Loaded's Terms of Use

Welcome to “Loaded”, cloud-based hospitality software that lets you manage your revenue, labour, and cost of goods in real-time, all in the one app! We’re excited to have you here but before you start using Loaded, we need you to look through and accept these Terms of Use (Terms).

1) The Background

‍These Terms form a binding contract between Loaded Reports Limited (Company number 3666127) of Level 1, 161 Glenda Drive, Frankton, Queenstown, 9300, New Zealand (we, us or our), and the entity or firm you’re authorised to represent (you or your), so you should read these Terms carefully before accessing or using Loaded. When you create a subscription to use Loaded, or otherwise access or use Loaded outside of a dedicated subscription, you are deemed to have accepted these Terms. If you do not agree to these Terms, then you can’t use Loaded. 

If you have questions or comments after you’ve read these Terms, please reach out to support@loadedhub.com to get in touch. We’d love to help.

2) Registration and Security

a) You must register as a user to access, and use Loaded. You may also invite other persons to register to access and use Loaded through your subscription (Your Users). You are responsible for Your Users compliance with these Terms. 
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b) When registering to use Loaded, you and Your Users must provide accurate, current, and complete information as requested or directed on Loaded, and to promptly update this information to maintain its accuracy. 
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c) You are responsible for maintaining the confidentiality of any password and username you (and Your Users) are given or select in connection with Loaded, and you are fully responsible for all activities that occur under your password or account. You agree to immediately notify us if you become aware of any unauthorised use of your password or username or any other breach of security. 

3) Access and Use of Loaded  

a) You are responsible for (and must acquire all necessary licences for) all hardware and third-party software necessary for you to access and use Loaded, and otherwise configuring Loaded (as allowed by Loaded), to meet your particular needs, including loading organisation and reference data relevant to your organisation.

b) Subject to your on-going payment of the subscription fees, we grant you a limited non-transferable, non-exclusive right to access and use Loaded, and to allow such access and use by Your Users, for your internal business purposes, subject to any parameters that apply to the plan that you have subscribed. 

c) You are required to comply with: (i) all applicable laws (including, without limitation export control and intellectual property laws) in connection with your access to and use of Loaded; (ii) any other guidelines or requirements provided through Loaded; and (iii) our reasonable directions regarding access to or use of Loaded. 

d) You must not (and must not authorise any person to):
(i) use, copy or reproduce Loaded or any Loaded Content (as defined below) except as expressly authorised under these Terms;
(ii) reverse engineer Loaded (to the extent such restriction is permitted by law);
(iii) send or store code (including malicious code and malware) that could result in damage to Loaded; 
(iv) integrate or link Loaded with other software, except as authorised by Loaded; 
(v) use your knowledge of, or access to, Loaded to (or to assist any third party to) develop any software, products or services that compete with Loaded;
(vi) use Loaded for any illegal or offensive purpose, or to retrieve, store, manipulate, process, transmit, display or forward any data that is illegal, defamatory or offensive;
(vii) wilfully interfere with or disrupt the integrity of Loaded; nor
(viii) attempt to gain unauthorized access to any underlying software or infrastructure used to provide Loaded or any of our related system or networks. 

e) Loaded may contain links to other websites, which are provided for Your Users’ convenience only. We do not endorse (and are not responsible or liable for) those websites, their operators, functionality, content or the goods and services that they describe or make available. If any of Your Users choose to access these linked sites, they do so at their own risk and subject to those third party terms and conditions and privacy policies.  

4) Service Acknowledgments 

‍You acknowledge that:

a) We may (at our discretion) modify and update Loaded (including the functionality, data formats and other matters relating to Loaded, and the support service parameters) from time to time, so long as any such modifications do not substantially reduce the functionality or performance of Loaded, or your ability to continue to use Loaded in the manner contemplated by these Terms. Further, where any such modifications or updates unintentionally cause bugs or reduced functionality with your use of Loaded, then we will use our reasonable endeavours to resolve those issues as soon as reasonably possible; 

b) You are solely responsible for all results obtained from the input and processing of Your Content (defined below) via Loaded; 

c) You may select certain products, content, other materials, methodologies, processes or services supplied by a third party, for use/integration with Loaded. If you do so, you will be required to enter into a direct agreement with the relevant third party. While we may provide services to integrate such items with Loaded, or may configure Loaded to use or process outputs from them, we have no responsibility or liability for such products, content, other materials, methodologies, processes or services of any third party and your rights with respect to the foregoing are solely against the relevant third party under the terms you hold with them; and 

d) We may develop new functionality of or extensions to Loaded and additional fees may apply should you wish to acquire that new functionality / extension.  

