Welcome to the Spa Ninja Salon, Studio& Spa Management System (SSSMS) provided to you by Spa Ninja. This Agreement binds you if you use the Spa Ninja Services and contains the terms and conditions that govern your access to and use of the Spa Ninja Services and is made between Spa Ninja and you.Defined terms can be found at Clause 22.2 of this Agreement.
Spa Ninja SSSMS helps you manage your wellness Outlet(s) as listed in Appendix 2 or as amended from time to time in your Account Information, including spas, salons and reflexology centres, through real-time organisation of your bookings, your therapist and staff scheduling, your treatment rooms and much more. The software comprises the property management system, help resources, user manuals and documentation and any related technology as updated from time to time.
The Spa Ninja SSSMS connects you to the Guest, through the cloud-based interface and reservations system known as Yosiwa.
Collectively, the Spa Ninja SSSMS and Yosiwa are known as Spa Ninja Services. Guests are required to agree to Guest Terms and Conditions when they make a Reservation using Yosiwa.
This Agreement commences on the Execution Date.
1. SPA NINJA SSSMS LICENCE
Upon entering into this Agreement, we grant you a limited, revocable, non-transferable and non-exclusive licence to access and use the Spa Ninja Services only in accordance with this Agreement and for the purpose of:
a) Managing and processing Reservations and staff scheduling at your Outlet(s); and
b) Managing your Guest database.
You must not use any application, program, software, intellectual property or any other service that has a function materially similar to the Spa Ninja Services (whether in whole or in part) during the term of this Agreement for the purposes of reservation of Services at your Outlet(s), which you guarantee are not available for reservation on any other online channel, your own website included, other than through the Booking Button.
Your rights to use Spa Ninja Services are limited to those expressly granted in this Agreement. We reserve all rights and licences in and in relation to the Spa Ninja Services not expressly granted hereunder. As between us and you, the Spa Ninja Services and all intellectual property rights therein or relating thereto must remain the exclusive property of Spa Ninja, its licensors or assignees.
1.4 MARKETING AND PUBLICITY
You hereby grant us a licence, to use your trade name, logos and trademarks in our advertising, marketing and promotional materials and activities including on our websites and social media sites and in presentations, case studies, trade show materials, and other advertising, marketing and promotional media and collateral, during the term of this Agreement (including during any Renewal Term) including the right to publicly name you as a client of Spa Ninja in your home country or abroad.
2. YOUR ACCOUNT
2.1 ACCURATE INFORMATION
When you register to use the Spa Ninja Services you must provide all Account Information requested by Spa Ninja and the Account Information must be true, accurate, current and complete. You must maintain and promptly update your Account Information to keep it true, accurate, current and complete and by using Spa Ninja Services you warrant to us that the Account Information is true, accurate, current and complete.
2.2 USERNAME & PASSWORD
In order to use Spa Ninja Services you are required to open an Account. Once you have opened an Account, we will provide you with a username and password to enable access to the Account. You are responsible for maintaining control over access to your Account, including the confidentiality of your Account log-in and password, and are responsible for all activities that occur on or through your Account, whether authorized by you or not. Spa Ninja will not be liable for any loss or damage arising from your failure to maintain control over access to your Account.
You must advise us immediately if you become aware that an unauthorised third party has accessed your Account.
We reserve the right to prevent access to your Account and to change the username and password of your Account at any time without notice if we suspect for any reason that unauthorised activity is taking place on the Account, and we will notify you of any such action taken by us as soon as reasonably practicable.
Spa Ninja is not liable in the event that its use of firewalls and other technology fails to prevent unauthorised third party access to your Account, Account Information, Third Party Information, Guest Information, Content or any data you upload to Spa Ninja Services and the safety and security of the aforementioned remains your responsibility at all times.
3. VERSIONS AND SERVICE LEVELS
The Spa Ninja Services may be made available in free or paid versions and/or in different service levels. Not all of the features and functionality of the Spa Ninja Services may be available in each version or service level. The features and functionality of each version or service level may be changed from time to time at Spa Ninja’s absolute discretion.
3.2 CHANGE, SUSPEND OR DISCONTINUE
Spa Ninja reserves the right to change, suspend or discontinue part or all of any version of the Spa Ninja Services at any time, for any reason, without notice and without explanation.
