QK TECHNOLOGIES – SOFTWARE LICENCE AND HOSTING TERMS AND CONDITIONS
WARNING: READ THIS LICENCE CAREFULLY. YOUR USE OF THIS SOFTWARE AND THE HOSTING SERVICES (IF APPLICABLE) IS CONDITIONAL ON YOU AGREEING TO THE TERMS SET OUT BELOW. BY INSTALLING, DOWNLOADING, COPYING OR OTHERWISE USING THE SOFTWARE AND ACCESSING THE HOSTING SERVICES (IF APPLICABLE), YOU ACCEPT AND AGREE TO BE BOUND BY THE FOLLOWING TERMS. ACCEPTANCE LEGALLY BINDS YOU AND ALL OF YOUR EMPLOYEES TO THE TERMS OF THE LICENCE. IF YOU DO NOT ACCEPT THESE TERMS THEN DO NOT INSTALL, DOWNLOAD, COPY OR USE THE SOFTWARE OR ACCESS THE HOSTING SERVICES.
1. Definitions and Interpretation
- 1.1 Definitions
- In this Agreement:
- (1) “Agreement” means this agreement constituted by the Schedule, these terms and conditions and any modifications authorised in accordance with these terms and conditions
- (2) “Business Day” means any day other than a Saturday, Sunday or public holiday in Brisbane as well as any notified closures.
- (3) “Business Hours” means 8am to 5pm (inclusive) in Brisbane on a Business Day;
- (4) “Client Content” means all content or data provided by You and any Licensed User and entered in the Software as part of Your use of the Software and Hosting Services;
- (5) “Confidential Information” means, without limitation, the Intellectual Property, any information, whether technical or otherwise, trade secrets, advice, training programs, techniques, data, formula and other proprietary information and know- how, records, concepts, ideas, systems, designs, plans, drawings, specifications, visual representations, and any other methods and processes (and copies and extracts made of or from that information or data) concerning the Software, which is not in the public domain except by the failure of a party to perform and observe its Obligations under this Agreement;
- (6) “Documentation” means the operating manuals, training manuals and associated documentation including users’ manuals, programming manuals, modification manuals, flow charts, drawings and software listings whether in electronic or hard copy form;
- (7) “GST” means goods and services taxes, consumption taxes or value added taxes that apply at present or in the future in Australia, whether imposed by the Commonwealth or a State or Territory of Australia.
- (8) “Hosting Fee” means the fee payable for the Hosting Services which are specified in the Schedule but subject to variation by QK by written notice to You;
- (9) “Hosting Services” means, subject to the terms of this Agreement:
- (a) accommodating the Software and Client Content within a hosted facility provided by QK;
- (b) ensuring that the Software operates within the Hosted facility and
- (c) providing You with access to the Hosted Service for the purpose of operating the Software and accessing the Documentation and uploading Client Content.
- (10) “Intellectual Property” means all intellectual property rights in relation to the Software, including (without limitation) any:
- (a) copyright;
- (b) trade marks;
- (c) Confidential Information; or
- (d) licence or other right or future right to use or to grant the use of any of the above or to be the registered proprietor or user of any of them;
- (11) “Licence Fee” means the fee relating to the Software as specified on registration of the Software but subject to variation by QK by written notice to You;
- (12) “Licensed User” means a concurrent user of the Software and the Documentation at the Premises authorised by You to use the Software;
- (13) “Maintenance Fee” means the fee payable for to the Maintenance Services as specified in the Schedule but subject to variation by QK by written notice to You;
- (14) “Maintenance Services” means:
- (a) generally ensuring that the Hosting Services remains compatible with software generally used to access the Internet;
- (b) delivery (but not installation) of updated versions and enhancements (if any) of the Software and the Documentation as made available by QK to Licensed Users generally from time to time;
- (c) provision of hotline support or support by email or online for a cumulative total of one (1) hour per month during Business Hours; and
- (d) the maintenance of a help file and providing access to Licensed Users to that help file to assist them in using the Software.
