These terms and conditions (“Terms”) govern customer use of the B.I.T. SMARTSOFT service. If customer visits any of the B.I.T. SMARTSOFT websites mentioned below or registers for a free trial, free plan, or paid plan of our service on any of our websites for cloud based product or uses any of our on-premise software, these terms apply.
Acceptance of terms
B.I.T. SMARTSOFT LTD, for and on behalf of its group and subsidiaries and also partnership firm, (“SMARTSOFT,” “We” or ”Our”) provides its software and related services (“SMARTSOFT Software and Services”) to YOU(“Customer” or “Client) subject to these Terms and Conditions.
Description of SMARTSOFT software and services
The SMARTSOFT Software includes the SMARTSOFT On Premise Hotel Management Software, Web Based Hotel Management Software, Booking Engine, Channel Manager, On Premise and Web Based Restaurant Point of Sale, Restaurant Menu Systems, Feedback Systems, Mobile App, Custom Websites, SMARTSOFT Revenue Management, SMARTSOFT Mint, Direct or third party Interfaces, All the API’s, Add-Ons, and all other related services provided by SMARTSOFT to YOU, including all software, data, text, images, sounds, videos, and other content provided by SMARTSOFT. Any new features or software added to or augmenting the SMARTSOFT Software and related services are also subject to these Terms.
Apart from the terms mentioned herein, the following terms and conditions shall also be applicable for On-Premise Software product.
A. The License
In consideration of the payments of License Fee made / to be made by the Customer/Licensee (hereinafter called “you” or “your” as the case may be) as stated above, B.I.T. SMARTSOFT LTD hereby grants you a perpetual, non-exclusive, non-transferable, non-assignable LICENSE (without the permission to SUB- LICENSE) to use SMARTSOFT On Premise Hotel Management Software software comprising of the modules described above and related documentation which together constitute “the Software”, under the terms and conditions contained herein, solely for your internal and lawful business purposes. You shall not use the Software for any commercial warehousing, training purposes etc. During normal business hours, SMARTSOFT shall be entitled to audit and inspect your compliance with this agreement.
All proprietary and intellectual property rights in and to the Software, user manual and all components thereof and any copy of the same shall remain the sole and exclusive property of SMARTSOFT. SMARTSOFT retains all rights not expressly granted herein.
The Software shall
- be used by You without any modifications, alterations, merger, adaptations, disassembling, decompiling or reverse engineering.
- be deemed to be in use by You when it is loaded into the temporary memory (i.e. RAM) or installed into the permanent memory (e.g. : hard disk, CD-ROM or other storage device) of your computer.
- not be used by You in any nuclear, aviation, mass transit or medical applications or in any inherently dangerous applications and SMARTSOFT shall not be liable for any claims / damages in this regard.
- be installed and used by You only on a specified number of computer servers (as agreed) at any point of time.
- be used by You only in accordance with the user manual or instructions provided by SMARTSOFT.
- be used by You as per the User environment specified
- be used by You in accordance with applicable laws.
- be used by You without removing or destroying any copyright notices, proprietary markings or confidential legends placed or contained in it.
- be used by You to process your own data during the course of your normal business activity and shall not be distributed to any other person / entity.
- shall be used by You at the locations as agreed and software to any other location without the prior written consent of SMARTSOFT.
D. Additional License
SMARTSOFT at its option may provide additional licenses to You upon payment of additional license fee to be mutually agreed upon between SMARTSOFT and You as and when a request in this regard is made by. Except additional license fee to be mutually agreed between the Parties hereto, the additional licenses shall be subject to the same terms and conditions set forth in this license agreement.
SMARTSOFT shall have no liability for and You shall indemnify and hold SMARTSOFT harmless from any claims arising out of;
(a) any unauthorised modification or alteration by You of the Software supplied by SMARTSOFT (b) the use of other than the latest version of the Software, if such infringement could have been avoided by the use of the latest version, (c) the use or combination of the Software with software, hardware or other materials not recommended by SMARTSOFT, provided such infringement would not have arisen but for such use or combination, or (d) use of the Software in a manner other than that for which it was designed or contemplated as evidenced by SMARTSOFT Documentation, or (e) any unauthorized modification by You or a third party of the Software, or (f) any compliance with designs, plans or specifications furnished by You or on Your behalf modification of the Software, by third party not authorized by SMARTSOFT; (g) any unauthorised use of the Software, System or Services or other Deliverable Items modified or merged with other programs.