4. USE OF THE SPA NINJA SERVICES
You agree not to:
a) Allow access to or use of the Spa Ninja Services by anyone other than you and your representatives;
b) Create internet “links” to or from the Spa Ninja Services, or “frame” or “mirror” any content forming part of the Spa Ninja Services other than solely for use in your own intranets or otherwise for its own internal business purposes;
c) Build a competitive product or service or build a product or service using similar ideas, features, functions or graphics of the Spa Ninja Services;
d) Copy any ideas, features, functions or graphics of the Spa Ninja Services, except in each case such use solely for your internal purposes;
e) Copy, modify, alter or distribute the Spa Ninja Services;
f) License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Spa Ninja Services available to any third party, other than as contemplated by this Agreement;
g) Reverse engineer, disassemble or attempt to derive the source code from the Spa Ninja Services;
h) Upload viruses, worms, trojans, or other harmful software to the Spa Ninja Services;
i) Interfere with or disrupt the integrity or performance of the Spa Ninja Services or the data contained therein; or
j) Transmit information that is illegal or otherwise infringes the rights of others, is abusive, pornographic, violent, racist, discriminatory, defamatory, harassing or threatening, and you agree that a breach of this clause will cause harm and detriment to Spa Ninja which may result in damages being payable by you to Spa Ninja.
5.1 OUR OBLIGATIONS
As part of the Spa Ninja Services we will act to promote your Outlet(s) and transact Booking Button Reservations and Referral Reservations by:
a) Arranging for appropriate Account Information or Content, as supplied by you in the appropriate format and subject to our approval, to appear on Yosiwa for the purpose of enabling Booking Button Reservations and Referral Reservations for your Outlet and promoting last minute Referral Reservations.
b) Providing you with the access to the Spa Ninja SSSMS to manage your Outlet(s) and availability of Services.
c) Holding Guests’ credit card (or other payment card) details to guarantee the Booking Button Reservations and Referral Reservation and to take payment of the relevant Cancellation Penalty in case of no-show or late cancellations, in accordance with Clause 7.
d) Referring disputes or complaints that we receive from Guests relating to a Guest’s experience at your Outlet to you for resolution and we confirm that Spa Ninja has no obligation to become involved in any dispute between you and a Guest, whilst reserving our right to do so;
e) We reserve the right, without notice, to amend or delete any Account Information or Content on Spa Ninja Services which, in our sole discretion, is defamatory, obscene, materially inaccurate, in breach of any law or advertising code of practice.
f) Spa Ninja may use firewalls and other technology to prevent unauthorised third-party access to our computer systems storing your Account Information and Guest Information as well as encryption technology to prevent unauthorised third party access but accepts no liability for the failure of any such measures and any loss whatsoever suffered by you as a result.
g) We may translate, edit and publish Guest reviews and your Account Information. You will not permit those translations that we have made of your Account Information nor our Guest reviews to be used for any other sales channels apart from our own. We cannot be held liable for the content of such translations or Guest reviews.
h) Spa Ninja or its affiliated companies are the owners or right holders of certain intellectual property rights, including but not limited to trademarks, copyright, service marks and logos. Nothing in this Agreement shall be construed as granting you a licence or any rights, implied or otherwise, to any of the Spa Ninja intellectual property rights. You authorise us to promote you using your name with online marketing, including email marketing and/or pay-per-click advertising. We may run campaigns at our discretion and we will pay the advertising cost on our online marketing campaigns.
5.2 YOUR OBLIGATIONS
a) You are responsible for updating your Account Information on the Spa Ninja Services as often as is necessary to ensure that all Account Information is accurate and up to date at all times, including prices, details of and availability of Services, and that Manual Reservations are entered into Spa Ninja SSSMS. If the Account Information you provide is wrong or misleading you agree to fully indemnify us and hold us harmless against all loss, liability or costs incurred by us as a result. We do not accept responsibility for any incorrect Reservation, over-booking of Reservations or incorrect prices which result from your failure to accurately update your Account Information on the Spa Ninja Services.
b) You are required to imbed a Booking Button on your website and Facebook page, which will direct Guests to Yosiwa to make Booking Button Reservations.