- (15) “Notice” means a written notice, consent, approval, direction, order or other communication;
- (16) “Notice Address” means in respect of a party, the address specified in this Agreement or the address last notified;
- (17) “Premises” means the child care centre operated by You as specified in the Schedule which may include more than 1 premises within a single agreement;
- (18) “QK” means QK Technologies (ACN 119 998 112) of PO Box 485 Morningside, QLD 4170;
- (19) “Schedule” means the schedule associated with this Agreement;
- (20) “Software” means the specific version of the QikKids computer software program including the Documentation, licensed by QK to You under this Agreement and, unless otherwise notified by QK, includes any updates, new releases, enhancements or improvements provided to You from time to time;
- (21) “You” includes the licensee of the Software as specified in the Schedule and any successors and assigns.
- 2.1 QK is the exclusive owner of the Software and, subject to your compliance with all terms and conditions of this Agreement; QK grants You a single non-exclusive, non-transferable license to use the Software and the related Documentation in relation to the Premises during the Term.
- 2.2 QK grants to You the license under this Agreement solely for the purpose of internal business management for which the Software is designed and You agree to use the Software solely for such purpose in relation to the Premises as described in the Documentation.
3. License Limitations
- 3.1 You must not provide the Software (or any copy thereof) to any third party without prior written consent from QK.
- 3.2 You may hold a single copy of the Software for backup and archival purposes only, provided that all proprietary notices included in the original are retained.
4. Hosting Services
- 4.1 Subject to payment of the Hosting Fee, QK will provide You with the Hosting Services throughout the Term.
- 4.2 QK shall use reasonable endeavours to ensure that the Software and the Client Content are available to Licensed Users via the Internet on a 24 hour, 7 day a week basis. QK shall respond to unplanned outages within 3 hours during Business Hours. QK will be entitled to disrupt the Hosting Services in order to carry out planned maintenance on its equipment.
- 4.3 QK does not and cannot control the flow of data to or from QK’s Internet Data Centre and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times actions or inactions caused by these third parties can produce situations in which Your access to the Hosting Services may be impaired or disrupted. Although QK will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, QK cannot guarantee that they will not occur and You release QK from all liability resulting from or related to such events.
- 4.4 QK Technologies (QK) acknowledges that QK is responsible for the security of cardholder data that QK Technologies possesses or otherwise stores, processes, or transmits on behalf of the customer. QK Technologies responsibility is limited to the QK systems managed and controlled as part of the PCI DSS in scope environment. Responsibility for card data commences once received by QK systems and cardholder information stored within QK systems. Customers are responsible for all PCI DSS requirements up to and including submission to QK systems.
5. Maintenance Services
- 5.1 Subject to payment of the Maintenance Fee, QK will provide You with the Maintenance Services throughout the Term.
- 5.2 QK shall use reasonable endeavours to provide telephone or online support during Business Hours. However, should You request that QK provide Maintenance Services outside Business Hours, QK will use commercially reasonable efforts to do so provided You pay QK at its current time and materials rates for professional fees and out of pocket expenses in providing the Maintenance Services.
- 5.3 Subject to clause 5.1 and except as otherwise expressly provided in this Agreement, QK has no obligation to provide maintenance or support for the Software and the installation and operation of the Software is at your risk.
- 5.4 Except as expressly provided in this Agreement, QK will provide such maintenance and support for the Software as it may consider appropriate from time to time at a price and of the terms reasonably determined by QK.
6. Your obligations
- 6.1 You must:
- (1) subject to the terms of this Agreement, not:
- (a) copy, reproduce, translate, adapt, vary or modify the Software without the written consent of QK;
- (b) decompile, disassemble, reverse engineer, create other products based on the product, merge the product or parts thereof or otherwise attempt to derive the source code of the Software (except to the extent that applicable laws prohibit that restriction); or
- (c) remove any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Documentation; and
- (2) pay the Licence Fee (and other fees payable) during the Term in the manner as directed by QK from time to time; and
- (3) supervise and control the use of the Software and ensure that You and Your employees, subcontractors or agents who have authorised access to the Software are made aware of the terms of this Agreement.
- (4) When using QikKids, this should be the sole software used to connect to the CCMS system. You should not use any other software to connect to the CCMS concurrently.
