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Terms and Conditions
KIT Experience (PTY) LTD, registration number 2019 / 362979 / 07, ("KIT XM", "we", "our" or "us"), is the provider of the Software-as-a-Service (SaaS) platform described in these Terms and Conditions. KIT XM offers a comprehensive platform tailored to the needs of restaurants, facilitating subscription-based services and managing platform fees. These Terms and Conditions govern the relationship between KIT XM and the restaurants ("User" or "Restaurant") subscribing to and utilizing the services provided by KIT XM. By accessing or using the Platform, the User agrees to be bound by these Terms and Conditions.
"Platform" refers to Online Menus the Software-as-a-Service (SaaS) platform provided by KIT XM, including all associated software, applications, and services. Specifically, for the purposes of these Terms and Conditions, "Platform" refers to the provision of Online Menus to restaurants.
"User" or "Restaurant" refers to the entity subscribing to and utilizing the services provided by KIT XM.
"Subscription Fee" refers to the fee paid by the User for access to the Platform, as determined by the selected subscription plan.
"Platform Fee" refers to the fee charged by KIT XM for each transaction processed through the Platform, as determined by transaction volume and other factors.
"POPI Act" refers to the Protection of Personal Information Act, a South African law governing the protection of personal information.
Unless otherwise stated, words importing the singular include the plural and vice versa, words importing gender include all genders, and references to persons include individuals, corporations, partnerships, associations, and other entities. The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
The relationship between KIT XM and the User is that of independent contractors. Nothing in these Terms and Conditions shall be construed as creating a partnership, joint venture, employment, agency, or franchise relationship between the parties.
Neither party shall have the authority to bind the other party or to incur any obligation on behalf of the other party without the other party's prior written consent.
These Terms and Conditions do not grant exclusivity to either party. Each party retains the right to engage in similar agreements with other parties and to develop or distribute competing products or services.
These Terms and Conditions are solely for the benefit of KIT XM and the User and do not confer any rights or remedies upon any third party.
The User may not assign, transfer, or sublicense any of its rights or obligations under these Terms and Conditions without the prior written consent of KIT XM. KIT XM may freely assign, transfer, or sublicense any of its rights or obligations under these Terms and Conditions without notice.
By accessing or using the Platform, the User acknowledges and agrees to the terms governing the relationship between KIT XM and the User as set forth in this section. If the User does not agree to these terms, they must not access or use the Platform.
KIT XM offers different subscription plans with varying features and pricing options. The User may choose a subscription plan that best suits their needs
The User agrees to pay the subscription fee ("Fee") for the selected Plan. The Fee shall be paid in advance for the subscription period specified in the Plan.
Users subscribed to the Free Plan will not be required to pay the Platform Fee for each order processed through the Platform. However, other terms and conditions of the Free Plan, including limitations on features or usage, may apply
The User shall provide accurate and complete payment information. Failure to pay the Fee may result in the suspension or termination of access to the Platform.
Subscriptions may automatically renew at the end of the subscription period unless cancelled by the User. KIT XM reserves the right to modify the Fee and terms of renewal upon prior notice.
By subscribing to a Plan offered by KIT XM, the User authorizes recurring payments for the Subscription Fee and any applicable Platform Fees. The User agrees that KIT XM may automatically charge the User's designated payment method on a recurring basis for the duration of the subscription period.
The User shall provide accurate and up-to-date payment information, including credit card details or other payment methods accepted by KIT XM. The User acknowledges and agrees that it is their responsibility to maintain valid payment information throughout the subscription period.
Recurring payments shall be processed in accordance with the billing cycle specified in the User's selected Plan. The User shall be notified in advance of any changes to the billing cycle or amount of recurring payments.
The User may modify or cancel their subscription at any time through the Platform's account settings or by contacting KIT XM's customer support. Any modifications or cancellations must be made before the next billing cycle to take effect for that cycle.
If a recurring payment fails due to insufficient funds, expired payment method, or any other reason, KIT XM may suspend or terminate the User's access to the Platform until the outstanding payment is made. KIT XM reserves the right to assess a fee for failed payments or late payments.
The User acknowledges and agrees that Subscription Fees and Platform Fees are non-refundable, except as expressly provided in these Terms or required by applicable law.
All recurring payments shall be processed in the currency specified by KIT XM and are exclusive of any applicable taxes, which shall be added to the total amount payable by the User.
By subscribing to a Plan and authorizing recurring payments, the User acknowledges and agrees to the terms and conditions set forth in this section. If the User does not agree to these terms, they must not subscribe to a Plan or authorize recurring payments.
