Integrity Terms and Conditions
Standard Terms & Conditions
“Acceptance” means acceptance of the Software in accordance with Clause 4;
“Agreement” means an agreement for the sale, installation, support and licensing of computer software and hardware consisting of these terms and conditions and the Schedule;
“Annual Licence Fee” means the recurring annual fee payable for use of the Software, as stated in the Schedule;
“Anniversary Date” means the anniversary of the Effective Date;
“Customer” means the commercial entity or person identified on the Agreement signature sheet;
“Documentation” means the manuals, if any, provided by Integrity for the Software;
“Effective Date” means the date set out as such on the Agreement signature sheet;
“Initial Licence Fee” means the initial fee for use of the Software payable as of the Effective Date, as stated in the Schedule;
“Initial Period” means FIVE years from the Effective Date;
“Integrity” means Integrity Software Systems Limited;
“Licence” means the licence to use the Software granted by Integrity under this Agreement;
“Licence Fees” means the Initial Licence Fee and Annual Licence Fee payable by the Customer to use the Software under the Licence;
“Personnel” means the personnel of Integrity Software Systems Limited and/or any of its sub-contractors;
“Schedule” means the schedule of this Agreement;
“Software” means any software and/or any part thereof as may be amended, updated or added to from time to time owned by Integrity and subject to the software disclaimers displayed on execution of the software programs;
“Support Services” means the support services to be provided by Integrity to the Customer where called for in the Schedule (if any);
“Support Fee” means the fee covering both the Annual Licence Fee for Software and the provision of the Support Services for the relevant 12 month period;
“System” means the Software, released on media to the Customer or loaded onto the Customer’s server;
“Third Party Software” means the software to be supported as part of this Agreement but which is under a licence agreement directly between a third party licensor and the Customer (if any).
These terms and conditions set out the basis upon which Integrity shall supply the Software, Documentation, and Third Party Software to, and perform services for, the Customer and thereafter provide Support Services as hereinafter described in respect of the items stated as being supported in the Schedule. The licence fees for use of the Software consist of: (i.) an Initial Licence Fee, and (ii.) an Annual Licence Fee (non payment of which will revoke the Licence, and which forms part of the Support Fee).
3. SOFTWARE, THIRD PARTY SOFTWARE AND EQUIPMENT
3.1 The Software and Third Party Software to be provided hereunder is as detailed in the Schedule. The Licence conditions for use of the Software are set out in Clause 7. The licences for Third Party Software will be supplied with the said Third Party Software.
3.2 Bespoke Software (if any) to be produced by Integrity is subject to an agreed specification and Integrity bespoke software terms and conditions. No source code is provided under this Agreement for any of the Software or bespoke Software. Without prejudice to the foregoing, any bespoke Software shall be covered as “Software” by the provisions of Clauses 7 and 10 unless expressly agreed otherwise in writing by Integrity.
3.3 Integrity warrants that for the period of six months from Acceptance, the Software shall perform substantially in accordance with the Documentation relating to it from time to time. The Customer’s sole remedy for breach of this warranty shall be the right to require Integrity to remedy the defect or failure of the Software as part of the Support Services. For the avoidance of doubt, this warranty shall not apply to the extent that any defect or failure is caused by any of the matters referred to in sub-clauses (i.) to (viii.) at the end of clause 12.3.
Upon signing this Agreement the Customer accepts that the Support Services may commence. Once the Software is shipped on media and accepted and or loaded onto the Customer’s server and or an activation code is issued to the Customer, Acceptance is completed and payment must be made to Integrity.
5. CUSTOMER RESPONSIBILITIES AND DATA
5.1 Subject always to Integrity complying with all reasonable security, safety and access requirements of the Customer, the Customer shall afford to Integrity’s Personnel reasonable access to the Customer’s site(s) for the purpose of Integrity’s performance under this Agreement.
5.2 The Customer understands and accepts that it will be necessary for the Customer to promptly supply information to Integrity and to give Integrity’s Personnel access to the Customer’s staff, equipment, data and items supported hereunder, in order to enable Integrity to perform its obligations hereunder. Integrity operates a call logging system and call centre and once logged, Customers will be issued with a log number and this is the only agreed mechanism between the parties to manage calls. No log number means Integrity has no obligation to respond.
