Agreement for any reason:
- all licences granted under this Agreement shall immediately terminate;
- the Customer shall not be entitled to any refund of Fees paid by the Customer under this Agreement;
- each Party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party;
- the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
- Warranty and disclaimer
- Each Party warrants that it has full power and authority to enter into this Agreement.
- The Supplier does not warrant that the Services and/or the Software will be uninterrupted or error free, nor does it make any warranty as to the results that may be obtained from use of the Services. The Services and the Software are provided on an “as is” basis and the Supplier disclaims all warranties, express or implied, including any implied warranties of merchantability or fitness for any particular purpose and non-infringement.
- The Supplier will use commercially reasonable efforts to respond to any problems about the Services detected by the Supplier and/or reported by the Customer in accordance with the Service Level Agreement. The Supplier, however, does not guarantee that all problems can be fixed within any specific time frame.
- The undertaking at Clause 11.3 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to the Supplier’s instructions or modification or alteration of the Software by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Software does not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 11.3. Notwithstanding the foregoing, Supplier does not warrant that the Software and Services will be free from Vulnerabilities or that the Customer’s use of the Software and the Services will be uninterrupted or error-free.
- This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Agreement.
- In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which the Supplier shall remain fully liable).
- Force majeure
Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; and (g) interruption or failure of utility service. The time for performance of such obligations shall be extended accordingly.
No failure or delay by a Party to exercise any right or remedy provided under this Agreement 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.
- If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
- If any provision or part-provision of this Agreement is deemed deleted, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- All notices required or permitted by this Agreement shall be in writing and in the English language and shall be sent to the recipient by hand, by courier, by registered post, by fax, or by email at its address set out above (or such other address as notified by the recipient to other parties from time to time), or as otherwise directed by the recipient by notice given in accordance with this Clause.
- Notices shall be deemed to have been duly given and received:
- if delivered by hand or sent by courier, notice will be deemed given on the date of receipt;
- if sent by registered post to an address in the same country, on the second (2nd) business day after posting; or if sent to an address not in the same country, on the fifth (5th) Business Day after posting; or
- if sent by email, at the time of transmission (unless a return email is received by the sender within that period stating that the addressee’s email address is wrong or that the message cannot be delivered).
- This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Entire agreement
- This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
- Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement.
- The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Agreement.
- The Supplier may at any time assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Agreement.
No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorized representatives).
This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
This Agreement is personal to the parties. The provisions of the Contracts (Rights of Third Parties) Ordinance (Cap 623) do not apply to this Agreement. No person who is not a party to this Agreement (whether or not such person is named, referred to, or otherwise identified, or form part of a class of persons so named, referred to, or identified in this Agreement) shall have any right under the Contracts (Rights of Third Parties) Ordinance to enforce this Agreement or to enjoy the benefit of any term of this Agreement.
- English Version and Chinese Translation
This Agreement is written in English language with a Chinese translation. If there is any discrepancy or conflict between the English version and the Chinese translation, the English version prevails.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region.
The parties irrevocably agree that the courts of Hong Kong Special Administrative Region have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
SCHEDULE 1 – Service Level Agreement
- Service availability
The Supplier shall provide at least a 99% uptime service availability level (Uptime Service Level
). This availability refers to an access point on the Supplier hosting provider’s backbone network. It does not apply to the portion of the circuit that does not transit the hosting provider’s backbone network, as the Customer is responsible for its own internet access. Availability does not include Maintenance Events as described in 1.1 of Schedule 2, Customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by the Supplier to perform the Services), or outages or disruptions attributable in whole or in part to force majeure events within the meaning of Clause 12.
- Availability measurement
All measurements are performed at five-minute intervals and measure the availability of an availability test page within the Software within 30 seconds. Availability measurement begins on the first day of the first calendar month, beginning not less than 30 days after the Subscription Start Date. Availability measurement shall be carried out by the Supplier and is based on the quarterly average percentage availability, calculated at the end of each yearly quarter as the total actual uptime minutes divided by total possible uptime minutes in the yearly quarter. The Supplier shall keep and shall send to the Customer, on request, full records of its availability measurement activities under this Agreement.