c) In the event of an incorrect or cancelled Referral Reservation caused by your failure to comply with your obligation 5.2(a) you shall liaise with the Guest and use reasonable endeavours to arrange and agree an alternative Referral Reservation with the Guest, if so requested by the Guest.
d) You are required to accept all Booking Button Reservations and Referral Reservations, subject to availability, and to provide the Services to the Guest to the best of your ability, and to deal with all Booking Button Reservations and Referral Reservations in accordance with all the relevant Account Information and this Agreement.
e) You must ensure that the terms and conditions on which you provide Services to Guests are compatible with this Agreement.
f) You must ensure that the prices of your Services offered on Yosiwa will be at least as favourable as for the same Services available for sale or communicated via any other medium (“Rate Parity Guarantee”).
g) You must ensure that all Services that you offer at each of your Outlets at any given time are listed and available on Yosiwa (“Availability Parity Guarantee”).
h) You must ensure that any promotions offered in respect of your Services listed on Yosiwa will represent all your promotions as are available for sale or communicated via any other medium (“Promotional Parity Guarantee”).
i) You warrant that you have all the necessary rights and authority to use and to license or authorise to use any copyrights, brands or logos referred to in your Content or Account Information and you keep us fully indemnified against any loss or claims against us by a third party arising from your breach of this clause.
j) You must ensure that the Guests present the following items upon arrival at the Outlet prior to providing the Services under a Booking Button Reservation or Referral Reservation:
i. Valid photo identification which matches the name on the Booking Button Reservation or Referral Reservation; or
ii. Proof of Booking Button Reservation or Referral Reservation.
k) You are responsible for taking all Guest payments made at your Outlet.
6. PAYMENT TERMS
Spa Ninja’s current bank account details are set out in Appendix 1 and may be changed from time to time by written notice to Your Email Address.
6.1 SPA NINJA SERVICES FEE
The Spa Ninja Services Fee for usage of the Spa Ninja Services is set out in Appendix 1 and may be amended annually on the anniversary of the Execution Date by providing you with written notice to Your Email Address at least 30 days in advance.
6.1.1 Payment of the Spa Ninja Services Fee
You warrant that the true, accurate, current and complete Billing Information and Payment Source information is set out in Appendix 2. You must promptly update Spa Ninja by email to the address provided in Appendix 1 or as amended from time to time in writing to you, when any Billing Information or Payment Source information changes.
6.1.2 Authorisation to Bill
You authorise Spa Ninja to automatically and immediately bill your Payment Source when the Spa Ninja Services Fee is due, without any further action on your part or other prior notice on the part of Spa Ninja. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.
6.1.3 Free Trial
If you are eligible to use the Spa Ninja Services for a Free-Trial Period, as set out in Appendix 1, and you do not cancel the trial before the expiration of the Free-Trial Period, then, upon the expiration of the Free-Trial Period, your account will be automatically converted to a paid account, the Initial Term as per Clause 14.1 will commence and your Payment Source will be billed accordingly.
A failure to opt out at the conclusion of your Free-Trial Period shall not give rise to any refund payable and payment will be continued until this Agreement is terminated in accordance with Clause 14.
Unless stated to the contrary, the Spa Ninja Service Fee is non-refundable, even if your use of the Spa Ninja Services is terminated before the end of the Initial Term or any Renewal Term.
You agree to pay Spa Ninja a Commission which includes:
a) Referral Commission on Reservation Revenue from Referral Reservations;
b) Booking Button Commission on Reservation Revenue from Booking Button Reservations; and
c) Cancellation Penalty Commission on Cancellation Penalties.
You have the option to increase your Commission rates to improve your ranking on Yosiwa. The Commission amounts are defined in Appendix 1 and as updated from time to time in writing as mutually agreed.
Commission is not payable on revenue from Manual Reservations.
6.2.1 Payment of the Remittance Amount
Spa Ninja will send a Remittance Statement to Your Email Address within 14 days of the end of each calendar month.
If Commission is greater than the Cancellation Penalties, and you do not raise a payment dispute within 7 days of the date of the statement, you authorise Spa Ninja to automatically and immediately bill your Payment Source for the Remittance Amount 7 days from the date of the statement, without any further action on your part or other prior notice on the part of Spa Ninja. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.