5.3 For the purposes of Integrity providing the Support Services and during any period of such support: (i.) the Customer will appoint contact persons as the points of contact through which Integrity will co-ordinate support activities for the Customer. Only those contacts have authority to require support and assistance under this Agreement. The Customer shall ensure the contacts are sufficiently trained in the use of the System. (ii.) the Customer shall not during any period of Support Services by Integrity allow any supported item to be interfered with or modified or added to without the prior written agreement of Integrity. (iii.) it is the Customer’s responsibility to operate supported items in accordance with instructions issued by Integrity and/or the manufacturer and to retain sufficient trained staff to operate it in a proper manner. (iv.) Integrity requires the Customer to have an error-correcting fully operational modem or router at each site to enable Integrity to directly link to any CPU upon which any Software covered by this Agreement resides. Integrity will re-charge the call costs monthly in arrears. Integrity also recommends the use of an uninterruptible power supply (UPS) at each site. (v.) the Customer shall carry out regular back-ups and validation of data to removable media stored separately from the supported items and carry out other normal system housekeeping routines. (vi.) all connections to the internet or any telephone line will remain the Customer’s sole responsibility to ensure the correct charges and costs are being incurred. (vii.) updating all computers, accessing the internet or other networks with appropriate virus protection is SOLELY the Customer’s responsibility and Integrity will help with repairs strictly on a chargeable basis. (viii.) Integrity shall not be liable for any loss or damage sustained or incurred by the Customer or any third party through loss or spoiling of data resulting from any maintenance activity by Integrity required or performed under this Agreement. Integrity will use reasonable endeavours to put right any such loss of data or programs at its discretion free of charge. The Customer should maintain adequate back-ups of data to protect against loss or spoiling of data.
5.4 The Software provides functionality involving the Processing of Personal Data. It is the Customer’s responsibility as Data Controller to comply with the Data Protection Act 1998 (“the DPA”) in respect of personal data processed using the Software, to ensure that it has the appropriate consents (where necessary) from Data Subjects to the Processing of their Personal Data, and to notify where required to do so with the Information Commissioner as a Data Controller.
5.6 Where Integrity provides additional functionality which is made available to a Customer, or which a Customer subscribes to, the Customer must ensure that it has appropriate consents (where necessary) prior to making use of such additional functionality.
5.7 Where the Software is hosted by Integrity, Integrity acts as Data Processor in respect of the Customer’s Personal Data, and Integrity agrees (a) to act only on the instructions of the Customer in relation to such data; and (b) to comply with the Seventh Principle of the DPA in respect of such data.
5.8 The Customer undertakes and represents that all instructions given under clause 5.7(a) shall be lawful, and within the scope of the Software’s functionality.
5.9 The Customer shall fully and effectively indemnify Integrity against any cost, claim, damages, fine, penalty or expense arising out of the Customer’s failure to comply with the foregoing warranty and representation, or any failure of the Customer to comply with the DPA.
5.10 In order to provide and improve the Software, Support Services and associated services and to provide dashboard functionality (“Functions”), Integrity requires access to the Customer’s database, including personal data. Some of these services involve access to the database on an anonymised basis, and you instruct Integrity to access your database to generate anonymised data (which will no longer be Personal Data under the DPA). You acknowledge that the anonymised data may be used for providing Functions and for generating market information to be used by Integrity internally and externally. For example, Integrity may provide aggregated data to a Customer’s franchisor (where the Customer is a franchisee). The Customer expressly consents to such use as set out in this clause 5.10.
5.11 Capitalised words in clauses 5.4 to 5.11 which are not defined elsewhere in this Agreement are to be interpreted in accordance with the DPA.
6. THIRD PARTY SOFTWARE
In respect of Third Party Software, the intellectual property rights conditions, any indemnity relating thereto and restrictions and/or requirements relating to use and/or copying shall all be as set out in the appropriate direct licence agreement. It is a pre-requisite of use of Third Party Software that such licence agreements are complied with and where applicable signed and passed to the relevant licensor with a confirmation to Integrity. Save for Integrity’s obligations to supply and, where necessary, install such Third Party Software, the Customer acknowledges that Integrity shall have no other liability in respect thereof. Integrity cannot warrant that Third Party Software will meet the functionality which it claims to, and it is for the Customer to satisfy itself that Third Party Software meets its requirements. Third Party Software to be supported hereunder is as detailed in the Schedule. Integrity will not provide support for other Third Party Software. Changes, updates and releases thereto shall be covered by the licence agreement directly between the Customer and the relevant licensor and reference should be made thereto. It is the Customer’s obligation to have issued from any Third Party Software vendors all activation keys, passwords or access codes and in order to do so, ensure proper copies of licence agreements and activation keys are kept safe and available for inspection. Failure to produce this documentation could create the need to pay additional licence fees to the third party.