5) Trials 

‍We may agree to make Loaded available to you for no charge on a trial basis. You acknowledge that any trial of Loaded is provided on an “as-is” and “as available” without any warranty of any kind, and in particular the provisions of section 11.2(a) do not apply to such trial of Loaded.  Any trial of Loaded will automatically cease on the earlier of (a) the end of the free trial period provided by us, or (b) the start date of any subscriptions purchased by you for Loaded. 

6) Your Content  

a) Loaded offers features that allow you (and Your Users) to upload to Loaded, or transmit or communicate through Loaded, information, data, graphics, comment, text or other materials (Your Content). You retain ownership of any of Your Content, and grant us a royalty-free licence to use, copy, transmit, store, analyse, and back up Your Content to: enable you to use Loaded; allow us to improve, develop and protect Loaded; create new services; communicate with you about your subscription; and disclose to third party service providers and partners to enable and support such purposes.

b) By submitting any of Your Content on, to, or through Loaded, you understand and agree that:
(i) you are responsible for Your Content. You must: (i) use your best efforts to ensure Your Content is accurate and up to date; and (ii) ensure Your Content is not misleading, complies with all applicable laws, regulations, and codes of conduct and does not infringe any third party intellectual property or other rights;
(ii) Your Content must not be defamatory, offensive, vulgar, racist, obscene, abusive, threatening, harassing, discriminatory, invasive of another’s privacy or similarly inappropriate; and
(iii) you must have (and will retain) all rights and permissions needed to enable us to use Your Content as contemplated by Loaded and these Terms.

c) It is your responsibility to immediately remove any of Your Content that does not comply with section 6(b). 

d) We are not responsible for any of Your Content posted on or transmitted via Loaded (including by Your Users) and we have no obligation to monitor any of the posted Your Content. Nevertheless, we may monitor or review any of Your Content as we choose and we reserve the right to (without notice and without being obliged to do so), on reasonable grounds including breach of this section 6, monitor, block, modify or remove Your Content from Loaded, and will not be liable in any way for doing so.  

e) Once a subscription is terminated by you or us, it is archived and data submitted or created by you (including Your Content) is no longer available to you. We retain it for 14 days, during which, as a subscriber, you can reactivate your subscription and once again access such data by paying the subscription fees. 

7) Loaded Content

a) We (or our relevant licensors) retain all right, title, intellectual property rights and other proprietary interests in or relating to (i) Loaded (including in any graphics, names, marks, information, images, text, standardised data structures or other material included within Loaded (together Loaded Content)) and any software platform on which Loaded operates; and (b) any de-identified data arising out of data analysis undertaken by us using Your Content or other data relating to any of Your Users’ use of Loaded.  

b) The Loaded Content is subject to change at any time without notice and while we will use our reasonable efforts to ensure that Loaded Content is accurate and complete, it may contain errors.

c) You acknowledge that any questions, comments, suggestions, ideas, feedback or other information about Loaded which you provide us are non-confidential and may be used by us without restriction.

8 ) Fees

a) We will submit invoices to you on the basis of the subscription you have selected. Invoices are sent in advance on a monthly or annual basis (as selected by you when registering to use Loaded), and are payable by you in accordance with the date specified in the invoice, without set-off or deduction.  All invoiced amounts are non-cancellable and non-refundable and will apply irrespective of whether you use Loaded (including if you only use part of a month or year’s subscription for Loaded).

b) You are responsible for paying all taxes associated with your use of Loaded wherever levied. Your responsibility includes withholding tax if it applies, unless we already process that withholding tax. 

c) In order to continue using Loaded, you need to make timely payments based on the subscription you have selected. To avoid delayed or missed payments, please make sure we have accurate payment information. If you fail to pay subscription fees, we will take reasonable steps to notify you of the failure. If you do not pay within 14 days from the date on which the subscription fees became due and payable, we may terminate your subscription.

d) If your subscription is terminated according to section 8(c), and you wish to start using Loaded again, you can reactivate your subscription by paying any outstanding subscription fees in full, but we can’t guarantee that any of Your Content from your previous subscription will be available, as per section 6(e).

e) We may reasonably increase our fees (including to reflect increased costs of delivering Loaded) at any time during your subscription, by providing at least 30 days’ notice of the change.  