6.3 DECLINED PAYMENT CHARGE
If either the Remittance Amount or the Spa Ninja Services Fee billed to your Payment Source is declined for any reason a Declined Payment Charge as set out in Appendix 1 will be imposed.
Within 7 days from the date of the Declined Payment Charge, Spa Ninja will email a Notice of Non-Payment to Your Email Address.
7 days from the date of the Notice of Non-Payment, unless you raise a payment dispute, you authorise Spa Ninja to automatically and immediately bill your Payment Source for all outstanding charges, without any further action on your part or other prior notice on the part of Spa Ninja. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.
6.4 LATE PAYMENT
Failure to make a payment pursuant to a Notice of Non-Payment in accordance with Clause 6.3 is considered a material breach and your Account may be suspended at Spa Ninja’s absolute discretion. If your account is suspended, Spa Ninja may, but is not obligated to, maintain your Account Information and Content, in order to allow you to make past-due payments and restore your Account.
6.5 PAYMENT DISPUTE
Resolution of any payment dispute pursuant to clause 6.2.1 or 6.3 will be resolved through Clause 8.
All currency references are in the currency stipulated in Appendix 1.
Interest will be charged on late payments under Clause 6 at a rate of 5% accruing on a daily basis from the respective due date until payment.
7. RESERVATION CANCELLATIONS
7.1 CANCELLATIONS & CANCELLATION PENALTIES
All Referral Reservations and Booking Button Reservations will appear in your Spa Ninja SSSMS Calendar.
Guests can cancel their Referral Reservation and Booking Button Reservation with at least 24 hours’ notice with no financial penalty. In the event a Guest cancels their Referral Reservation or Booking Button Reservation with less than 24 hours’ notice Spa Ninja will charge the Guest a Cancellation Penalty as set out in Appendix 1.
You cannot cancel or edit Referral Reservations or Booking Button Reservations this may only be done by Guests through Yosiwa.
7.2 PAYMENT OF CANCELLATION PENALTIES
Spa Ninja will send a Remittance Statement to Your Email Address within 14 days of the end of each calendar month.
If Cancellation Penalties are greater than Commission, Spa Ninja will transfer the Remittance Amount to your bank account, as set out in Appendix 2 or as from time to time updated in your Account Information, within 14 days of the date of the statement.
8. BOOKS, RECORD & AUDIT RIGHT
8.1 SPA NINJA SSSMS IS CONCLUSIVE EVIDENCE
In case of payment dispute as to the amount of Commission, Cancellation Penalties or any other amount payable by either party under this Agreement the data held on Spa Ninja SSSMS shall be considered conclusive in determining the dispute.
8.2 RIGHT TO AUDIT
If Spa Ninja has reasonable grounds to believe that you have withheld Commission or acted fraudulently in such a way as to reduce the amount of Commission owed, in breach of your obligations under this Agreement, Spa Ninja may audit your records and books of account for the purpose of verification, review, and investigation and:
a) Parties shall promptly appoint an independent Auditor reasonably acceptable to both Parties, who will be permitted to conduct an audit in respect of the method and calculation of the Commission to be paid to Spa Ninja.
b) Parties shall provide the Auditor with all such information, data, co-operation, assistance and access to books and records of account, documents, files and papers and information stored electronically as the Auditor may reasonably require for the purpose of completing the scope of his/her assignment in a timely manner.
c) The Auditor will provide both Parties with a copy of his/her report which shall provide for the results and finding of the audit.
d) Audits will be conducted on business days during regular business hours.
e) Spa Ninja and you shall equally share the costs and expenses of the Auditor unless the Auditor determines otherwise on the basis of reasonableness and fairness. If the Auditor, in their absolute discretion, finds that you have breached this Agreement then the costs of the Auditor shall be payable in full by you.
f) A failure to comply with the terms of this clause 8.2 shall be a material breach of this Agreement.
The order in which your Outlet(s) are listed on Yosiwa is determined unilaterally by Spa Ninja, in our absolute discretion, using an automated algorithm which considers factors including but not limited to your committed and actual availability, Commission percentage, conversion (the ratio of site visits to Referral Reservations made), sales of Services, cancellations, and Guest reviews.
