1 DEFINITIONS AND INTERPRETATIONS
1.1 The following definitions and rules of interpretation apply in this Agreement Business Days: any day which is not a Saturday, Sunday or public holiday in England. Business Hours: means 9am to 5pm on Business Days. Agreement: means these terms and conditions together with the front page and any attached schedules and appendices Licence Fee: means the Subscription Licence detailed in the Investment Schedule on the front page and paid in year 1 of this Agreement. Maintenance / Subscription Fee: means the Subscription Licence paid in year 1 and in subsequent years of this Agreement detailed in the Investment Schedule on the front page. Consulting Fee: means the one-off fee for data conversion and consulting as detailed in the Investment Schedule on the front page. Release: means any release of the Software, which updates, improves, corrects faults, adds functionality or otherwise amends or upgrades the Software. Software: means the computer programs detailed in the Investment Schedule on the front page and all user documentation in respect of such programs and any Release which is acquired by the Client during the subsistence of this Agreement. Where the Investment Schedule refers to Symphony CRM then clauses 17,18,19,20,21,22,23,24,25,26,27 set out in Schedule A also apply. Term: means the term of the Agreement as specified on the front page attached to these terms and conditions
1.2 The headings in this licence do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
1.3 Unless the context otherwise requires:
1.3.1 references to the Supplier and the Client include their permitted successors and assigns;
1.3.2 references to statutory provisions include those statutory provisions as amended or re-enacted; and
1.3.3 references to any gender include all genders.
1.4 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the schedules or appendices, the provision in the body of this Agreement shall take precedence.
1.5 Words in the singular include the plural and in the plural include the singular
2 LICENCE AND WARRANTY
2.1 Copyright in the Software is vested in the Supplier and the Client shall not make copies thereof (except for its own archival purposes) without the express written consent of the Supplier. The licence granted under this Agreement is non-exclusive and non-transferable for the duration of this Agreement. This licence entitles the Client to the use the Software detailed in the Investment Schedule on the front page for processing purposes. The licence takes effect upon installation of the Software and continues for the Term or until this Agreement is terminated.
2.2 The Supplier warrants that to the best of its knowledge and belief that as at the date hereof there are no material defects or faults in the Software and further warrants that it will use reasonable endeavours to correct any such defects and faults of which it becomes aware. The express warranties contained in this Agreement are given in lieu of and to the exclusion of all other warranties, liabilities and conditions expressed or implied by statute or otherwise. The Supplier does not warrant that the Software will meet all of the Client’s requirements nor that the use of the Software will be uninterrupted or error free.
2.3 The Client’s sole remedy, and the Supplier’s sole liability in connection with the foregoing warranties shall be for the Supplier, at its sole option, to replace the software; or terminate this agreement and refund any Licence fees detailed in the Investment Schedule on the front page and paid hereunder for the software.
3 PROPRIETARY RIGHTS
3.1 The Client acknowledges that the Supplier retains all right, title and interest in the Software. The Client shall not be an owner of any copies of the Software, but, rather, is licensed pursuant to this Agreement to use such copies, and that title in and to all such copies, in whatever form, shall at all times rest in the Supplier.
4.1 It is in the contemplation of both parties that any unauthorised disclosure, use or copying of the Software and associated documentation may cause the Supplier serious financial loss. Accordingly the Client shall treat as strictly confidential the said material and not pass any of it to any other person outside the Client’s employment. The Client shall arrange proper and secure storage of the said material and shall protect the Software as if it were its own property.
4.2 Each party undertakes to keep and treat as confidential and not to disclose to any third party, any information relating to the business or trade secrets of the other nor make use of such information for any purpose whatsoever, except to those employees of the party who need to know for the purposes of the Agreement, provided that the foregoing obligation shall not extend to information which is:
4.2.1 in or comes into the public domain other than by breach of this Agreement;
4.2.2 in the possession of the one party prior to receipt from the other party;
4.2.3 received bona fide by one party from a third party not receiving the information directly or indirectly from the other party.
