SPARK, StreetAway© Terms and conditions
(Terms of Service/License Agreement)
Registered: England and Wales
Registration No.: 08096842
Latest Revision: July 06, 2020
Terms and Conditions (License Agreement)
This document defines the terms of service in regards to SPARK hospitality software.
Having paid the license fee against the invoice, issued towards you by the Licensor, you are considered to have agreed to the conditions of the current License agreement and the Agreement is considered to be concluded.
“Terms of Service” (License agreement) – license agreement concluded between NEW APEX LTD t/a SPARK EPoS (“Licensor”) and the Legal entity or Individual (“Licensee”).
“Software” shall mean the computer Software or Software kit for a computer which is considered to be a result of an intellectual activity, for which according to this Agreement the right of use is granted. The Licensor guarantees, that he is the legal owner of the Software and has the legal capacity to provide the right to use the Software which is enough to conclude this Agreement.
“License” means the right to use the functionality of the software copy by the Licensee under the terms of a simple (non-exclusive) non-transferable license.
“License Type” means the type of License granted to the Licensee specified in the invoice.
“SPARK Software” is a SaaS type of license which is granted to a legal entity or an individual for a period paid.
1. SUBJECT OF THE AGREEMENT
1.1. The Licensor shall provide the Licensee with the Software License (a simple non-exclusive license) in accordance with this Agreement and the Licensee shall pay the license fee to the Licensor.
1.2. The name and version of the software, the amount of remuneration to the Licensor for the Licenses, the number of Licensed workplaces (if applicable), the types of licenses as well as the period for granting the rights to use the software are specified in the Invoice issued by the Licensor.
2. LICENCE TERMS AND CONDITIONS
2.1. Licensor grants on the conditions of a simple (non-exclusive) license the following rights:
2.1.1. to use the Programs and to carry out the actions necessary for the functioning of the Programs in accordance with its purpose;
2.2. All the rights for the software which are not named and stipulated directly in this Agreement shall not be granted to the Licensee.
2.3. The following is FORBIDDEN to the Licensee as well:
2.3.1. Reproduce the software, that is, make one or more copies of the software, except when the copy of the software is reproduced in accordance with the terms of this Agreement.
2.3.2. Distribute software copies through sale or other alienation.
2.3.3. Import copies of the software.
2.3.4. Rent a copy of the software.
2.3.5. Software modification, including but not limited to the implementation of the changes into the object code of the software or its databases including the cases of the correction of obvious errors which is allowed to be done only by the means included into the Software kit and described in the Documentation.
2.3.6. To disassemble, to decompile the Software (to transform the object code into the source code), including the software, databases and other Software components, excluding the cases and only to the extent when it is clearly allowed to be done by applicable law.
2.3.7. To make the software available to the public (in the way, so that any person could get the access to the software from any place and at any time on the person’s choice).
2.4. The Licensee undertakes not to copy any materials transmitted together with the Software.
2.5. Licensee is entitled to reproduce the documentation for the software, as well as other information materials transmitted together with the software, in an amount not exceeding the number of software licenses transferred without the right to transfer to such materials to the third parties.
2.6. The Licensee undertakes not to remove or make unobtrusive any notice of copyright, trade name, trademark or patent rights that are used in the Software.
The Licensee is obliged to use the software in compliance with the technical requirements established by the Licensor defined in Annex 1 to this Agreement
3. LICENSE PAYMENT
3.1. The currency of payment under the present Agreement is GBP.
3.2. For the licenses granted hereunder, the Licensee undertakes to pay the Licensor a fee in the amount specified in the invoice. The amount of license fee shown in the signed quotation is formed depending on the selected type of license, period of use of license (license duration), number of workstations (if applicable).
3.3. Prices for the licenses are published on the official website and displayed on signed and agreed quotation.
3.4. The Licence Fee and other charges payable under this Agreement are exclusive of any applicable VAT and other sales tax which shall be payable by the Licensee at the rate and in the manner prescribed by law against submission of a valid tax invoice.
3.5. License fee is non-negotiable and non-refundable in the event that this Agreement is terminated.
3.6. After payment of the license fee against the invoice, issued towards you by the Licensor, you are considered to have agreed to the conditions of the current License agreement and this agreement is considered to be concluded between you and the Licensor.