7. SOFTWARE - LICENCE CONDITIONS, TERMS
7.1 The Licence to use Software granted by Integrity hereunder becomes effective from the Effective Date subject to the Customer paying in full the Initial Licence Fee and Annual Licence Fee (the latter as part of the Support Fee). The Agreement and the Licence shall automatically continue from year to year thereafter until or unless terminated in accordance with the provisions of this Agreement and, in any event, for a minimum of the Initial Period. Continuance of use of the Software is dependent upon the Customer continuing to pay the Support Fee and upon compliance with the terms and conditions set out herein.
7.2 Subject to sub-clause 7.1 and the other provisions of this Agreement, Integrity hereby grants to the Customer a non-exclusive, non-transferable licence to use the Software on the CPU of their choice for up to the maximum number of users and for the site(s) set out in the Schedule. The Customer shall not permit any third party to use or have access to the Software or the Documentation supplied therewith. Use of the Software and Documentation is restricted to use for the Customer’s own internal purposes, except that: (i.) the Customer may not reverse engineer, disassemble, translate or in any way decode the Software except as expressly permitted by law (and where such action is permitted by law shall notify Integrity prior to doing so); (ii.) the Customer undertakes not to modify the whole or any part of the Software or Documentation in any way whatsoever nor to permit the whole or any part thereof to be combined with or become incorporated in any other programs without Integrity’s prior written consent.
7.3 The Customer may make such copies of the Software as is reasonably necessary for operational security and use. Such copies and the media on which they are stored shall be the property of Integrity and its licensors and all media must be kept safe by the Customer.
8. TITLE AND RISK
Title in any items supplied by Integrity under this Agreement shall remain with Integrity until such time as the Customer has paid the Initial Licence Fee in full. The Customer shall hold the items on a fiduciary basis and as bailee for Integrity in such a way that such items are identifiable as belonging to Integrity and, if the Customer fails to pay Integrity as owner, shall be entitled to demand return of the item. If payment is not made and/or the Customer becomes insolvent or a receiver is appointed before payment is made, Integrity is irrevocably authorised to enter forthwith the Customer’s site(s) for the sole purpose of repossessing the items still owned by Integrity.
9. PRICING AND PAYMENTS
9.1 The Licence Fees and any other fees and charges arising under this Agreement shall be payable as set out herein or in the Schedule. Payment shall be made strictly in accordance therewith.
9.2 Payment terms: fifty percent of the Initial Licence Fee is payable on signing of this Agreement and the balance is due on Acceptance of the Software. Any variation to these standard terms will be noted on the Schedule and signed by both parties.
9.3 The Customer shall pay to Integrity the Support Fee and the charges arising hereunder. Payment of the first year’s Support Fee shall be made on or before Acceptance and initially cover a period of 12 months. Thereafter Integrity shall be entitled to issue invoices up to thirty days prior to the commencement of the next Anniversary Date, when the payment will be due. Payments by Direct Debit will allow the annual amount to be paid quarterly or monthly subject to a finance and admin surcharge and invoices will be raised to suit Integrity’s systems. Such arrangement must be agreed at between the parties prior to Acceptance.
9.4 All amounts in the Schedule or quoted by Integrity are exclusive of VAT unless expressly stated otherwise.
9.5 The Customer will bear the cost of all travelling time and expenses of Integrity’s Personnel attending site(s) based on Integrity’s rates prevailing at the time. The mileage rate shall be the average AA rate. Flights, rail fares and overnight accommodation will be re-charged net. Such costs will be additional to the Initial Licence Fee and Support Fee unless expressly stated otherwise in the Schedule.
9.6 Training days booked by the Customer and subsequently cancelled by the Customer without a clear fourteen days notice period provided in writing to Integrity will be charged for in full. Days are supplied on an “as consumed basis” with Integrity making no commitment as to what can be achieved in the day, other than that the Integrity Personnel supplied will have the requisite skills. All days referred to on this Agreement must be utilised within 12 months of the Effective Date of the Agreement.
9.7 Integrity reserves the right to increase the Support Fee but only with effect from the first day or the next annual period of support. However, Integrity will not increase the rate beyond that reached by applying 10% and adding? the Retail Price Index applied cumulatively on the full product price of support from the Effective Date (as amended for items added later) to the date in question, except that in the event that an item may become uneconomic to support on such basis or a site becomes the subject of an extraordinary level of support, Integrity reserves the right at its option either to remove the item or site concerned from the supported list on the Schedule or to agree with the Customer, if possible, a mutually acceptable charge.