This clause states the entire liability of SMARTSOFT, and Your sole and exclusive remedy, with respect to infringement of any intellectual property rights, and SMARTSOFT shall have no additional liability with respect to any alleged or proved infringement. This indemnity provision shall be applicable only if You continue to avail support services from SMARTSOFT.
The license granted herein will terminate if You fail to pay the license fee as agreed or violate or fail to comply with any term or condition herein contained. You agree that in the event of termination, You shall immediately return all copies of the Software and user manuals to SMARTSOFT or delete the Software and give the proof of such deletion. This termination is without prejudice to any other rights available to SMARTSOFT under law.
SMARTSOFT shall provide You with a username and password to access the SMARTSOFT Software. As a user You may also have rights to create sub users and their passwords to access the SMARTSOFT Software. All users who access the SMARTSOFT Software service do so with User account(s) which are provided to them by SMARTSOFT or by Users. As a safety measure, all the Users shall have to change the passwords after first login. As a registered user, You choose a unique password. You may not use the password of any other person to access the system. You are responsible for maintaining the confidentiality of your password and may not let any other person use it. You are solely responsible for the activities of anyone using your password, even if the activities were not authorized by You. You must notify us immediately of any unauthorized use of your password. In addition, if You believe or suspect your password has been compromised, You must promptly change your password using the functionality provided in the software. You are responsible for maintaining the confidentiality of your user account information and your password. SMARTSOFT will not be held accountable for changes made by either the users or services or channels You are associated with.
- The Service shall be provided by means of an access to a Universal Resource Locator (URL) designated by the Company. In relation thereto, the Company shall provide the Client with a Member ID and Password to access the designated URL.
- The Client shall be solely responsible for maintaining the confidentiality of its Member ID and Password and for all activities that occur under the registered Member ID and Password. The client is responsible for notifying the company immediately for any unauthorized use of its Member ID and Password or any breach of security.
- The company reserves the right to introduce new features, enhancements, functionalities on technical or cosmetic level for its products and services or to future versions of products and services.
- The Company regularly backs up all data and information found on the Service and stores the same for a limited time. However, the Company shall not be liable for any failure to backup or restore any information or for interruptions, delay, or suspension of access to or unavailability of the Service, or any loss of such information, data, or transmissions.
- Server Uptime: B.I.T. SMARTSOFT LTD. shall provide at least 99.95% Service Availability, measured on a per calendar-month basis. Service Availability is defined as the ability of the all the users signed on your account to access SMARTSOFT System, if your account is active, in good standing and enabled.
- Service Availability: If Service Availability for the first 30 day period (or any calendar month thereafter) is below 99.95%, B.I.T. SMARTSOFT LTD will issue a credit to you according to the schedule below:
- Amount of the refund as a percentage of monthly fees for affected Service:
- 99.0% to 99.95% – 3% of monthly fee credited
- 98.0% to 98.99% – 5% of monthly fee credited
- 95.0% to 97.99% – 10% of monthly fee credited
- 90.0% to 94.99% – 25% of monthly fee credited
- 89.99% or below – 2.5% credited for every 1% of lost availability up to the maximum total penalty limit.
- To receive a credit, your account must:
(a) be in good standing with B.I.T. SMARTSOFT LTD., and (b) send an email or written credit request to the Billing Department in the month immediately following the month for which you are seeking a credit. Credit requests must include your account username (account number) and the dates and specific times that the Service availability was below the prescribed levels.
- The Billing Department will compare information provided by you to the monitoring data that B.I.T. SMARTSOFT LTD. maintains. A credit is issued only if B.I.T. SMARTSOFT LTD. confirms from the monitoring data warranting the credit.
- Total Credit Limits, Sole and Exclusive Remedy: The total credit to you for any account may not exceed 50% of the monthly fees charged to that account during the month for which the credit is to be issued, unless the amount to be credited is less than USD 1.0 in which case the credit amount will be USD 1.0. Only one credit and credit level is available in any given month.
- Notwithstanding anything set forth in the Agreement or this Service Level Agreement, the credit described in this Section VII shall be your sole and exclusive remedy in connection with any outages, unavailability, or breach by B.I.T. SMARTSOFT LTD. of the Agreement or this Service Level Agreement.