In addition to the Subscription Fee, the User agrees to pay a platform fee ("Platform Fee") for each transaction processed through the Platform. The Platform Fee shall be determined based on the transaction volume and other factors as specified by KIT XM.
The Platform Fee charged by KIT XM for each transaction processed through the Platform shall be a fixed amount of R1.00 (one rand and zero cents) per order.
The User agrees to pay the Platform Fee for each order processed through the Platform in accordance with the payment terms specified by KIT XM.
The Platform Fees will be invoiced to the Restaurant on a regular basis, as determined by the billing cycle specified by KIT XM.
KIT XM reserves the right to adjust the Platform Fee at its discretion with prior notice to the User. Changes in the Platform Fee will apply to transactions processed after the effective date of the adjustment.
By accessing or using the Platform, the User acknowledges and agrees to the Platform Fee set forth in this section. If the User does not agree to these terms, they must not access or use the Platform.
The User acknowledges and agrees that they are responsible for paying all Platform Fees in accordance with the terms specified by KIT XM.
KIT XM shall issue invoices to the User for the Platform Fees in accordance with the agreed-upon billing cycle or payment schedule.
If the User fails to pay any invoice for Platform Fees by the due date specified in the invoice, KIT XM may, at its sole discretion, assess a late fee or interest on the overdue amount.
In the event of non-payment of Platform Fees, KIT XM reserves the right to suspend or terminate the User's access to the Platform until such time as the outstanding invoices are paid in full.
Upon payment of all outstanding invoices, KIT XM may, at its sole discretion, reinstate the User's access to the Platform. However, KIT XM reserves the right to require payment of any applicable reinstatement fees or penalties.
In the event that any invoice remains unpaid for an extended period of time, KIT XM may pursue collection efforts, including but not limited to engaging third-party collection agencies or taking legal action to recover the outstanding amounts.
If the User fails to pay any invoice for Platform Fees within a reasonable period of time after receiving notice of non-payment from KIT XM, KIT XM may, at its sole discretion, terminate these Terms and the User's access to the Platform.
By accessing or using the Platform, the User acknowledges and agrees to the consequences of failure to pay invoices for Platform Fees as set forth in this section. If the User does not agree to these terms, they must not access or use the Platform.
The User is granted a non-exclusive, non-transferable right to access and use the Platform during the subscription period, subject to compliance with these Terms.
The User shall not: (a) sublicense, sell, or resell access to the Platform; (b) modify, adapt, or hack the Platform; (c) use the Platform in any unlawful manner or for any unlawful purpose.
KIT XM shall implement reasonable measures to secure the User's data on the Platform. However, the User acknowledges that no data transmission over the internet is completely secure, and KIT XM shall not be liable for any unauthorized access to or loss of data.
KIT XM shall provide support services to assist the User in the use of the Platform during KIT XM's standard business hours, as specified by KIT XM from time to time.
KIT XM shall use commercially reasonable efforts to respond to support requests submitted by the User within a reasonable time frame, taking into account the nature and complexity of the request.
KIT XM may prioritize support requests based on factors such as the severity of the issue, the impact on the User's business operations, and the availability of resources.
KIT XM shall use commercially reasonable efforts to resolve support requests in a timely manner, taking into account the nature of the issue and the resources available to KIT XM.
KIT XM shall provide regular updates to the User regarding the status of support requests and any actions taken to resolve them. KIT XM may communicate with the User through email, phone, or other electronic means.
KIT XM's obligation to provide support services is subject to the User's compliance with these Terms and Conditions and the payment of all applicable fees. KIT XM shall not be responsible for providing support services for issues arising from the User's misuse of the Platform or failure to follow KIT XM's instructions or recommendations.
By accessing or using the Platform, the User acknowledges and agrees to the support service level set forth in this section. If the User does not agree to these terms, they must not access or use the Platform.
Either party may terminate the subscription by providing written notice to the other party. Upon termination, the User's access to the Platform will be suspended, and any outstanding Fees and Platform Fees shall become due and payable.
Sections (Platform Fee), (Use of the Platform), (Intellectual Property), and (Limitation of Liability) shall survive termination of these Terms.
The Platform, including all intellectual property rights therein, is and shall remain the exclusive property of KIT XM. The User shall not acquire any ownership rights in the Platform.
The User may provide feedback, suggestions, or ideas regarding the Platform. KIT XM may use such feedback without any obligation to the User.
THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. KIT XM DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
IN NO EVENT SHALL KIT XM BE LIABLE TO THE USER, RESTAURANT CUSTOMERS, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OR INABILITY TO USE THE PLATFORM, EVEN IF KIT XM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
KIT XM'S TOTAL LIABILITY TO THE USER, RESTAURANT CUSTOMERS, OR ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE PLATFORM SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY THE USER TO KIT XM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
KIT XM SHALL NOT BE LIABLE FOR ANY THIRD-PARTY ACTIONS, INCLUDING BUT NOT LIMITED TO THE ACTIONS OF OTHER USERS OF THE PLATFORM, THIRD-PARTY SERVICE PROVIDERS, OR THIRD-PARTY CONTENT.
KIT XM SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS UNDER THESE TERMS TO THE EXTENT THAT SUCH FAILURE OR DELAY IS CAUSED BY EVENTS BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, WAR, TERRORISM, STRIKES, LABOR DISPUTES, PANDEMICS, OR GOVERNMENTAL RESTRICTIONS.
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, WHETHER THE CLAIM ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY.
By accessing or using the Platform, the User acknowledges and agrees to the limitations of warranty and liability set forth in this section. If the User does not agree to these limitations, they must not access or use the Platform.
These Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements and understandings.
The User agrees to indemnify, defend, and hold harmless KIT XM and its affiliates, officers, directors, employees, agents, and licensors from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or in connection with:
(a) User's use or misuse of the Platform;
(b) User's violation of these Terms or any applicable law or regulation;
(c) User's violation of any rights of any third party, including but not limited to intellectual property rights or privacy rights;
(d) Any content or information submitted, posted, transmitted, or made available by the User on or through the Platform;
(e) Any transaction or interaction between the User and any other user of the Platform or any third party.
KIT XM reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate with KIT XM in asserting any available defences.
The User agrees to promptly notify KIT XM of any claim or demand for indemnification and to provide reasonable cooperation to KIT XM in the defence of such claim or demand.
Indemnification by KIT XM: KIT XM agrees to indemnify, defend, and hold harmless the User from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or in connection with any breach of these Terms by KIT XM.
The indemnification obligations set forth in this section shall survive the termination of these Terms and the User's use of the Platform. The total liability of the indemnifying party under this section shall be subject to the limitations of liability set forth in Section 6 of these Terms.
By accessing or using the Platform, the User acknowledges and agrees to the indemnification obligations set forth in this section. If the User does not agree to these obligations, they must not access or use the Platform.
The User acknowledges and agrees that all intellectual property rights, including trademarks, service marks, copyrights, and patents, associated with the Platform are owned by KIT XM or its licensors. The User shall not acquire any ownership rights in the Platform or any associated intellectual property.
The User may not use any trademarks, service marks, or logos of KIT XM without the prior written consent of KIT XM.
Subject to the User's compliance with these Terms, KIT XM grants the User a limited, non-exclusive, non-transferable, revocable license to access and use the Platform solely for the User's internal business purposes.
The User retains ownership of any content or information submitted, posted, transmitted, or made available by the User on or through the Platform ("User Content"). By submitting User Content, the User grants KIT XM a worldwide, royalty-free, sublicensable, transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the provision of the Platform and KIT XM's business operations.
KIT XM respects the intellectual property rights of others and expects its users to do the same. If the User believes that their copyright has been infringed upon, they may submit a notice of copyright infringement to KIT XM in accordance with applicable law.
KIT XM respects the intellectual property rights of third parties. If the User believes that their intellectual property rights have been infringed upon by another user of the Platform, they may submit a notice of infringement to KIT XM in accordance with applicable law.
Except for the limited license expressly granted herein, no other licenses or rights are granted to the User, whether by implication, estoppel, or otherwise, under any intellectual property rights of KIT XM or its licensors.
By accessing or using the Platform, the User acknowledges and agrees to abide by the trademark and intellectual property rights set forth in this section. If the User does not agree to these rights, they must not access or use the Platform.
The User acknowledges and agrees that the use of the Platform is at their own risk. The Platform is provided on an "as is" and "as available" basis, without any warranties of any kind, express or implied.
KIT XM makes no warranties or representations regarding the accuracy, reliability, completeness, or timeliness of the Platform or any content or information provided therein. KIT XM disclaims all warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement.
KIT XM may provide links to third-party websites or resources for the convenience of the User. KIT XM does not endorse or assume any responsibility for any third-party content, products, or services. The User acknowledges and agrees that KIT XM shall not be liable for any loss or damage arising from the use of third-party websites or resources.