10. SUSPENSION OF SPA NINJA SSSMS SERVICES
Without prejudice to other rights we may choose to exercise, including termination, we may suspend the Spa Ninja Services if you:
a) Do not make timely payments in accordance with Clause 6;
b) Do not comply with the terms of Clause 8.2 (Right to Audit);
c) Post incorrect or misleading Account Information or Content on Spa Ninja Services;
d) Fail to maintain Account Information resulting in over-booking of Booking Button Reservations or Referral Reservations;
e) Fail to accept a Booking Button Reservation or Referral Reservation at the advertised price;
f) Receive one or more legitimate and serious complaint(s) from one or more Guest(s), and for the purposes of this clause the legitimacy and seriousness of the complaint is to be determined in the absolute discretion of Spa Ninja;
g) Misuse the Guest review process;
h) Repeat or do not resolve Rate Parity Guarantee, Availability Parity Guarantee and/or Promotional Parity Guarantee issues within a reasonable time frame, in Spa Ninja’s absolute discretion;
i) Provide Services illegally or fraudulently;
j) Engage in or permit inappropriate or unprofessional behaviour towards Guests or our staff;
k) Provide Services or otherwise act in such a manner that in our opinion, in our absolute discretion, poses a risk to Spa Ninja and its business generally;
l) Pursuant to Clause 12.2, fail to notify Spa Ninja of any Guest Information security breach within 1 day after discovering the breach; or
m) Breach any term of this Agreement.
11. CONTENT AND CONTENT LICENCES
11.1 THIRD PARTY CONTENT
We may make Third Party Content such as software applications, website links or communication forums (including but not limited to online bulletin boards, chat forums, news groups or any other communication forum) available on Yosiwa from time to time at our discretion. No Third Party Content is owned by Spa Ninja.
11.2 YOUR INFORMATION
As a user of an online/digital marketplace such as Yosiwa you are responsible for your Content. By transmitting Content on any such marketplace, you represent and warrant that you have all rights and authority necessary to post, submit, display, produce or otherwise transmit the Content and you agree that you will not submit material that is or contains third party intellectual property unless you have authority to do so.
Spa Ninja does not claim ownership over the Content you post on the Spa Ninja. After posting or submitting your Content you continue to retain your ownership of your Content and you continue to have the right to use and license your Content in any way you choose. However, by using the Spa Ninja Services you are granting Spa Ninja a non-exclusive, worldwide, royalty-free, sub-licensable and transferable right and licence to use, reproduce, create derivative works of, distribute, publicly perform and publicly display your Content. This licence ends when you delete your Content or your Account, except to the extent that your Content has been shared with others or syndicated to third parties and they have not deleted it. Any decision to decline to submit Content to Spa Ninja may prevent you from being able to use all or portions of the Spa Ninja Service.
11.3 RIGHT TO REFUSE OR REMOVE CONTENT
You acknowledge that Spa Ninja does not review Content prior to it appearing on Yosiwa, but that Spa Ninja will have the right but not the obligation in their sole discretion to edit or remove any Content that is available via the Spa Ninja Services.
You will bear all risks associated with the use of any Third Party Content accessible through Spa Ninja Services, including any reliance on the accuracy, completeness, or usefulness of such content and you understand that all content is the sole responsibility of the person from which such content originated. This means that you, and not Spa Ninja, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Spa Ninja Services. Spa Ninja does not control the content posted via the Spa Ninja Services and, as such, does not guarantee the accuracy, integrity or quality of such content.
11.5 OFFENSIVE, INDECENT OR OBJECTIONABLE CONTENT
You understand that by using the Spa Ninja Services, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will Spa Ninja be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available via the Spa Ninja Services.
11.6 DISCLOSURE OF CONTENT
Spa Ninja may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
a) Comply with any legal process or requirements;
c) Respond to claims that any Content violates the rights of any third party; or
d) Protect the rights, property, or personal safety of Spa Ninja, Guests or the public.
11.7 PROCESSING & TRANSMISSION OF CONTENT
The technical processing and transmission of the Spa Ninja Service, including your Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. You are responsible for ensuring your devices are compatible with Spa Ninja Services.
Subject to clause 12.2 you agree that any Content posted on Spa Ninja SSSMS is not confidential. By submitting Content you grant us an irrevocable right to use, reproduce, distribute, modify or display the Content in connection with the Spa Ninja Services. You represent and warrant that you have all rights and authority necessary to grant these rights unconditionally.
