1. The agreement
CMS Hospitality’s software and services are provided by Valsoft Corporation Inc. (“CMS Hospitality”), 7405 Transcanada Highway, Suite 100, Montreal, Quebec, Canada.
Our services are provided under a Master Services Agreement, together with its exhibits, each Sales Order, each Statement of Work (SOW) and the Support Agreement (together, the “Agreement”). A Sales Order sets out the applications, quantities, fees and subscription term you have purchased. A SOW sets out any professional services such as implementation, training, configuration or data migration. If the MSA and a Sales Order or SOW conflict, the MSA applies, except for product descriptions, quantities and pricing, where the Sales Order or SOW applies.
2. Key definitions
- Application: the software, platform or solution identified in your Sales Order, such as GuestCentrix or TrustCentrix.
- Services: the software-as-a-service platform, applications, Support Services and Professional Services, collectively.
- Customer Data: the data you or your users create or enter into an Application.
- Users: individuals you authorise to use an Application, such as employees, contractors and agents, who have been issued login credentials.
- Subscription Term: the period you may use the Services, as set out in your Sales Order, including the initial term and any renewal terms.
3. Using the software
During your Subscription Term, we grant you a limited, non-exclusive, non-transferable and non-sublicensable right for your Users to use each Application for your internal business operations, within the scope set out in your Sales Order. You may copy the documentation for internal use with the Applications.
You must not exceed the usage limits in your Sales Order, such as the number of users, rooms or storage. A user subscription may not be shared between people, but it can be reassigned to a new user.
We may, at our expense and with reasonable notice, check your usage for compliance no more than once every 12 months, during business hours and without disrupting your operations. Any underpayment found must be paid within 30 days.
4. Your responsibilities
You are responsible for:
- keeping administrator and user login details confidential;
- your Users’ compliance with the Agreement;
- the accuracy, quality and legality of Customer Data, and the results of processing it;
- taking reasonable steps to prevent unauthorised access, and telling us promptly in writing if it happens;
- using each Application in line with its documentation and all applicable laws.
You must not, and must not allow others to:
- copy, modify, reverse engineer or create derivative works from the Applications or documentation;
- use the Applications to build a competing product;
- sell, rent, sublicense or otherwise make the Applications available to anyone other than your Users;
- bypass security features, or interfere with the integrity or performance of the Services;
- use the Services to store or send unlawful, infringing or malicious material;
- attempt to gain unauthorised access to the Applications or related systems.
5. Ownership and your data
Our software. CMS Hospitality and its licensors own all rights in the Applications, Services and documentation, including any improvements and modifications. Your right to use them ends when the Agreement ends.
Your data. You own your Customer Data. You allow us to use, store and process it only as reasonably needed to provide the Services, and to meet any obligations after the Agreement ends.
Feedback. If you send us suggestions about our products, we may use them freely. This doesn’t include your Customer Data.
6. Support and service availability
Standard support is included in your subscription fees and is provided under the Support Agreement. It covers guidance on using the Applications, reporting and resolving defects, and licensing help. Issues are prioritised by severity, with cloud outages handled 24/7/365. Response times are set out in your Support Agreement.
Availability. We aim to keep cloud Applications available at least 99.9% of the time each month. This excludes scheduled maintenance (notified at least 72 hours in advance and kept outside business hours), problems with your own internet connection, and use outside the documentation. Our recovery targets are a 24-hour recovery time and a 4-hour recovery point.
Not included in standard support: training and configuration, third-party hardware and software, custom development, API/SDK development support, and issues caused by misuse. These can be provided as Professional Services. We support the current major release and the one before it.
7. Professional services
Implementation, training, customisation, on-site support and consulting are available for an additional fee under a Statement of Work. Pre-approved travel expenses are charged separately. If you cancel or reschedule an on-site visit with less than 7 days’ notice, any travel cancellation or change fees are payable. Prepaid professional-services fees not used within 12 months of the invoice date expire.
8. Fees and payment
- Fees are set out in your Sales Order or SOW and are payable in the currency stated, plus applicable taxes, including GST in Australia.