5 INDEMNITY AND LIABILITY
5.1 The Supplier shall indemnify the Client for all costs and damages awarded under any final judgement by a competent court of jurisdiction or agreed by the Supplier in final settlement for infringement of United Kingdom copyright in respect of the Software used within the scope of this Agreement, provided that:
5.1.1 the Client makes no statement prejudicial to the Supplier,
5.1.2 such infringement is not caused by or contributed to by acts of the Client other than the use of the Software in accordance with this Agreement.,
5.1.3 the Supplier is promptly notified, in writing, of the details of the claim,
5.1.4 the Client gives the Supplier all reasonable assistance in connection therewith, and
5.1.5 the Supplier shall have the opportunity of sole conduct and control of its settlement or compromise.
5.2 The Supplier shall have no liability for any claim of copyright, patent or registered design infringement based on (1) use of other than a current unaltered Release or (2) use or combination of the Software supplied with programs or data not supplied by the Supplier if such infringement could have been avoided had the combination not been made. The foregoing state the entire liability of the Supplier with respect to infringement of any copyrights patents or registered designs by the Software hereof or any parts thereof
5.3 The Supplier accepts liability for death or personal injury, which is due to the negligence of the Supplier or its employees.
5.4 The Supplier shall not in any circumstances be liable to the Client whether in Agreement, tort or otherwise for any special, consequential or indirect loss, damage, injury, cost or expense howsoever arising and of whatsoever nature including (without limitation) loss of profit, loss of Agreements, loss of operation time, loss of or corruption to data, loss of use of any equipment or process suffered or incurred by the Client.
5.5 Excluding the Supplier’s liability pursuant to Clauses 5.1 and 5.3 above, to which no limit applies, the Supplier’s total liability (whether in Agreement, tort or otherwise) under or in connection with this Agreement shall not in any circumstances exceed the total price paid by the Client to the Supplier in the 12 months preceding the cause of loss or £50,000 whichever is the lesser.
6.1 The charges shown in the Investment Schedule are payable within 30 days of invoice. The Supplier reserves the right to charge interest at 2% above National Westminster Bank Base Rate per month on overdue accounts.
6.2 In the event of termination of this Agreement by the Client during the Term there shall be no abatement or refund of any prepaid charges by the Supplier.
7.1 This Agreement may be terminated without prejudice to any existing rights in the following circumstances:
7.1.1 if the Client purports to assign this Agreement or becomes insolvent or is wound up or a receiver is appointed over any part of its business then the Supplier may terminate this Agreement forthwith by written notice.
7.1.2 if either party commits a material breach of the terms of this Agreement (including failure to pay) (and notwithstanding any previous waiver by either party of any previous breach) the other party shall request in writing the defaulting party to remedy any breach within a reasonable time. If such breach is not remedied within the specified time the other party shall have the right to terminate this Agreement forthwith by notice in writing.
7.2 Subject to earlier termination in accordance with clause 7.1, this Agreement terminates upon expiration of the Term.
8 SUPPORT AND SOFTWARE MAINTEANCE
8.1 Subject to payment of the Maintenance Fee in accordance with clause 8.2, the Supplier shall provide the Client with such support and software maintenance.
8.2 The Maintenance Fee shall be payable in advance by the Client to the Supplier within 30 days of receipt of the Supplier’s invoice.
8.3 The Client may elect to discontinue support and software maintenance by written notification delivered to the Supplier at least three months prior to the end of (i) the Initial Term of this Agreement; or (ii) any subsequent anniversary thereof.
8.4 The Supplier shall not increase the Maintenance Fee beyond three percent (3%) from one year to the next during the Term unless otherwise stipulated in Term and Payment Terms on the front page.
9.1 During the Term the Supplier shall provide the Client with all Releases. The contents of any Release shall be decided upon by the Supplier at its sole discretion and may include changes that correct defects as well as enhancements.
10 ERROR CORRECTIONS
10.1 During the Term, the Supplier shall use all reasonable efforts to correct any reproducible programming error in the Software attributable to the Supplier with a level of effort commensurate with the severity of the error. Upon identification of any programming error, the Client shall notify the Supplier of such error and shall provide sufficient information to locate such error. The Supplier shall only be responsible for correcting any errors that are attributable to the Supplier. Errors attributable to the Supplier shall be those that are reproducible by the Supplier on unmodified Software. Corrections for errors attributable to Client's modification of the Software will be billed additionally at the Supplier’s then standard consulting support rates. The Supplier agrees to pay the reasonable cost of travel and sustenance and all incidental expenses incurred by the Supplier when performing Software corrections, provided that said error or problem is responsibility of the Supplier and not the Client.