KIT XM makes no guarantees regarding the results that may be obtained from the use of the Platform. The User acknowledges and agrees that KIT XM shall not be liable for any loss or damage arising from reliance on the Platform or any content or information provided therein.
In no event shall KIT XM be liable to the User or any third party for any indirect, incidental, consequential, special, exemplary, or punitive damages, including but not limited to damages for loss of profits, loss of data, or interruption of business, arising out of or in connection with the use of the Platform or any content or information provided therein.
KIT XM's total liability to the User for all claims arising out of or relating to these Terms or the use of the Platform shall not exceed the total amount of fees paid by the User to KIT XM during the twelve (12) months preceding the event giving rise to such liability.
By accessing or using the Platform, the User acknowledges and agrees to the disclaimer set forth in this section. If the User does not agree to these terms, they must not access or use the Platform.
By using the Platform, the User consents to receive communications from KIT XM, including but not limited to emails, push notifications, and messages within the Platform, regarding the User's account, transactions, updates, promotions, and other relevant information.
The User may opt out of receiving promotional communications from KIT XM by following the unsubscribe instructions provided in such communications. However, the User acknowledges that they may not be able to opt out of receiving certain essential communications related to their account or transactions.
The User agrees to provide accurate and up-to-date contact information, including email address and phone number, to ensure the delivery of communications from KIT XM. KIT XM shall not be liable for any consequences arising from the User's failure to provide accurate contact information.
While KIT XM implements reasonable measures to secure communications transmitted through the Platform, the User acknowledges that no method of transmission over the internet or electronic storage is completely secure. KIT XM shall not be liable for any unauthorized access to or interception of communications transmitted through the Platform.
The User may manage their communication preferences within the Platform settings or by contacting KIT XM's customer support. However, the User acknowledges that certain communications, such as account notifications and transaction confirmations, are essential and cannot be opted out of.
By accessing or using the Platform, the User acknowledges and agrees to receive communications from KIT XM in accordance with this section. If the User does not agree to receive communications, they must not access or use the Platform.
All content available on the Platform, including but not limited to text, graphics, logos, images, audio clips, videos, and software, is the property of KIT XM or its licensors and is protected by copyright, trademark, and other intellectual property laws.
The User may access and view the content on the Platform solely for their internal business purposes and in accordance with these Terms. The User shall not copy, modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any content obtained from the Platform without the prior written consent of KIT XM.
The User is solely responsible for any content or information submitted, posted, transmitted, or made available by the User on or through the Platform ("User Content"). The User represents and warrants that they have all necessary rights, licenses, and permissions to use and authorize KIT XM to use the User Content as contemplated under these Terms.
The User shall not submit, post, transmit, or make available any User Content that:
(a) Infringes any intellectual property rights, privacy rights, or other rights of any third party;
(b) Is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
(c) Contains viruses, worms, Trojan horses, malware, or any other harmful or destructive content;
(d) Impersonates any person or entity or falsely states or otherwise misrepresents the User's affiliation with a person or entity.
KIT XM does not pre-screen or monitor User Content but reserves the right to remove or modify any User Content that violates these Terms or is otherwise objectionable. KIT XM shall not be liable for any User Content or any loss or damage resulting from the use of User Content.
By submitting User Content, the User grants KIT XM a worldwide, royalty-free, sublicensable, transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the provision of the Platform and KIT XM's business operations.
The User may provide feedback, suggestions, or ideas regarding the Platform or its content. The User agrees that KIT XM may use such feedback without any obligation to the User.
By accessing or using the Platform, the User acknowledges and agrees to abide by the content and User Content policies set forth in this section. If the User does not agree to these policies, they must not access or use the Platform.
By using the Platform, the User agrees to receive marketing communications from KIT XM, including but not limited to newsletters, promotions, and special offers.
The User may opt out of receiving marketing communications at any time by following the unsubscribe instructions provided in such communications or by contacting KIT XM's customer support.
KIT XM may use the User's contact information, demographic data, and usage data collected through the Platform to personalize and improve marketing communications and to analyze the effectiveness of marketing campaigns.
KIT XM may engage third-party service providers to assist with marketing activities, such as email marketing or advertising campaigns. These third parties may have access to the User's contact information for the purpose of delivering marketing communications.
KIT XM shall comply with all applicable laws and regulations governing marketing communications, including but not limited to the Protection of Personal Information Act (POPI Act) in South Africa.
KIT XM shall not send unsolicited marketing communications to individuals who have not consented to receive such communications, in accordance with applicable laws and regulations.