9.8 If any sum payable under this Agreement is in arrears then in addition to, and without prejudice to, any other remedies which may be available, Integrity reserves the right to charge interest on any and all such sums on a day to day basis from the original due date until paid at the maximum rate permitted by the Late Payment of Commercial Debts (Interest) Act 1998. Integrity reserves the right to suspend its contractual obligations under this Agreement until such payment is made.
9.9 If for any reason arrangements for financing this Agreement by the Customer through a third party shall be frustrated the terms and conditions hereof shall remain in full force and effect as between the Customer and Integrity.
10. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY FOR SOFTWARE
10.1 The copyright and all other intellectual property rights of whatever nature in the Software and Documentation and in any modifications or changes thereto made under this Agreement are and shall remain the property of Integrity and/or its licensors, and any rights in any other work prepared or carried out by Integrity hereunder shall vest in Integrity, on creation thereof. The Customer shall notify Integrity as soon as possible if it becomes aware of any unauthorised use of the whole or any part thereof by any third party.
10.2 Integrity warrants that insofar as it is aware Integrity and/or its licensors are the owner of the copyright and all other intellectual property rights in the Software and Documentation and/or are duly authorised to enter into this Agreement. In respect of Software, Integrity hereby indemnifies the Customer against any claim that the normal use or possession of the Software infringes the copyright of any third party provided Integrity is given immediate and complete control of any such claim, and that the Customer gives Integrity such assistance as Integrity may reasonably require to settle or oppose any such claim provided that Integrity shall meet the Customer’s reasonable costs of so doing. Integrity reserves the right to replace or change all or any part of the Software in order to avoid infringement of any third party rights. Integrity shall however at all times endeavour to ensure that the Customer is left with fully operational and functionally equivalent Software.
11.1 The Customer may terminate this Agreement (including the Licence) without compensation to Integrity either at the end of the Initial Period or at any Anniversary Date once the Initial Period has ended by giving at least 90 days’ notice in writing to Integrity effective at the end of the Initial Period or at the Anniversary Date once the Initial Period has ended. Alternatively, the Customer may exercise an option to terminate this Agreement during the Initial Period by giving 90 days’ notice to Integrity and paying Integrity an early termination fee consisting of: (i.) the balance of the Initial Licence Fee (if any); and (ii.) the total amount of Annual Licence Fees payable to Integrity in respect of the unexpired portion of the Initial Period (after expiry of such termination notice) (including any price increases as detailed in 9.7), less a discount of 1% of such total amount for each complete unexpired period of three months remaining in the Initial Period, which discount represents the benefit to Integrity of receiving accelerated payment and the potential cost savings to Integrity in ceasing to be obliged to provide Support Services to the Customer. Any repudiation or purported termination of this Agreement by the Customer without an express right to do so under this Agreement shall be deemed to be an exercise of the above option by the Customer which gives rise to liability to pay such early termination fee. Termination of third party licence agreements is governed as provided therein.
11.2 Integrity may terminate this Agreement (including the Licence) forthwith on given notice to the Customer if: (i.) the Customer commits any material breach of any term of this Agreement and, in the case of a breach capable of being remedied fails to do so within thirty days after receipt of a request in writing from Integrity to remedy the breach; and/or (ii.) the Customer fails to pay the Support Fee (which includes the Annual Licence Fee for Software) when due under this Agreement.
11.3 This Agreement may be terminated by either party with immediate effect by written notice to the other if the other shall become bankrupt or insolvent or enter into any scheme of administration with its creditors or enter into receivership or liquidation, take any action for voluntary winding up other than for the purpose of a solvent reconstruction or amalgamation, or cease to carry on business. Termination of this Agreement under this clause by Integrity, but not by the Customer, shall also terminate the Licence.
11.4 Save as provided in 11.2 and 11.3 the Licence may not be terminated by Integrity, unless it issues an end of life on the Software, which cannot be during the Initial Period.
11.5 The Customer may cancel this Agreement before Acceptance has taken place, in whole or in part, by paying to Integrity by way of liquidated damages (or by forfeiting as a deposit) 50% of the Initial Licence Fee relating to the whole or part of the System which the Customer wishes to cancel. (If the Customer has already paid 50% of such Initial Licence Fee to Integrity on signing this Agreement, Integrity shall retain that amount and no further amount shall be due from the Customer in connection with such cancellation. If the Customer has paid less than 50% of such Initial Licence Fee on signing this Agreement, the Customer must pay the difference between the amount paid and 50%.)