12. GUEST INFORMATION
12.1 LOYALTY PROGRAMMES
You acknowledge that Spa Ninja may use data sourced from your Content within the Spa Ninja Services for the purposes of its rewards programme and other frequent marketing programme databases.
12.2 CONFIDENTIALITY & PRIVACY OF GUEST INFORMATION
12.2.1 Post Termination
Upon termination of this Agreement Spa Ninja will retain all Guest Information and may continue to use it in accordance with the Guest Terms and Conditions.
12.2.2 Third Party Information
Third Party Information that has been uploaded to the Spa Ninja SSSMS by you shall not be retained by Spa Ninja following the termination of this Agreement and Spa Ninja shall take all steps reasonably required to delete such Third Party Information as soon as reasonably practicable after the termination of this Agreement.
Both Parties acknowledge that:
a) The Spa Ninja SSSMS is cloud-based and that there will be interruptions to Spa Ninja Services caused by inconsistent internet connections through no fault of either Party; and
b) They will back-up their respective systems as often as reasonably practicable.
We may, from time to time and in our sole discretion, release modifications or upgrades to the Spa Ninja Services but are under no obligation to do so. You consent to us modifying or upgrading the Spa Ninja Services without your knowledge.
13.3 REGULAR MAINTENANCE
You acknowledge that from time to time we may undertake scheduled or unscheduled maintenance, and this may cause interruptions to the Spa Ninja Services. You may not be able to process Reservations using the Spa Ninja Services during this time or otherwise access Spa Ninja Services.
14. TERM AND TERMINATION
The Agreement will come into force on the Execution Date and will continue:
a) For the Initial Term as provided in Appendix 1; and
b) Will renew automatically for the Renewal Term provided in Appendix 1 if at the expiry of the Initial Term or any Renewal Term, as applicable, there is no material breach of the Agreement and the Parties are not otherwise in dispute.
In order to terminate the Agreement at the end of the Initial Term or a Renewal Term either party may serve written notice to that effect on the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term, as the case may be.
Any existing Booking Button Reservations or Referral Reservations within the Spa Ninja SSSMS at the time of termination shall be honoured by you, and all provisions herein with respect to these Booking Button Reservations or Referral Reservations shall survive the termination of this Agreement.
14.2 TERMINATION FOR MATERIAL BREACH
If either Party commits a material breach of this Agreement, the other Party may terminate the Agreement immediately without prior notice to the defaulting Party.
14.3 TERMINATION FOR BANKRUPTCY OR INSOLVENCY
If an Act of Insolvency occurs in relation to either Party, the other Party may terminate this Agreement with immediate effect by notifying the other Party in writing. If any Act of Insolvency is threatened by any creditor or occurs you must notify us in writing immediately.
14.4 SURVIVAL OF OBLIGATIONS AFTER TERMINATION
All amounts owed pursuant to this Agreement or claims arising under this Agreement shall remain payable and actionable notwithstanding the termination of this Agreement for any reason.
The Spa Ninja Services may include advertisements, which are commercially necessary to provide the Spa Ninja Services. Spa Ninja reserves the right to include advertisements in different versions and/or in different service levels of the Spa Ninja Services at its discretion.
15.2 YOUR ADVERTISING & PROMOTIONS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Spa Ninja Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. Spa Ninja will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Spa Ninja Services.
The Spa Ninja Services may include links to third party web sites not owned or operated by Spa Ninja. Because Spa Ninja has no control over such material, Spa Ninja is not responsible for the availability of such third party sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Spa Ninja will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products, services or web sites.
17.1 THIRD PARTY CONTRACTS
You warrant and represent that the use of Spa Ninja Services herein described or provided to you, do not, and will not result in the breach of or violate any terms, or result in default in any of your agreement with your franchise, or any other third party contracts.
17.2 INDEMNIFY SPA NINJA FOR CONTENT
18. CONFIDENTIAL INFORMATION
The Spa Ninja Service and any necessary software used in connection with the Spa Ninja Services contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Content contained in sponsor advertisements or information presented to you through the Spa Ninja Service or advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorised by Spa Ninja or advertisers, you will not modify, rent, lease, loan, sell, distribute or create derivative works based on the Spa Ninja Services, any software used in connection with the Spa Ninja Services or any advertiser’s content, in whole or in part.