3.7. The payment shall be paid by the Licensee in the term of 5 (five) days before granting of a license. Licensing should be done only after the payment of license fee.
3.8. The Licensee should pay the licensee fee once in a billing period (a month or a year) in the term of 5 (five) days before granting of a license. In case of prolongation of the license, the payment should be made in the term of 5 (five) days before granting of a license.
3.9. If the Licensee fails to pay the received invoice timely and the price is changed, the Licensee should pay the new price indicated in the invoice.
3.10. The Licensor has the right to change prices on licenses unilaterally. The Licensor notifies his clients on changes by publishing this notification on Licensor’s official website in the term of one month before this changing in price.
3.11. The Licensor has the right to make amendments into this Agreement unilaterally.
3.12. The payment has to be conducted as a direct Bank Transfer.
3.13. All outgoing bank transfer charges shall be paid by the Licensee.
3.14. All payment obligations of the Licensee shall be deemed fulfilled when the due sums are credited to the Licensor‘s bank’s correspondent account.
4. PROCEDURE FOR TRANSFER OF RIGHTS TO THE SOFTWARE
4.1. The license should be granted to the Licensee in the term of 5 (five) days after payment of the license fee to the Licensor.
4.2. In the term of 5 (five) days after the payment of the license fee, apk of the software can be downloaded directly from StreetAway Store with a valid user credential.
4.3. User documentation about the software can be found on helpcentre.sparkepos.com.
4.4. The technical requirements for the equipment on which the software can be used are indicated in Annex 1 to this Agreement. If the Licensee fails to comply with these technical requirements, the Licensor should not bear the responsibility for the impossibility of software installation, software performance, software manufacturing, data loss,
4.5. The Licensor provides the Licensee unique SPARK User Credentials , that should be sent to the Licensee’s email.
4.6. The rights to use the software are deemed to be granted to the Licensee from the time when the unique SPARK User Credentials is provided to the Licensee.
4.7. The Licensee undertakes to comply with this License agreement, as well as other requirements set forth in the User’s Guide or other software documentation and not contrary to this agreement.
5. LIABILITIES OF THE PARTIES AND LIMITATION OF LIABILITY
5.1. The Party that violates the present agreement shall reimburse to the other Party the real losses caused by such a violation.
5.2. Should the Licensee fail to pay on time under section 3 hereto the Licensor may demand a fine which is equal to 0.5 % of the amount for each day of delay but in total no more than 10% of the total amount per month to be paid under this agreement.
5.3. In the event that Licensee violates the payment obligation to the Licensor for the Software license granted in the time stipulated by this agreement, the Licensor may unilaterally abandon this contract and claim damages and loss of contract value caused by the termination of such agreement.
5.4. The Licensor has the right, as an application of interim measures for the proper and timely payment by the Licensee of remuneration for the license granted to him, to apply technical measures related to the establishment in the software key of limited use of the software. The Licensor, applying these measures, guarantees that the functionality of the software will be restored after the due repayment by the Licensee of the debt (including penalties), within a period not later than 5 (Five) business days from the receipt of funds to the banking account of the Licensor, by providing a new key for full-featured use of the software, Except for the case when the Licensor has made a decision to unilaterally abandon this agreement in accordance with clause 5.3. of this agreement.
5.5. The Licensee agrees with the statement that the Software products and the accompanying documentation can’t be 100% error-free and are provided to the Licensee “AS IS”, in accordance with the generally accepted principle in international practice.
5.6. The maximum liability of the Licensor under this agreement, is limited to the amount that Licensee shall pay for the Licenses granted to the business.
5.7. In no event shall the Licensor be liable to the Licensee for damages, business interruptions, loss of business or other data or information, claims or expenses, consequential or incidental damages, or lost profits and lost savings caused by use or related to use of Software, as well as for damage caused by possible errors and misprints in the Software, even if the representative of the Licensor became aware of the possibility of such damages, losses, claims or expenses.
5.8. The Licensor shall not bear responsibility for failures in the operation of the software in case the software is installed on the equipment and/or in conjunction with equipment for which the copyright holder has not tested the software, and the technical requirements and configuration of the equipment on which the software is used are not harmonized.