- Invoices are payable within 30 days. Renewal fees are due by the first day of the renewal term.
- User subscriptions are based on the number purchased, not actual usage, and can’t be cancelled or refunded before the end of the term. Additional users can be added at any time, pro-rated for the rest of the term.
- Accepted payment methods: direct debit (no fee), credit card (2% processing fee), or bank transfer (annual payments only).
- If you dispute an invoice, tell us in writing within 20 days with details, and pay the undisputed portion.
- Overdue amounts may attract interest of up to 1.5% per month, or the maximum rate allowed by law if lower, together with reasonable collection costs.
- We may adjust subscription fees on each anniversary of your contract start date, or at renewal, with at least 30 days’ written notice.
9. Term, renewal and termination
Term and renewal. Each Sales Order starts on its effective date and runs for the initial term stated in it. It then renews automatically for the same period, unless either party gives written notice at least 60 days before the end of the current term.
Termination for breach. Either party may terminate the Agreement, or an individual Sales Order or SOW, if the other party commits a material breach and doesn’t fix it within 30 days of written notice, or becomes insolvent.
Suspension. We may suspend the Services if your account is 30 days or more overdue, excluding amounts in genuine dispute, or immediately if a breach threatens the security or performance of the Services or breaks the law. If service isn’t restored within 60 days of suspension, your data instance may not be recoverable.
Leaving CMS. If you ask in writing at least 14 days before termination, we can provide transition assistance, including an export of your Customer Data where practicable, charged at our professional-services rates. If you terminate because of our material breach, we refund any prepaid fees for the unused period.
10. Confidentiality
Each party will keep the other’s confidential information confidential, using at least reasonable care, during the Agreement and for 3 years after it ends. Your confidential information includes your Customer Data. Ours includes the Applications, documentation and our technical and business information. This doesn’t apply to information that is public, already known, independently developed, lawfully received from a third party, or required to be disclosed by law.
11. Warranties
We warrant that we hold the licences and permissions needed to provide the Services, and that the Applications do not infringe any third party’s intellectual property rights. We don’t warrant that the Services will be uninterrupted or error-free, and we aren’t responsible for delays or failures caused by public networks or the internet. Except as stated in the Agreement, and to the extent permitted by law, the Services are provided without other warranties.
12. Indemnities
We will defend you against third-party claims that your permitted use of an Application infringes their intellectual property, and pay any damages finally awarded. If an Application is affected by such a claim, we will obtain the right for you to keep using it, modify or replace it, or, if neither is possible, end that service and refund unused prepaid fees. You will defend us against third-party claims arising from your Customer Data or your use of the Services in breach of the Agreement.
13. Limitation of liability
Nothing in the Agreement limits liability for death or personal injury caused by negligence, for fraud, or for anything that can’t lawfully be limited. Subject to that, neither party is liable for loss of profit, revenue, business, goodwill, contracts, data or anticipated savings, or for any indirect or consequential loss. Our total liability under the Agreement is limited to the amount you have paid us under it. Nothing in these terms excludes rights you have under the Australian Consumer Law that cannot be excluded.
14. Publicity
Neither party uses the other’s name, trademarks or logo without prior written permission. With your consent, we may list your business among our customers, following your brand guidelines.
15. General
- Disputes. Both parties will first try to resolve any dispute through good-faith negotiation, starting with written notice. If it isn’t resolved within 30 days, either party may take legal action.
- Governing law. The Agreement is governed by the laws of South Australia, and disputes are heard in the courts of South Australia.
- Force majeure. Neither party is liable for delays caused by events beyond its reasonable control.
- Assignment. Neither party may assign the Agreement without the other’s consent, except to an affiliate or as part of a merger or acquisition by a non-competitor.
- Subcontractors. We may use subcontractors, but we remain responsible for our obligations.
- Notices. We may notify you of service changes through the Applications or by email.
- Entire agreement. The signed Agreement is the entire agreement between us and can only be changed in writing by authorised signatories. Terms in your purchase orders or other documents do not apply unless we agree to them in writing.
- Compliance. Both parties comply with anti-corruption and applicable export-control laws.