- (5) If you choose to stop using QK products and move to an alternate CCMS software provider you must notify us in writing prior to the change including the date this change will occur. From this point your access to CCMS via the QK software will be restricted to avoid future issues however you will continue to have read access to your data until the end of your current paid subscription period.
- (6) On ceasing the use of QK products, you can request a backup of your QikKids database (charges apply). QK will not provide ongoing access to your hosted service after your paid subscription has expired.
- 6.2 You warrant to QK:
- (1) you have cleared all rights required to place all of the Client Content in the Software (if any), and that the storage and hosting of Client Content in the Hosted Services will not cause QK to breach any person’s rights or any laws; and
- (2) that in accessing the Hosted Servicesand using the Software You will not infringe the rights of any person or breach any laws.
- 6.3 All of Your obligations under clause 6.1 apply in respect of Your own conduct, acts or omissions, and the conduct, act and omissions of all Licensed Users, and all of your employees, agents and contractors.
- 6.4 You must indemnify and continue to indemnify QK against all actions, claims, damage, proceedings or liabilities which QK may in any way incur by reason of:
- (1) any breach by You or any Licensed User of this Agreement;
- (2) Your negligence or the negligence of Your agents, employees or contractors or any Licensed User in connection with this Agreement; or
- (3) the use of the Software or the provision of the Hosting Services in accordance with this Agreement.
7. Intellectual Property
- 7.1 You acknowledge that QK retains all title, and Intellectual Property rights in the Software. You must not permit any act which infringes QK’s rights in the Software.
- 7.2 You must immediately report to QK any breach, suspected or otherwise, of QK’s rights in respect of the Software.
- 7.3 Editing of the forms contained within the Software for internal business purposes is permitted by QK for the purposes of this clause.
8. Evaluation Period
- 8.1 You are licensed to use this Software for evaluation purposes for the period of 30 days.
- 8.2 Use of this Software after the 30 day evaluation period expires requires You to pay for use of the Software pursuant to this Agreement and any unregistered use of the Software after the 30 day evaluation period is in breach of copyright laws.
- 9.1 This Agreement is effective from the date of Your acceptance of these terms and conditions until termination (“Term”).
- 9.2 The term of the agreement is for a minimum 12 month period with the anniversary of the agreement falling on the 1st of July each year. Each renewal of the agreement extends the term by a further 12 months to the next anniversary date.
- 9.3 If either party commits a material breach of its obligations under this Agreement and then fails to remedy that breach within 14 days of notification from the other party, then the party giving Notice may terminate this Agreement by further written Notice.
- 9.4 This Agreement will terminate immediately and without any further notice if You:
- (1) cease to operate Your business for any reason; or
- (2) there is a change in Your shareholders or directors so that more than 25% in voting power changes hands; or
- (3) upon You entering into bankruptcy, insolvency or liquidation or the occurrence of any other similar event.
- 9.5 In addition to any entitlement to fees owing, if You fail to make any payment in accordance with this Agreement, QK may (without prejudice to QK’s other rights and remedies under this Agreement) suspend performance of any or all of QK’s obligations under this Agreement until payment is made in full.
- 9.6 In the event of termination at the end of your term, You must immediately cease using the Software pursuant to this Agreement.
10. Effect of Termination
- 10.1 All obligations of confidentiality and restrictions on use, and all other provisions that may reasonably be interpreted to survive the termination of this Agreement, continue to bind You and Your employees after termination.
- 10.2 If You request termination part way through the Term, QK will not refund any unused portion of the fees paid to cover the use of the software for the term of the agreement.
- 11.1 Notices given under this Agreement must be in writing, signed by You giving the Notice or its authorised representative, and addressed to the Notice Address of the person to whom it is to be given.
- 11.2 Notices must be either:
- (1) delivered by hand;
- (2) posted by pre paid security or certified mail; or
- (3) transmitted by facsimile
- (4) Transmitted by email from an authorised email address,
- to the Notice Address of the person receiving the Notice.
- 12.1 You must not deal with this Agreement in any way by assignment, sub-licence or otherwise without the written consent of QK.