You are solely responsible for the accuracy of the content entered into the SMARTSOFT Software and Services under Your user account. You agree to indemnify SMARTSOFT, its related companies, officers, employees and its suppliers against liability or loss arising from, and cost incurred in connection with any content entered into the SMARTSOFT Software under your account. SMARTSOFT shall not be responsible if it cannot obtain access to any third party website or interface that is required in order to provide the Service in the event that any link fails to connect due to changes in the third-party systems. However, SMARTSOFT will make every effort to re- instate the connection.
It is Your responsibility to carefully manage your bookings and inventory. SMARTSOFT shall not be responsible for any errors in bookings and SMARTSOFT shall not be liable to indemnify for the same. You shall indemnify us and hold us harmless against all claims made by third parties that arise from your failure to perform your obligations under this Agreement.
In the event if any payment or credit card related information is being stored or transacted You will be solely liable to comply with all the applicable laws and regulation in relation to storage of data or any credit card / payment related compliance. SMARTSOFT shall not have any responsibility or liability in relation to such compliance or the storage of any data / use of credit card information/ payment related information or transaction or its usage. However, SMARTSOFT will take all commercially reasonable efforts to ensure its Software and Services are secured. In the event of any claim arising from the aforesaid, You will indemnify and hold SMARTSOFT , its employees, agents harmless from any such loss, cost, claims, legal action, expense, etc arising out of i) misuse of data, credit card or payment related information; ii) any action arising from non-compliance of any applicable regulation on your part in relation to your business.
SMARTSOFT may make changes to the SMARTSOFT Software from time to time. Should changes be made to any module of the system that could affect Your operation of the system You may or may not be notified of such change.
To apply upgrades and other changes to the System Software the SMARTSOFT Software may be made temporarily unavailable. To minimize impact to your usage of the system, SMARTSOFT will attempt to make any outages as short as possible and at a time of day where system usage is at its minimum.
All payments shall be made in advance and payable in INR/USD or its equivalent in any other currency acceptable to SMARTSOFT or to such other account as the SMARTSOFT may direct. The Charges are exclusive of any taxes, duties or other governmental levies or charges that the Client shall continue to be liable for as and when the same is imposed.
The SMARTSOFT services are made available on a pay-as- you-go basis or pre-pay depending on Your preferences. The SMARTSOFT service is billed to You periodically and is non-refundable, not withstanding any accounts which have been debited in error or for which appropriate notice (30 days) has been given in writing to cancel Your User Account.
For any upgrade or downgrade in plan level part way through the month, You will be charged a pro-rated amount for the current month, and then the amended fee from the following month onwards. Downgrading your account may cause the loss of data, features, or capacity of your User account. SMARTSOFT does not accept any liability for such loss.
Prices of all services, including but not limited to monthly fees to the service, are subject to change upon 30 days notice from SMARTSOFT . Such notice may be provided at any time. Your SMARTSOFT User account may be suspended or terminated if You do not pay the fees as they fall due.
Billing Disputes: SMARTSOFT must receive notice of billing disputes within sixty (60) days of the date your account was invoiced for the services or You shall be deemed to have accepted such charges.
While the reminder alerts are given to you for renewal of the subscription, in the event, you are not able to renew the subscription; the subscription will be suspended, forthwith immediately.
We reserve the rights to suspend your subscription if it is not renewed on time.
Intellectual property rights
All contents, text, images, data, information and other material displayed, available or present on SMARTSOFT website, including any trademarks or copyrights, are the property of SMARTSOFT or the designated owner and are protected by applicable intellectual property laws. YOU agree not to infringe upon or dilute any intellectual property of SMARTSOFT, as well as not to remove or modify any trademark, copyright or other proprietary notice appearing on SMARTSOFT Website. YOU are not allowed to link to, reproduce, sell, publish, distribute, modify, or display this Website or any Content without the prior written permission of SMARTSOFT.
YOU agree not to upload copyrighted or other proprietary material of any kind on the SMARTSOFT System without the express permission of the owner of that material. YOU are solely responsible for the content in your account and for any offense, claims or damages that arise from the content of those material.