9) Data Privacy 

9.1) Our Privacy Policy

‍Your privacy is important to us. Please review our Privacy Policy which sets out in detail how we process any personal information that is included in Your Content (our Privacy Policy is located at http://www.loadedhub.com/loaded-privacy-policy). By registering on or using Loaded, you: (i) indicate that you understand and consent to the collection, use, and disclosure of Your Content in accordance with our Privacy Policy; and (ii) consent to us using Your Content to send you notifications and other information related to Loaded or any of our other products / services. 

9.2) Privacy

a) You must ensure that you have all necessary consents from Your Users for their personal information to be provided to us (and to transmit it through, or upload it onto, Loaded) for processing in accordance with our Privacy Policy.

b) We will, to the extent that personal information is included in Your Content:   
(i) comply with any applicable privacy laws by which we are bound when accessing, collecting, storing, transferring, using or otherwise handling such personal information; and
(ii) notify you promptly on us becoming aware of any breach by us of such privacy laws, and will take all reasonable steps to remediate, and mitigate the effects of, the breach as soon as practicable, keeping you regularly apprised of progress.

10) Renewal, Suspension and Termination 

a) Your subscription to Loaded continues for the period covered by the subscription fee paid or payable. At the end of each billing period, these Terms automatically continue for a further period of the same duration as the previous one (i.e. monthly or annually, as selected by you when registering to use for Loaded), provided you continue to pay the subscription fee in accordance with section 8 (Fees). If you do not want your subscription to renew at the end of your then-current paid-up subscription period, then you must cancel your subscription before the end of your then-current paid-up subscription period. You can cancel your subscription by contacting us at support@loadedhub.com requesting to cancel.

b) We may at any time temporarily suspend access by you / Your Users to Loaded, for scheduled maintenance, security reasons or if we reasonably believe that you have breached these Terms.  Where practical, we will provide you with advance notice of such suspension.  We will not be liable to you or any third party for any such suspension.

c) Either you, or us may terminate these Terms immediately on notice, if the other party (a) is in breach any of these Terms and does not remedy the breach within 14 days after receiving notice of the breach, or (b) becomes insolvent, goes into liquidation or has a receiver or manager appointed over any of its assets.

d) We may terminate these Terms for convenience at any time by providing you with at least 30 days’ written notice, with any paid fees refundable to you as follows:
(i) if you have paid for an annual subscription, we will refund any paid fees on a pro-rata basis for the unused portion of the subscription; or
(ii) if you are paying for a monthly subscription, we will not refund you any paid fees, but you will not be charged fees for future months following the date of termination.

e) No refund is due to you if you terminate your subscription, or we terminate it in accordance with these Terms.

f) Following termination of these Terms, your registration for and right to use Loaded will immediately cease. Accrued rights and liabilities are unaffected. All sections in these Terms which are stated or intended to continue after cancellation will continue to apply. You must not attempt to re-register for or continue to use Loaded if we have given you notice of termination.

11) Disclaimers, indemnities and liability 

11.1) Disclaimer of warranties

a) You acknowledge that:
(i) we do not warrant that you or Your Users will have continuous access to Loaded (or Your Content hosted on it) and we will not be liable if Loaded or that data is unavailable due to computer downtime, or any matter set out in this section 11.1.
(ii) we have no control over telecommunications networks or services, the internet or other technology or utilities required to make Loaded and Your Content available over the internet - and therefore accept no responsibility or liability for any loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise; and 
(iii) electronic communication (including electronic mail) is vulnerable to interception by third parties - so while we will use industry standard security measures to keep Loaded and Your Content (that is stored in Loaded) secure to the extent reasonably possible (including through the use of Microsoft Azure Services hosting in Australia, or other hosting arrangements providing a similar level of data security), we cannot and do not guarantee the security or confidentiality of these communications, or the security of Loaded and Your Content.   

b) Loaded (and related services we provide) and all third-party products are made available to you on an “as is” and “as available” basis. We disclaim all warranties, express or implied, including any implied warranties of non-infringement, merchantability, and fitness for a particular purpose, subject to the rights you have under the laws in the country where you live applying to the breach of any non-excludable guarantee. Where the laws of that country allow us to limit our liability for breach of such guarantee, then at our option, our liability is limited to either replacing or paying the cost of replacing the relevant good(s) and/or service(s) (unless the non-excludable guarantee says otherwise).