- 12.2 QK will be entitled to assign its rights and obligations under this Agreement without Your consent subject to procuring a deed under which the assignee covenants to be bound by the terms of this Agreement.
13. Confidential Information
- 13.1 The parties acknowledge that the existence and terms of, and the identity of the parties to, this Agreement are strictly confidential.
- 13.2 Except as stated in this Agreement, each party must not and must not permit any of its officers, employees, agents, contractors or related bodies corporate to disclose any Confidential Information to any person, other than its professional advisers or as required by law, without the prior written consent of the party to whom the Confidential Information relates.
- 13.3 This clause 13:
- (1) operates for the benefit of all parties; and
- (2) continues despite the termination of this licence.
- 14.1 QK warrants that:
- (1) it is the owner of the Software;
- (2) it has the right and authority to licence the Software to You; and
- (3) there are no outstanding restrictions or constraints on its right and authority to licence the Software.
- (4) it will provide the Hosting Services and the Maintenance Services (if applicable) to You in a professional manner and in accordance with its obligations under this Agreement.
- 14.2 QK does not warrant that:
- (1) the provision of the Hosting Services (if any) or any part of them will be continuous or uninterrupted;
- (2) the data transmitted or received by You through the use by You of the Software or the Hosting Services will be accurate or virus free;
- (4) Licensed Users will have continuous access to the Hosted Services or to the Software; or
- (5) the Client Content (if any) is secure from interference by third parties.
- 14.1 QK warrants that:
- 14.3 You acknowledge that:
- (1) performance of the Software and the Hosting Services depend on a number of factors outside QK’s control, including traffic on, and technical difficulties with, the Internet; and
- (2) the Hosted Services is secure within certain technical boundaries which You have considered and You agree that all liability which You or any third party may incur which is caused wholly or partly by one or more of these factors is Your responsibility.
15. Limitations of Liability
- 15.1 To the extent permitted by law, QK expressly disclaims all warranties of merchantability, fitness for a particular purpose or non-infringement of third parties rights.
- 15.2 QK makes no warranty that the Software will be error free or will operate without interruption. You indemnify QK against any loss, liabilities or damage that You or any third party may incur directly or indirectly from Your use or installation of the Software.
- 15.3 QK is not liable for any indirect or consequential damages arising out of a breach of this Agreement or the supply of defective software. You indemnify QK against all liabilities, costs and expenses arising out of any claim by a third party as a result of Your breach of this Agreement.
- 15.4 Where the applicable law prohibits the limitation of liability or damages, QK’s entire liability under any provision of this Agreement is limited solely to the performance of the services again, the resupply of goods, or the cost of re-performing, repairing or re-supplying goods or services and in any event, will not exceed the aggregate of the fees You have paid to QK pursuant to this Agreement.
- 15.5 You warrant that You have not relied on an representation made by QK or any representatives of QK which has not been expressly stated in this Agreement, or as to any profits or benefits which You may obtain from entering into this Agreement, and that You have relied entirely on Your own skill and judgement in deciding to enter into this Agreement.
- 16.1 You must pay GST on any taxable supply made by QK under this Agreement.
- 16.2 The payment of GST is in addition to any other consideration payable by You for a taxable supply. QK will deliver to You a valid tax invoice for any taxable supply.
- 17.1 QK may amend the terms of this Agreement by posting proposed amendments on a website or notifying You of the proposed amendments. All proposed amendments become binding on You as if they were terms of this Agreement 14 days after notification unless You reject the amendments prior to the expiration of that period. If You reject any proposed amendments, QK may immediately terminate this Agreement.
- 18.1 Failure or neglect by QK to enforce the terms of this Agreement at any time does not amount to a waiver of QK’s rights under this Agreement.
- 18.2 If any provision of this Agreement is found to be unlawful, void or unenforceable, then that provision will be severed from this Agreement and will not affect the validity and enforceability of the remaining provisions.
- 18.3 The laws of Queensland, Australia govern this Agreement.
- 18.4 You and QK submit to the non-exclusive jurisdiction of the courts of Queensland and the Commonwealth of Australia.