Disclaimer and warranties
SMARTSOFT, its related companies, officers, employees and its suppliers provide the SMARTSOFT Software and related services “as is” and without any warranty or condition, express, implied or statutory to the maximum extent permitted by law. SMARTSOFT, its related companies, officers, employees and its suppliers specifically disclaim any implied warranties of title, merchant – ability, fitness for a particular purpose and non-infringement to the maximum extent permitted by law. SMARTSOFT is not responsible for any third party software or any other software installed or used by You, or for the operation or performance of the Internet. You assume all responsibility for determining whether the SMARTSOFT Software and related services are sufficient for your purposes. SMARTSOFT does not warrant or guarantee the availability or accuracy of any information or service provided by SMARTSOFT or by or with respect to You or any third party, including but not limited to inventory, rates, and updates to SMARTSOFT Software and related services, and you agree to hold SMARTSOFT free from and against any such claims. You understand and agree that SMARTSOFT does not warrant that all errors in the SMARTSOFT Software can be corrected and the SMARTSOFT Software may not satisfy all of your requirements and may not be uninterrupted or error-free. SMARTSOFT does not guarantee continuous, error-free, and uninterrupted access to SMARTSOFT Software and related services, and operation of the SMARTSOFT Software and related website(s) may be interfered with by numerous factors outside of our control.
For SMARTSOFT pos and SMARTSOFT Revenue Management Software and related services, while SMARTSOFT takes measures to provide accurate information and services, elements during the course of providing these services may involve SMARTSOFT acting upon Your request and/or Your behalf. Such actions by SMARTSOFT may include but are not limited to, changing rates, changing room types, and changing packages. SMARTSOFT does not warrant or guarantee whatsoever, the accuracy, completeness, truthfulness, satisfactory quality, or any other factors or results of such actions and any and all applicable disclaimers in this section and these Terms will apply to all actions taken by SMARTSOFT upon Your request and/or Your behalf in providing the SMARTSOFT Mint and SMARTSOFT Revenue Management Software and related services. You agree that SMARTSOFT shall not be liable for including but not limited to, any losses, inconvenience, or damages whatsoever in accordance with these Terms as applicable in relation to all actions SMARTSOFT takes upon Your request and/or Your behalf in providing the SMARTSOFT pos and SMARTSOFT Revenue Management Software and related services and you agree to hold SMARTSOFT free from and against any such claims.
Limitation of liability
No Consequential Damages.
Neither SMARTSOFT nor anyone who has been involved in the creation, production or delivery of the software or solution shall be liable for any direct, indirect, incidental or consequential damages including but not limited to damages resulting from loss of data, or use of the solution, work stoppage, business profits, goodwill computer failure or malfunction, negligence the results of use or the inability to use the solution arising out of any breach of warranty.
Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to these terms, or such party’s affiliates or their respective officers, directors, employees, agents, suppliers or licensors be liable to the other party or any third party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales or business, lost data, business interruption or any other loss incurred by such party in connection with this agreement or the service, regardless of whether such party has been advised of the possibility of or could have foreseen such damages.
Force Majeure And Third Parties.
You agree that SMARTSOFT is not liable for failure or delay in performing its obligations here-under if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any government authority, war, sabotage, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Services. SMARTSOFT will not be liable for non-performance due to “force majeure” reasons and / or reasons beyond its reasonable control.
Limits On Monetary Damages.
Notwithstanding anything to the contrary in these terms, SMARTSOFT (including any of its affiliates) aggregate liability, for damages (monetary or otherwise) under these terms during any calendar year for claims made by You or any third party arising from SMARTSOFT service, shall be limited to the lesser of (i) actual damages incurred, or (ii) payments made by You for the service during the one (1) month preceding the claim, and (iii) in cases involving SMARTSOFT Revenue Management and SMARTSOFT Mint Software and related services, payments made by You for the SMARTSOFT Revenue Management and SMARTSOFT Mint Software and related services for a period of one (1) month preceding the claim . The parties acknowledge and agree that the essential purpose of this clause is to allocate the risks under these terms between the parties and limit their potential liability given the fees charged under this agreement, which would have been substantially higher if SMARTSOFT were to assume any further liability other than as set forth herein. The parties have relied on these limitations in determining whether to enter into this agreement.
Assignment of agreement
Third party application and services
YOU agree to indemnify, defend and hold SMARTSOFT harmless and any SMARTSOFT Related Entities and the directors, officers, employees, subcontractors and agents thereof (collectively, the “Indemnified Party”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (a) Breach of any representation, warranty, obligation or covenant under this Agreement by You; (b) Gross negligence or willful misconduct by You; or (c) any warranty, condition, representation, indemnity or guarantee relating to SMARTSOFT and SMARTSOFTRelated Entities granted by You to any other third party.