By accessing or using the Platform, the User acknowledges and agrees to receive marketing communications from KIT XM in accordance with this section. If the User does not agree to receive marketing communications, they must not access or use the Platform.
The User agrees not to engage in any illegal or unlawful activities while using the Platform, including but not limited to:
(a) Violating any applicable laws, regulations, or statutes;
(b) Engaging in fraud, deception, or misrepresentation;
(c) Trafficking in illegal goods or substances;
(d) Infringing upon the intellectual property rights of others;
(e) Transmitting or distributing malware, viruses, or other harmful software.
The User agrees not to abuse or misuse the Platform, including but not limited to:
(a) Interfering with the proper functioning of the Platform;
(b) Attempting to gain unauthorized access to the Platform or its related systems or networks;
(c) Circumventing any security measures or authentication protocols implemented by KIT XM;
(d) Engaging in activities that may disrupt or degrade the performance of the Platform.
The User agrees not to engage in harassment, discrimination, or hate speech while using the Platform, including but not limited to:
(a) Posting or transmitting offensive, derogatory, or discriminatory content;
(b) Targeting individuals or groups based on race, ethnicity, gender, sexual orientation, religion, or other protected characteristics;
(c) Engaging in cyberbullying or online harassment of other users or individuals.
The User agrees not to misuse or improperly handle any personal or confidential information obtained through the Platform, including but not limited to:
(a) Unauthorized access to or disclosure of sensitive information;
(b) Use of personal information for purposes other than those explicitly authorized by the individual;
(c) Failure to implement adequate security measures to protect user data from unauthorized access or disclosure.
The User agrees to comply with all provisions of these Terms and Conditions and any additional guidelines or policies provided by KIT XM. Violation of any of these prohibited practices may result in the immediate suspension or termination of the User's access to the Platform.
By accessing or using the Platform, the User acknowledges and agrees to abide by the prohibited practices set forth in this section. If the User does not agree to these practices, they must not access or use the Platform.
The User agrees to comply with all applicable laws, regulations, and industry standards in connection with their use of the Platform. The User shall not use the Platform for any unlawful or fraudulent purpose.
The User represents and warrants that they are duly organized, validly existing, and in good standing under the laws of their jurisdiction of organization. The User further represents and warrants that they have all necessary power and authority to enter into these Terms and to perform their obligations hereunder.
The User agrees to provide accurate and complete information to KIT XM, including but not limited to registration information, billing information, and contact information. The User shall promptly update any information that becomes inaccurate or outdated.
The User represents and warrants that they are solvent and able to pay their debts as they become due. The User shall notify KIT XM promptly if they become insolvent or unable to pay their debts.
The User agrees to maintain business continuity and to promptly notify KIT XM of any material changes to their business operations that may affect their use of the Platform or their compliance with these Terms.
KIT XM reserves the right to suspend or terminate the User's access to the Platform if the User is found to be in violation of these Terms or if KIT XM reasonably believes that the User's use of the Platform poses a risk of harm to KIT XM, other users, or third parties.
By accessing or using the Platform, the User acknowledges and agrees to maintain good standing and comply with the requirements set forth in this section. If the User does not agree to these requirements, they must not access or use the Platform.
These Terms and any disputes arising out of or in connection with these Terms shall be governed by and construed in accordance with the laws of the Republic of South Africa, without regard to its conflict of law principles.
Any dispute, controversy, or claim arising out of or relating to these Terms, including the validity, interpretation, breach, or termination thereof, shall be resolved by the courts of the Republic of South Africa, and the User hereby submits to the exclusive jurisdiction of such courts.
Prior to initiating any legal action, the User agrees to attempt to resolve any disputes or claims arising under these Terms through good faith negotiation. If the parties are unable to resolve the dispute through negotiation, either party may pursue any available legal remedies.
To the fullest extent permitted by applicable law, the User hereby waives any right to a trial by jury in any action or proceeding arising out of or related to these Terms.
If any provision of these Terms is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to make it enforceable, and the remaining provisions of these Terms shall remain in full force and effect.
By accessing or using the Platform, the User acknowledges and agrees to submit to the exclusive jurisdiction of the courts of the Republic of South Africa and to abide by the governing laws and jurisdiction set forth in this section. If the User does not agree to these terms, they must not access or use the Platform.
By accessing or using the Platform, the User acknowledges that they have read, understood, and agreed to be bound by these Terms and Conditions. If the User does not agree to these Terms, they must not access or use the Platform.