19. DISCLAIMER OF WARRANTIES
You expressly understand and agree that:
a) Your use of the Spa Ninja Service is at your sole risk. The Spa Ninja Service is provided on an “as is” and “as available” basis. Spa Ninja expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
b) Spa Ninja will make reasonable efforts to maintain the Spa Ninja Services. However, Spa Ninja is not responsible for any damage, loss of data, Guest Information, Third Party Information or vendor data, revenue, or other harm to business arising out of delays, mis-delivery or non-delivery of information, restriction or loss of access, bugs or other errors, unauthorized use due to your sharing of access to the Spa Ninja Services, or other interaction with the Spa Ninja Services. You are responsible for maintaining and backing-up your data and information that may be stored on the Spa Ninja Services.
c) Spa Ninja does not warrant that:
i. The Spa Ninja Services will meet your specific requirements,
ii. The Spa Ninja Services will be uninterrupted, timely, secure, or error-free,
iii. The results that may be obtained from the use of the Spa Ninja Services will be accurate or reliable,
iv. The quality of any products, services, information, or other material purchased or obtained by you through the Spa Ninja Services will meet your expectations, and
v. Any errors in the Spa Ninja Services will be corrected.
d) Any material downloaded or otherwise obtained through the use of the Spa Ninja Services is done at your own risk. You will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
e) No advice or information, whether oral or written, obtained through or from the Spa Ninja Services will create any warranty not expressly stated in this Agreement.
20. LIMITATION OF LIABILITY
You expressly understand and agree that Spa Ninja will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses even if Spa Ninja has been advised of the possibility of such damages, resulting from:
a) The use or the inability to use the Spa Ninja Services;
b) The cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Spa Ninja Services;
c) Unauthorised access to or alteration of your transmissions or data;
d) Statements or conduct of any third party on the Spa Ninja Services; or
e) Any other matter relating to the Spa Ninja Services.
All notices required to be given pursuant to this Agreement must be given in writing by email to the following email addresses, as updated from time to time:
• Spa Ninja’s email as included in Appendix 1 or as notified in writing to you; and
• Your Email Address.
Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise:
a) The singular includes the plural and conversely;
b) A gender includes all genders;
c) A reference to a person includes a body corporate, an unincorporated body, enterprise, firm, trust, joint venture, syndicate or other entity and conversely;
d) A reference to a clause or schedule is to a clause of or schedule to this agreement;
e) A reference to any party to this agreement or any other agreement or document includes the party’s successors and permitted assigns;
f) A reference to any legislation or to any provision of any legislation includes any amendment, consolidation or replacement of it, and all regulations and statutory instruments issued under it;
g) A reference to conduct includes, without limitation, any omission, statement or undertaking, whether or not in writing;
h) A reference to a party is a party to this Agreement or any person who executes a deed of accession to this agreement;
i) If any payment by a party under this Agreement is due on a day which is not a business day, the due date will be the next business day in the same calendar month or, if none, the preceding business day; and
j) if an obligation must be performed by 2 or more persons it binds them jointly and individually.
The following definitions shall apply in this Agreement:
Account means the account issued to you by Spa Ninja for the purposes of accessing Spa Ninja Services.
Account Information means all information submitted by you and held by Spa Ninja in relation to your Account, including but not limited to details of Services, Outlets, prices, availability, contact details and Reservations.
Act of Insolvency means if either Party is declared bankrupt, commits an act of bankruptcy, becomes insolvent, or has a liquidator, administrator or receiver appointed in relation to any of its assets.
Agreement means this agreement and its Appendices as varied in writing by agreement of the Parties from time to time.
Auditor means a certified auditor with at least 5 years’ experience and licensed to practise in Singapore.
Billing Information means all information required in connection with a Payment Source to enable Spa Ninja to take payment automatically.
Booking Button means a link on your website and Facebook page to enable Guests to make Booking Button Reservations.
Booking Button Commission means the commission payable by you to Spa Ninja on Reservation Revenue generated by Booking Button Reservations at the rate specified in Appendix 1.
Booking Button Reservation means a Reservation made via the Booking Button.