5.9. The Licensor shall not be liable for failures in the operation of the Software in the event that the Licensee has third-party software for which the Licensor software has not been adapted, which alone can modify the Licensor’s software settings, which may slow down or decrease the computer’s performance, lead to a decrease Computer resources available for the software, as a result of which the full operation of the software becomes impossible, or if an unlicensed license is installed on the Licensee computer Ionic software. we will not be liable for software errors that are caused by suspected third party hardware configurations such as routers or attempts to run our software on hardware that was not intended for.
6. FORCE MAJEURE
6.1. In this Agreement the term “Force Majeure Event” means an event which prevents a Party to perform its obligations or causes the Party to delay performing its obligations under this Agreement, and includes floods, earthquakes, third party server downtime and other natural catastrophes, wars, military operations, states of, emergency and martial law, statutory or other legislation of the authorities in the Partner’s or Licensor’s territory and any other similar events which the Parties could not reasonably have foreseen nor prevented, which occurred upon the date of signature of this Agreement by the Parties.
6.2. Should one of the Parties have no opportunity to fulfil its obligations under this Agreement or such performance is delayed due to a Force Majeure Event, such Party shall not be liable to the other Party for non-fulfilment of its obligations during the period of such Force Majeure Events and their consequences.
6.3. In case of occurrence or likely occurrence of the Force Majeure Events the affected Party shall:
6.3.1. Immediately notify the other Party within a period of not more than 5 (five) days after such Party becomes aware of the occurrence of the Force Majeure Events (including detailed description of the Force Majeure Event which has occurred or may occur, the extent of influence or likely influence of such event on non-performance of obligations by the affected Party, date of commencement and expected duration of the Force Majeure Event). Non-notification (late notification) of occurrence or cessation of a Force Majeure Event deprives the Party of the right to refer to it hereinafter. Facts that are stated in the notification, shall be confirmed by a relevant certificate of authorized body.
6.3.2. Use all reasonable endeavour and employ all reasonable means to remedy or abate the Force Majeure Event effect;
6.3.3. Notify the other Part as soon as possible of cessation or abatement of the Force Majeure Event effect;
6.3.4. Resume fulfilment of its obligations under this Agreement without delay after the cessation of the period of the Force Majeure Event or after the Force Majeure Event has abated to an extent allowing resumption of the fulfilment of its obligations.
7. INTERNET / NETWORK REQUIREMENTS
7.1. Licensor’s Software products require a reliable and robust connection to the internet / local network to provide timely data processing and reporting. It is the Licensee’s responsibility to ensure that it has an appropriate internet / local network connection in place prior to installation of the Software and to also ensure that the internet connection is maintained correctly and includes an up-to-date firewall. The recommended internet speeds are a minimum 15 Mbps download speed and 5 Mbps upload speed to provide operation of up to 3 till devices. Larger locations / installations will need higher internet speeds as appropriate to the size of installation and business. This speed requirement does not include any additional internet usage required over and above the Licensor’s Software products such as staff or guest networks or other business requirements. Internet speeds and consistencies can be checked by using internet speed test websites or by contacting the applicable internet service provider.
7.2. The Licensee is solely responsible for any connection charges, line rental charges and call charges in relation to any Products.
7.3. Whilst Licensor’s representatives may provide advice and an indication of the suitability of the Licensee’s internet / local network connection, it remains the Licensee’s sole responsibility to ensure it has a suitable internet / local network connection both before and after License is purchased. Licensor is not responsible for any slow responses to its Software products, including where this is caused by the Licensee’s poor internet / local network connection.
7.4. Provision of Local Area Network (LAN) infrastructure (e.g. cabling, network switches, WAN router) is the responsibility of the Licensee and should be appropriate to the size of business and criticality of the operation.
7.5. Where the Software product is to be used over wi-fi (e.g. tablets/mobile devices) (where applicable):
7.6. the Licensee is responsible for the setup, configuration and management of both the wi-fi infrastructure and the Licensee devices. This includes ensuring wi-fi coverage in required areas and ensuring network dropouts due to wi-fi roaming are minimized;
7.7. the Licensee must acknowledge that wi-fi is not as robust as a wired network and network dropouts can occur due to wi-fi coverage, access point roaming, tablet sleep modes as well as other environmental factors.