Schedule 2 – Maintenance
- Service credits
- If availability falls below the Uptime Service Level (as defined in 1 of Schedule 1) in a given calendar month (Service Delivery Failure), the Supplier shall credit the Customer’s account by an amount calculated as the product of the total cumulative downtime (expressed as a percentage of the total possible uptime minutes in the month concerned) and the Fees owed for that month (Service Credit).
- A Service Credit shall not be payable unless the Customer requests it within 40 Business Days of the service-affecting event(s). The maximum Service Credit allowable in a given month is limited to an amount equal to the total Fees owed by the Customer for that month.
- The Customer acknowledges and agrees that the terms of this Schedule 1 relating to Service Credits constitute a genuine pre-estimate of the loss or damage that the Customer would suffer as a result of the Supplier’s Service Delivery Failure and are not intended to operate as a penalty for the Supplier’s non-performance.
Schedule 3 – Hosting Services
- Maintenance Events
- Routine, planned maintenance of the hosting equipment, facility, Software or other aspects of the Hosting Services that may require interruption of the Hosting Services (Maintenance Events) shall, except for any emergency maintenance, not be performed during Normal Business Hours. The Supplier may interrupt the Services to perform emergency maintenance whenever the Supplier considers necessary at its sole discretion. In addition, the Supplier may interrupt the Hosting Services outside Normal Business Hours for unscheduled maintenance whenever the Supplier considers necessary at its sole discretion. The Supplier shall at all times endeavour to keep any service interruptions to a minimum.
- The Supplier may determine, at its sole discretion, that providing appropriate service levels requires additional equipment and/or bandwidth, and may install that equipment and/or bandwidth without approval from the Customer.
- Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Software Specification. Support for additional features developed by the Supplier, as requested by the Customer, may be purchased separately at the Supplier’s then current rates.
- The Supplier shall maintain and update the Software. Should the Customer determine that the Software includes a defect, the Customer may at any time file error reports. During maintenance periods, the Supplier may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. The Supplier shall use all reasonable endeavours to avoid unscheduled downtime for Software maintenance.
- Hosting set-up
The set-up phase of the Hosting Services includes those services provided by the Supplier or its contracted third parties to design, install, configure and test the Hosting Services, as well as the hosting facility and internet connectivity.
- Installation and configuration
The Supplier shall procure, install and configure the hosting equipment to provide access to the Software.
- Internet connectivity
- The Supplier shall provide internet connectivity through an internet service provider at the hosting facility. The Customer shall make its own arrangements for internet access in order to access the Software.
- Continuing Hosting Services
The continuing Hosting Services provided by the Supplier or its contracted third parties, which allow for availability of the Software, include internet connectivity (as detailed in 3 above) access to the Software, load distribution management, security services, monitoring, back-up, release management and change control, and administration services.
- Administration services
These services include the installation and administration of additional hardware, operating system and other software, and other resources as necessary to maintain the Hosting Services.
Schedule 4 – Software
The Software is an application that enables the Customer to use it as an online platform for reservation of the Customers’ services, processing and scheduling Customers’ orders, processing online payment for Customers’ orders, for the purpose of and in the course of the Customers’ business, via the internet. The Software consists of the following functions:
- Online booking service function for Customer’s customers to check prices and product details online, and conduct bookings directly;
- Calendar function for Customer to view the Customer’s orders in one schedule;
- Booking modules function which allows the Customer to set up charges according to number of people, hours and days, plus the price of extra services;
- Brand official website creation with online reservation function, for connection with Customer’s existing website or social platforms e.g. Instagram, Facebook, WhatsApp;
- Business analysis dashboard function which provides the Customer with real-time data, including revenue, number of visitors, number of bookings; and
- Various online payment methods listed on the user backend for Customer to collect fees.