Cancellation Penalty means the penalty charge payable by Guests in the event that a Guest cancels a Booking Button Reservation or Referral Reservation, as determined in accordance with this Agreement.
Cancellation Penalty Commission means the commission payable by you to Spa Ninja on Cancellation Penalties at the rate specified in Appendix 1.
Commission equates to the aggregation of Cancellation Penalty Commission, Booking Button Commission and Referral Commission payable by you to Spa Ninja and is net of withholding tax which remains your responsibility.
Content means all content, information and data of any kind owned by you and submitted by you to Spa Ninja and includes all Account Information but excludes Guest Information.
Declined Payment Charge means a charge payable by you if any payment made under this Agreement is declined, as set out in Appendix 1.
Execution Date means the date this Agreement is executed.
Guest means any person or entity who has accepted the Guest Terms and Conditions either by making a Referral Reservation or Booking Button Reservation or otherwise.
Guest Information means all information and data belonging to a Guest.
Guest Terms and Conditions means the terms and conditions governing Spa Ninja’s relationship with a Guest.
Initial Term means the initial term of this Agreement as set out in Appendix 1.
Manual Reservation means a Reservation made other than via the Booking Button or Yosiwa.
Notice of Non-Payment will include outstanding Remittance Amounts, Declined Payment Charges and Spa Ninja Service Fees.
Outlet means a location where you provide Services to Guests.
Payment Source means any credit card, debit card, payment card or other payment system by which Spa Ninja may take payment automatically from you or by invoicing you.
Referral Commission means the commission payable by you to Spa Ninja on Reservation Revenue generated by Referral Reservations at the rate specified in Appendix 1.
Referral Reservation means a Reservation made via Yosiwa.
Remittance Amount is the monthly difference between Commission owed by you and Cancellation Penalties owed by Spa Ninja.
Remittance Statement is a monthly statement prepared by Spa Ninja setting out the previous calendar month’s Commission, Cancellation Penalties and the resulting Remittance Amount.
Renewal Term means any term for which this Agreement may be renewed as stated in Appendix 1.
Reservation means a reservation for the provision of Services at an Outlet, and includes a Referral Reservation, Booking Button Reservation and Manual Reservation.
Reservation Revenue means revenue generated by reservations made through Booking Button Reservations or Referral Reservations including any applicable taxes or service charge.
Services means any treatments and services offered by you at an Outlet and which are capable of being subject to a Reservation.
Yosiwa means the website or application operated by Spa Ninja through which Guests may book Referral Reservations or Booking Button Reservations and on which your Outlet(s) will be listed.
Spa Ninja SSSMS means the Spa Ninja Salon, Studio & Spa Management System.
Spa Ninja Services means Spa Ninja SSSMS and Yosiwa and any services or products provided to you by Spa Ninja which are the subject of this Agreement.
Third Party Content means all content, data and information belonging to a third party that is displayed on or accessible via Spa Ninja Services.
Third Party Information means all information or data belonging to customers of an Outlet that are not Guests as defined in this Agreement.
Your Email Address is the email address as set out in Appendix 2, as from time to time updated in your Account Information, through which all communications and notices pursuant to this Agreement for your Outlet(s) will be made.
22.3 ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding between the parties with respect to its subject matter. Each Party acknowledges that it has not relied on any previous negotiations or representations (express or implied) except as set out in this Agreement. All prior negotiations or representations are excluded to the maximum extent permitted by law.
You may not assign or deal with your rights under this Agreement without Spa Ninja’s written consent, such consent to be at the absolute discretion of Spa Ninja. Spa Ninja may at any time without your consent assign or deal with its rights under this Agreement.
If any part of this Agreement is held to be invalid or unenforceable, then the invalid or unenforceable section will be severed, and the remainder of this Agreement will remain in full force and effect.
The failure by a party to enforce any provision of this Agreement will not constitute a continuing waiver of that provision or a waiver of any other provision, unless expressly provided in writing by an authorised representative of that party.
22.7 APPLICABLE LAW
This Agreement will be governed by the laws of Singapore and the parties agree that they will be bound by the non-exclusive jurisdiction in that country. The parties acknowledge that this Agreement was freely negotiated between commercial entities with the benefit of legal counsel. The Parties will in any event attempt to settle their disputes in an amicable manner out of court by first conducting good faith discussions and negotiations.