7.8. Licensor’s Software products are designed to work offline, but where no network connection (LAN or WAN) is available or the network connection is unreliable, some functionality is reduced.
7.9. Where Licensee devices are used offline for long periods, the Licensee must ensure that such devices are regularly (at least every 14 days) connected to the internet to ensure data is synchronized with its servers. All till devices must regularly (at least every 14 days) perform ‘end of day’ operations to ensure that the local data store can be transmitted to the servers.
8. TERMS AND TERMINATION OF THE PRESENT AGREEMENT
8.1. In the event that the Licensee fails to remit the stipulated license fee for the subsequent month or any other period specified in the invoice, this Agreement shall be deemed terminated and the license revoked. Notwithstanding this provision, the Licensor retains the unreserved right to pursue the recovery of the entirety of the software fee payable for the pre-agreed contractual duration.This right shall persist and shall not be extinguished or affected by the termination of the Agreement or revocation of the license.
8.2. In all other cases, not stipulated by this Agreement, the Parties shall be governed by the current legislation of England (the applicable law for this Agreement).
9.1. Confidential information (the “Confidential Information”) refers to any data or information relating to the business of the Licensee which would reasonably be considered to be proprietary to the Licensee including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Licensee and where the release of that Confidential Information could reasonably be expected to cause harm to the Licensee.
9.2. The Licensor agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any confidential information which the Licensor has obtained, except as authorized by the Licensee or as required by law. The obligations of confidentiality will apply during the term of this Agreement and will survive indefinitely upon termination of this Agreement.
10. DATA PROTECTION
10.1. In this Clause , “Data Protection Legislation” means the EU General Data Protection Regulation 2016/679; together with all other applicable legislation relating to privacy or data protection and including any statute or statutory provision, which amends, extends, consolidates or replaces the same. The terms “personal data”, “data subject”, “controller”, “processor” and “process” (and its derivatives) shall have the meanings given to them in the Data Protection Legislation.
10.2. Each party shall comply with its obligations under Data Protection Legislation in respect of personal data processed by it in connection with the Contract and the Services (“Relevant Personal Data”).
10.3. Licensor shall act as a processor of the Licensee in respect of the Relevant Personal Data. ANNEX 2 sets out the scope of the processing carried out by Licensor.
10.4. Licensor shall:
10.4.1. only process Relevant Personal Data: (a) to the extent necessary to provide the Services; (b) in accordance with the specific instructions of the Licensee (save to the extent, in the opinion of Licensor, such instructions infringe the Data Protection Legislation, in which case Licensor shall notify the Licensee); or (c) as required by any competent authority or applicable law;
10.4.2. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk relating to its processing of the Relevant Personal Data;
10.4.3. keep, and procure that its employees and agents keep, Relevant Personal Data confidential in accordance with the confidentiality obligations set out in Clause ;
10.4.4. notify the Licensee without undue delay, and provide reasonable cooperation after becoming aware of a personal data breach relating to Relevant Personal Data in Licensor’s possession or control as required pursuant to the Data Protection Legislation;
10.4.5. provide reasonable cooperation and assistance to the Licensee in relation to any request by a data subject to have access to Relevant Personal Data held about them or in relation to a reasonable request, allegation or complaint by a competent authority or data subject, including notifying the Licensee in writing without undue delay of receipt of any request (save to the extent prevented from doing so by applicable law);
10.4.6. be entitled to recover any reasonable costs incurred in assisting the Licensee in meeting its obligations under the Data Protection Legislation; and
10.4.7. at the reasonable request of the Licensee, delete or return all Relevant Personal Data held by Licensor to the Licensee on termination or expiry of the Contract.
10.5. To the extent required by Data Protection Legislation, Licensor shall maintain a record of its processing activities and provide such cooperation and information to the Licensee as is reasonably necessary for the Licensee to demonstrate compliance with Data Protection Legislation. Such cooperation shall include permitting the Licensee, at the Licensee’s sole cost and expense, to audit Licensor’s compliance with this Clause  provided that (unless expressly required otherwise by any competent authority):
10.5.1. reasonable notice of not less than 30 days is given of any proposed audit and the parties shall, acting reasonably, agree the scope and parameters of any such audit;
10.5.2. where an audit is required by the Licensee, such audit shall be conducted during regular business hours, subject to Licensor’s policies and may not unreasonably interfere with Licensor’s business activities;
10.5.3. the audit shall be subject to Licensor’s duties of confidentiality owed to any of its customers or employees; and
10.5.4. the rights granted in this Clause [10.5] may not be conducted more than once in any calendar year.