10.2 CLIENT ASSISTANCE
10.3 The Client agrees to provide the Supplier reasonable access to all necessary personnel during normal working hours to answer questions about any problems reported by Client regarding the Software. The Client also agrees to implement promptly all Releases and error corrections provided by the Supplier under this Agreement. The Client agrees that it shall ensure that suitably qualified personnel operate the Software and that their performance shall be properly overseen and managed accommodating the reasonable working practices suggested by the Supplier.
11 REMOTE ACCESS
11.1 The Client shall provide the Supplier with the necessary remote access (e.g. modem) to the Client's Designated Environment so that the Supplier may provide support and error correction by way of remote access. The Supplier does not guarantee performance of the error correction if the Client does not provide such remote access.
11.2 The Supplier shall provide the Client with the necessary remote access to the Supplier’s problem resolution database.
12 CONTACT PERSONNEL
12.1 The Client shall appoint two (2) individuals within the Client's organisation to serve as primary contacts between Client and the Supplier and to receive support from the Supplier’s support centre. Where possible all of the Client's support inquiries shall be initiated through these contacts.
13 INTEGRATION OF RELEASES
13.1 In the event that the Supplier has, at the Client’s request and expense, made modifications to the Software to meet the Client’s unique requirements, the Client acknowledges and agrees that:-
13.1.1 subsequent Releases provided hereunder for unmodified Software may not operate with the modified version of the Software being used by the Client, and
13.1.2 the Supplier shall have no obligation to make any modifications necessary to incorporate any of subsequent Releases into the Client’s version of the Software.
14.1 Subject to Clause 14.2 the Supplier is not required to provide any support relating to problems arising as a consequence of:
14.1.1 the Client's failure to implement all Releases to the Software which are issued under this Agreement;
14.1.2 any alterations or additions to the Software performed by parties other than the Supplier;
14.1.3 interconnection of the Software with other software products not supplied by the Supplier or not otherwise approved by the Supplier for such interconnection; or
14.1.4 use of the Software on a server which does not meet the minimum technical specification for the Designated Environment.
14.2 The Supplier is required to support:
14.2.1 The current production Release of the Software; and
14.2.2 The immediately prior Release of the Software – but only for a period of 6 months from the release of the current production Release.
14.3 Support for any earlier versions or for other problems not covered under this Agreement may be obtained at the Supplier’s then current standard consulting support rates.
15 HEALTH & SAFETY
15.1 The Client shall take all reasonable steps to ensure the health and safety of the Supplier's employees while they are at the Client's premises. The Supplier shall ensure that its employees comply with any reasonable rules and regulations of the Client when on the Client's premises.
16.1 The Client shall provide full and free access for the Supplier at all reasonable times to the Client’s equipment and any other material for which it is necessary for the Supplier to have access for the proper or better performance of its obligations and duties hereunder.
16.2 Neither party shall be under any liability to the other party for any delay or failure to perform any obligation hereunder (except a failure to pay) if the same is wholly or partly caused, whether directly or indirectly, by circumstances beyond its reasonable control.
16.3 The provisions terms and conditions of this Agreement shall prevail notwithstanding any variances with the provisions terms and conditions of any order or Agreement submitted by the Client in respect of the Computer Software or Maintenance.
16.4 All dates and times for delivery given by the Supplier are given in good faith but are estimates only. Time for performance shall not be of the essence of this Agreement.
16.5 The Laws of England & Wales shall govern this Agreement and both parties acknowledge the jurisdiction of the English Courts.
16.6 Both parties acknowledge that this Agreement constitutes the entire agreement between the Client and the Supplier in respect of the Software and the Maintenance. No representation or statement not expressly contained in this Agreement or incorporated herein by reference shall be binding upon the Supplier as a warranty or otherwise.
16.7 Any notice consent or other communication required to be given hereunder by either party to the other shall be made in writing and may be served by first class post to the address of the other set out above and shall be deemed to have been received forty eight hours from time of posting.
16.8 All payments costs charges or the like contained or referred to in this Agreement are exclusive of Value Added Tax which is payable in addition at the prevailing rates.
16.9 The Schedules form part of this Agreement.
16.10 The Supplier may assign, sub-Agreement or delegate all or any of its rights or obligations under this Agreement without the Client’s prior consent.
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