11.2) Indemnities 

a) We indemnify you against any amount you are finally ordered to pay to a third party by a Court of competent jurisdiction (or settlement agreed by us), which arises from a claim alleging that your (or Your Users’) use of Loaded in accordance with these Terms infringes the intellectual property rights of that third party (although always excluding any intellectual property rights in any open source components embedded in Loaded).  The indemnity in this section is your exclusive remedy (and our sole liability) for infringement of any third party intellectual property rights.

b) You indemnify us against any amount we are finally ordered to pay to a third party by a Court of competent jurisdiction (or settlement agreed by you), which arises from a claim alleging that our access to or use of Your Content in accordance with these Terms infringes the intellectual property rights, confidentiality rights or privacy of that third party.

c) If you or us wish to enforce an indemnity under this section 11.2, then they will give notice to the other party (the indemnifying party) as soon as practicable, and permit the indemnifying party, at the indemnifying party’s expense, to have sole control of the defence and all settlement negotiations and litigation. 

11.3) Liability 

a) Except in the case of your breach of our intellectual property rights, your obligation to pay the fees or either you or our breach of confidentiality, to the maximum extent permitted by law, neither party will be liable, including in negligence:
(i) for any indirect, special, consequential, incidental, or punitive damages of any nature, or any loss of revenue or profit, loss of opportunity, loss of reputation, loss of anticipated savings or loss of data or use, regardless of whether a party knew of the potential for such damages; or
(ii) in aggregate (for all breaches by it of, or acts and omissions under, these Terms) to an extent greater than the fees paid by you under these Terms in the twelve (12) month period immediately prior to the event giving rise to the claim. 

b) Each party’s liability for loss or damage sustained by the other will be reduced proportionately to the extent that such loss or damage has been caused or contributed to by the other party.

12) Changes to these Terms

‍We sometimes will decide to change these Terms.  These changes won’t apply retrospectively and, if we make changes, we’ll make every effort to let you know. You can keep track of changes to these Terms by referring to the version and effective date at the top of the terms. We will reasonably endeavour to provide you with 7 days’ notice of material changes before they become effective, unless we need to make immediate changes for reasons we don’t have control over. When we notify you, we’ll do it by email or by posting a visible notice through Loaded. If we decide (in our reasonable discretion) that a change is not material, then we may not notify you. If you find a modified term unacceptable, you may cancel your subscription according to section 10(a). By registering on or continuing to use Loaded after the posting of such changes, you agree to be bound by the changes.   

13) General

a) Force majeure. Neither you nor we are liable for failure to perform or delay in performing any obligation (excluding for any subscription payment) under these Terms if the failure or delay is caused by any circumstances beyond your or our reasonable control including third party telecommunication failures. 

b) Choice of Law. The laws of the location of Loaded contracting party exclusively govern these Terms (excluding its conflict of laws provisions).  Any action arising relating to these Terms will fall within the exclusive jurisdiction of the courts of Victoria, Australia.

c) Transfer. We may transfer, assign, novate or sub-contract all or part of our rights or duties under these Terms. As these Terms are personal to you, you may not transfer, novate or assign any of your rights or duties under it without our prior written consent.

d) Validity. If any provision of these Terms is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect. Any delay or failure by us to enforce any right or obligation under these Terms shall not constitute a waiver of any such right or obligation.

e) Entire Agreement. These Terms (along with our Privacy Policy) represent the entire agreement between you and us relating to its subject matter. It supersedes and replaces any prior agreements, representations, and understandings. You acknowledge that any terms and conditions incorporated or referenced in any purchase order or ordering document provided by you are expressly excluded. 

f) Interpretation. In these Terms unless the context otherwise requires: headings are for ease of reference only and do not affect the meaning of these Terms; the word “acknowledge” is to be interpreted as “acknowledge and agree”; a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it; a reference to the word ‘including’ or ‘includes’ is to be construed without limitation to the preceding words.