10.6. The Licensee authorises Licensor to use any subcontractor to process Relevant Personal Data as a subprocessor of the Licensor provided that Licensor shall ensure that (a) such processing is subject to a written contract or other legal act with such sub-processor containing data protection obligations no less onerous than those set out in this Clause  and (b) Licensor shall remain liable for the acts and omission of any such sub-processor with respect to the processing of Relevant Personal Data. A list of Licensor’s material subprocessors appointed is set out at paragraph 6 of ANNEX 2.
10.7. Licensor shall be entitled to process Relevant Personal Data in or transfer to any jurisdiction including a jurisdiction outside the European Economic Area (“EEA”) (including transferring to any subcontractor), provided that such transfer is permissible under Data Protection Legislation.
12. HARDWARE REQUIREMENTS
12.1. The hardware of the Licensee has to comply with minimum system requirements to be able to operate the Software correctly:
12.1.1. POS terminal
• CPU: 2 cores, 4 threads, starting from 2 GHz, Cache 2MB+
• RAM: 2GB+ (4GB recommended);
• HDD: 128GB (SSD recommended);
• Network: 100Mbit Ethernet;
• Display: Touch-screen, Resolution 1024х768;
• Operating system: Andorid OS 7.0 or higher
12.1.2. KDS terminal
• CPU: 2 cores, 4 threads, starting from 2 GHz, Cache 2MB+
• RAM: 2GB+ (4GB recommended);
• HDD: 128GB (SSD recommended);
• Network: 100Mbit Ethernet;
• Display: Resolution 1024х768 or better; 32″ recommended
• Operating system: Andorid OS 7.0 or higher
• Only SUNMI and X-printer products detailed in the quotation are compatible printers are supported.
12.2. The Licensor does not bear responsibility for the Licensee data integrity and for the Software failure which might be a case when an Android Terminal, operating this software, is not connected to the power line through an intellect control UPS device.
12.3. The Licensor does not bear responsibility for the operational condition of the receipt printing hardware in case the Android Terminal where the software is installed and which interacts to this hardware is not connected to the power line using a UPS device
DETAILS OF PROCESSING OF LICENSEE RELEVANT PERSONAL DATA
This paragraph includes certain details of the Processing of Licensee Relevant Personal Data as required by Article 28(3) GDPR.
1. Subject matter, nature and purpose of processing: Personal data are processed in order to comply with TERMS OF SERVICE (LICENSE AGREEMENT);
2. Duration: for the term of this TERMS OF SERVICE (LICENSE AGREEMENT);
3. Types of Relevant Personal Data and categories of data subjects:
4. Licensee’s Employee data (mandatory to provide ability to perform business operations using SPARK products and in order to communicate with the Licensee during the term of TERMS OF SERVICE (LICENSE AGREEMENT);
4.1.1. Personal data processed to provide ability to perform business operations using SPARK products (none of the fields are mandatory in SPARK system, it is up to the Licensee as data controller to determine the set of fields to be used:
c) Middle Name;
d) E-mail address;
e) Phone number(s);
h) Date of birth;
m) VAT No;
n) Payment rates;
o) Work schedule;
q) Validity periods for medical certificates;
r) Customer ethnicities/ demographics;
4.2. Licensee’s Customers data (only in case of Licensee specified necessity to load Customers data into the SPARK products, most of fields are not mandatory to fill in):
a) Name (mandatory);
b) Surname (mandatory);
c) Phone (mandatory for delivery/collection orders and for banquets/reservations);
d) Address (mandatory for delivery orders);
e) Address location;
h) Date of birth;
i) Additional address, customer info or customer demographics.
5. The obligations and rights of the Licensee are set out in the TERMS and CONDITIONS (LICENSE AGREEMENT);
6. Subprocessors used:
6.1. SPARK powered by StreetAway®
6.2. NEW APEX LTD.