SpaGuru Software License Special Terms

Version 1.0. Last updated on 19 December 2013.

1. Introduction

These special terms contain the commercial terms between us and you relating to the licensing of software by us to you.

2. Definitions

In these special terms:

2.1 copyright means all present and future rights of copyright in and to the software, including initial drawings, sketches, flowcharts, designs and operational instructions relating to the software;

2.2 documentation means any available installation and operating instructions, user and support manuals and technical literature pertaining to the software as supplied by us with the software;

2.3 intellectual property rights means all present and future intellectual property rights in and to the software, including registered patents and patent applications, registered and unregistered designs and trademarks, the copyright, confidential information, technical know-how and any related intellectual property rights, including the right to have all of them registered in our name;

2.4 requirements means the minimum hardware, software and communications requirements for the software as detailed in the order;

2.5 software means the scheduling, point of sale, marketing, CRM, reporting and management software;

2.6 updates means any minor update, correction, by-pass or revision to the software, excluding upgrades, which add no functionality to the software that are provided to you under these special terms;

2.7 upgrades means any major modification to the software, excluding updates, which increases the functionality or changes the technology or version of the technology of the software that are provided to you under a separate order;

3. Evaluation licence

3.1 Licence grant. We grant you a non-exclusive, non-transferable licence to use the software in object code form for your own business purposes only for the purposes of evaluating and testing the software.

3.2 Restrictions. The restrictions on the licence under these special terms will apply. You may evaluate and test the software for an evaluation period of 14 days. The evaluation license granted to you will commence on the effective date and, unless terminated, will continue for the evaluation period. After the evaluation period it will automatically terminate, unless otherwise agreed by the parties in writing. The functionality of the software will be automatically reduced unless you register the software.

4. Copies and relocation

4.1 Number of copies. You must maintain an up-to-date written record of the number of copies of the software and their locations and upon request forthwith produce the records to us.

4.2 Copies. The licence granted to you under these special terms also entitles you to copy the software into any machine readable or printed form on any computer including for back-up or archival purposes in order to use the copy in place of the original software supplied by us.

4.3 Safe custody. You agree to keep the copies of the software under safe custody.

4.4 Acceptance. You accept the licence granted to you in terms of these special terms;

4.5 Rights in the software. You:

acknowledge that no title or rights of ownership, copyright or any other intellectual property rights in the software, including all upgrades and updates will be transferred to you;
understand that the software contains proprietary information and agree that you will not make the software and related documentation available to any other person; and
acknowledge that the software has significant commercial value to us and agree to indemnify us in respect of any losses or expenses incurred by us as a result of the unauthorised use of the software by any third party.

4.6 Restrictions on license. You must not:

except to the extent as may be permitted by law, modify, translate or create derivative works based on the software, nor reverse assemble, de-compile or reverse engineer the software, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of the software or any files contained in or generated by the software, nor may it permit, whether directly or indirectly, any third party to do so;
merge or combine the whole or any part of the software with any other software or documentation without our prior written consent;
grant any third party direct access to the software, including by way of lease, download, as an application or bureau service provider or any other method;
use the software to provide an application or bureau service to any third party;
lend or transfer any part of the software to any third party;
sub-license or otherwise transfer the use of the software, whether in whole or in part, to any third party; or
remove any proprietary notices or labels on the software.

5. Third party software

We use third party server software. Third party software terms apply.

6. Supply, installation and acceptance

6.1 Delivery of software. We will deliver an object code version of the software together with any related documentation to you on the effective date. Delivery will be made either be in person by us to your address shown on the face of these special terms or by way of digital download over the Internet.

6.2 Testing. If we are responsible for installing the software, we will run the commissioning tests we consider necessary to ensure that the software is installed correctly.

6.3 Acceptance. When these tests are completed, you will be deemed to have accepted the software. This is applicable to the software, and also to any updates and upgrades.

7. Support

We will provide a help desk from 09:00 to 16:00 on business days. You are able to contact the helpdesk by email or telephoning The email address and phone number are provided on our website. Emergency phone support is offered on weekends from 09:00 until 12:00. When logging a support request, you must (i) provide the assistance and input as we may reasonably require to enable us to provide the support services and (ii) establish all necessary software and hardware maintenance contracts with all third parties and vendors for software and hardware that you provide.

8. Our liability

8.1 Additional limitation. In addition to the limitation of our liability under the customer relationship terms, we will not be liable for any delay, failure, breakdown, damage, loss, costs, claim, penalty, fine or expense arising from:

use of the software other than in accordance with these special terms and the requirements;
you effecting any changes, modifications or enhancements to the software without our prior written consent;
operator error by you, or any fault in the hardware, third party software or software supplied to or obtained by you from any entity other than us;
the intentional or negligent act or omission of any person who is not a member of our personnel;
your negligence;
the actions or omissions of any telecommunications authority or a supplier of telecommunications services; or
any other cause, including the failure or fluctuation of electrical supplies, accidents or natural disasters.

8.2 Liability for backup services. Clause 21 (limitation of liability) of the customer relationship terms is supplemented by the following: Where Spa Guru provides backup services, Spa Guru agrees to reconstruct data lost due to Spa Guru’s acts or omissions in the course of supplying the backup services. However, Spa Gurus sole liability will be to restore that data from the most recent backup copy of that data available.

9. Warranties

9.1 Our warranties. We warrant that:

we are entitled to grant and have the rights necessary to grant the licence contemplated in these special terms;
at the time of delivery of the software, it is a complete, accurate and up-to-date copy of the current release;
the software is designed to conform to the specification applicable at the time of these special terms, but the we do not warrant that the software will work without interruption or that it is error-free; and
for a period of 30 calendar days from the effective date the software will comply with the functional specifications when used in accordance with the requirements, the documentation and these special terms.

9.2 Your remedies. Our only obligations in the event of breach of these warranties will be:

where the software has been developed or is owned by us, to remedy any non-conformity of the software to its specification;
in the case of third party software, to obtain and supply a corrected version where you are able to show non-conformity to the specification, or if any acceptance tests are being carried out by us, the date on which they are completed, whichever is the later.

9.3 Exclusive. The warranties in this clause are exclusive and in lieu of all other warranties, whether statutory, express or implied.

9.4 Your acknowledgments. You acknowledge that:

the software has not been produced to meet your individual specifications;
the software cannot be tested on every possible operating combination and environment; and
it is not possible to produce software known to be error-free in all circumstances.

10. Intellectual property rights

You will not question or dispute the ownership of any of the intellectual property rights at any time.

11. Termination

11.1 Destroy after termination. Within 30 calendar days after the date of termination of these special terms, you must return to us, or destroy the applicable original and all copies of the software and documentation, in accordance with the written instructions from us, failing which, they will be destroyed in any form, in whole or in part, and your officer will certify to us in writing that it has been done.

12. Data

12.1 Your data. You are solely responsible for: (i) ensuring that you have the necessary rights, permissions and licences to use your data on the software and (ii) the acts and omissions of any users of your data.

12.2 Ownership of your data. As between the parties, you are the owner of all right, title and interest (including intellectual property rights) in and to your data. You grant us a limited, non-exclusive, non-transferable right and license during the term of each applicable order to use and your data solely in connection with performing our obligations under the agreement.

12.3 Privacy and access to your data. We do not have control over your data. You are the responsible party for purposes of applicable protection of personal information laws.

13. Services

If you require any services (including any software as a service, consulting, implementation, training, software development or other services) to be provided in respect of the software, then the services will be provided subject to the terms of a separate services order that will be concluded between the parties.