Notice of Indemnification.
In claiming any indemnification hereunder, the Indemnified Party shall promptly provide You with written notice of any claim which the Indemnified Party believes falls within the scope of the foregoing paragraphs. The Indemnified Party may, at its own expense, assist in the defence if it so chooses, provided that You shall control such defence and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which shall not be unreasonably withheld.
SMARTSOFT acknowledges that, in the course of its performance of this Agreement, it may become privy to certain information that You deem as being proprietary and confidential. Confidential Information means any information of Yours that is by its nature is confidential or is designated by You as confidential. SMARTSOFT agrees that it will use Your Confidential Information solely for the purposes of the provision of the SMARTSOFT service to You and will not disclose Your Confidential Information, directly or indirectly, to any third party without Your prior written consent. You agree that SMARTSOFT may identify the Client as one of its clients in its promotional media, websites and literature and disclose to current and prospective clients and investors that the Client is a subscriber and user of the Company’s products and services.
Data of the hotel remains the exclusive and confidential property of the hotel. In no circumstance will this data, that includes personal details, ID copies etc of guests visiting the property be used by SMARTSOFT or any other third party for any purpose whatsoever. If the data is to be used for legal or compliance purposes, The client has to be informed before the usage of data or parts thereof.
Termination of service
SMARTSOFT reserves the right to terminate Your access to the SMARTSOFT Software at any time for any reason whatsoever with fifteen (15) days notice to YOU. SMARTSOFT shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service. If You breach any of the terms of this agreement SMARTSOFT reserves the right to terminate Your access to the SMARTSOFT Software immediately on becoming aware of such breach.
You can cancel your subscription plan any time by sending cancellation request by emailing us at firstname.lastname@example.org
If You choose to terminate your subscription prior to the end of your plan subscription, no refunds or no credits will be provided for payment You made for your subscription. At the time of termination or after the termination, SMARTSOFT reserves the right to delete all your account content and related details. Your content cannot be recovered once your Subscription is cancelled
Intellectual Property Rights, Disclaimer of Warranties, Cancellation and Termination, Limitation of Liability, Indemnification, Assignment, Entire Agreement; Revisions, Severability, and Governing Law and Jurisdiction will survive any termination of these Terms.
Governing laws and jurisdiction.
This Agreement shall be governed, construed and enforced in accordance with the laws of Republic of India. Each Party agrees that any legal action, proceeding, controversy or claim between the Parties arising out of or relating to this Agreement may be brought and prosecuted only in a court of Surat, Gujarat territory, and by execution of this Agreement each Party hereto submits to the exclusive jurisdiction of such court and waives any objection it might have based upon improper venue or inconvenient forum.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
Any translation of this Terms and Conditions is done for local requirements or for your convenience. In the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
SMARTSOFT websites contains the following website: smartsoft.com.cy, pms.bitsmartservices.com/ui/, pms.bitsmartservices.com/
No other rights
No other rights or licenses are granted under this Agreement, by implication, estoppel, statute or otherwise, except as expressly provided herein.
SMARTSOFT does not promise that the Services will be uninterrupted, error free, or completely secure. You acknowledge that there are risks inherent due to dependency on internet connectivity, third party service providers that could result in the loss of their privacy, Confidential Information, and property. SMARTSOFT has no obligation to provide security other than as stated in this Agreement. SMARTSOFT disclaims any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the service chosen. The Services are provided AS IS, subject to any applicable service level. Any voluntary services SMARTSOFT may perform at Your request and without any additional charge are provided AS IS, including any services that are deemed unsupported.
You are responsible for understanding the regulatory requirements applicable to Fr business and for selecting and using those services in a manner that complies with the applicable requirements.
You are solely responsible for determining the suitability of the services for their use in light of any applicable regulations enacted from time to time by the concerned authorities and also in compliance with the applicable data privacy requirements or other applicable data privacy laws and regulations of the User country.
If the You are accessing the service, product or the solution from a country other you’re your domicile, You shall be solely responsible for ensuring the compliance with the applicable laws and regulations of the country from where the service / solution / SMARTSOFT product is accessed or used.