11.6 Upon termination of the Licence, howsoever occasioned, the Customer shall return the Software to Integrity within 7 days of the termination date and destroy all copies thereof. This provision shall survive any termination whether of the Licence or of the Agreement as a whole.
12. DESCRIPTION OF SUPPORT SERVICES
12.1. Unless otherwise expressly agreed by Integrity, Support Services will be provided during normal UK business hours of 9.00 a.m. to 5.00 p.m. Monday to Friday, excluding bank holidays. Premier services will have noted on the Schedule their extended times and service.
12.2. Integrity warrants that it shall use all reasonable endeavours to carry out the Support Services described herein in a professional manner and using reasonable skill and care and shall at all times use reasonable endeavours to maintain the items supported in good working order and to supply all component spares necessary for supported equipment (if any). The periodic updates provided under support for the Software may include legislative updates the scope of which can vary considerably. Where major legislative changes take place it is expressly provided that Integrity reserves the right to make an additional charge which shall be spread evenly over all its customers for the Software in order to cover the updates dealing with such legislative changes. Such updates are deemed to be outside of the Support Fee cost.
12.3. Supported Software: Integrity will use all reasonable endeavours to respond to any request by the Customer within eight business hours of receiving notification of such need from the Customer. Error correction is provided on a reasonable efforts basis, and Integrity cannot guarantee to correct any error within any given timescale. The Customer shall endeavour to provide written notification and appropriate examples supporting any error found. If major errors are found in Software supported hereunder then Integrity will supply any correction of same by first class post on disc, tape or downloads (as appropriate). As part of the Support Services Integrity shall provide updates and releases from time to time to the Software supported during the term of this Agreement. It is the Customer’s responsibility to install corrections, updates and releases to the Software and for ensuring that their staff have the capability of doing so. Integrity shall have the right to make additional charges for services, which are required due to the Customer failing to install such items correctly. Where Integrity has to carry out site visits for support, it reserves the right to charge over and above the annual Support Fee.
Integrity reserves the right not to deal with, or to make additional charges for, reported errors in such Software which: (i.) are the result of failure of equipment or other software not covered by this Agreement; (ii.) are due to faults in mains electrical supplies or operator error; (iii.) are, or could be reasonably construed as, a lack of knowledge of the Software; (iv.) are caused by air conditioning, humidity or other environmental conditions; (v.) are caused by the accident, neglect, misuse or default of the Customer or any third party; (vi.) are due to acts of God, war, acts of violence or any similar occurrence; (vii.) result from any attempt by any person, other than Integrity, to modify or maintain the Software or equipment otherwise than in the case of only trained Customer staff carrying out normal System functions; (viii.) are caused by cable or connector malfunctions, including items not plugged in or cables not connected;
12.4. Additional Services
The Support Fee does not include, and additional charges shall be made for: (i.) repair or support in respect of any data corruption and in respect of Software support arising from such data corruption; (ii.) all costs for any calls made to fit supplies; (iii.) repair or support as a result of the Customer allowing access by a third party to a supported item where Integrity has agreed to perform corrective activities and not to terminate the Agreement and not to delete the item concerned from the list of items being supported. (iv.) providing new or updated versions of an operating system of an item of hardware; (vi.) site visits carried out by Integrity in respect of support outside that covered by the Support Fee. These visits are carried out at Integrity’s discretion and may be chargeable at Integrity’s current daily rate for such service and subject to clause 9.5.
12.5. Support Services shall commence on the Effective Date and shall be for the Initial Period and thereafter annually as set out in this Agreement. Integrity will some time before the end of the Initial Period offer a contract to cover a new Initial Period, the agreement of which will be entirely at the discretion of each party.
12.6 Integrity shall have no liability for any delay of failure in the performance of the Support Services, or any other of its obligations under this Agreement, to the extent that such delay or failure is caused by any event or circumstance beyond its reasonable control.
12.7. This Agreement covers the commercial aspects, the Initial Period and the annual amount payable. Any hosting services supplied under this Agreement are subject to a separate Service Level Agreement (SLA) which covers details of the service to be supplied. Failure to pay the hosting charge will suspend the service.
13.1 Nothing in this Agreement shall limit or exclude a party’s liability for personal injury or death to any person caused by its negligent acts or omissions or those of its employees, servants or agents. Subject to the foregoing, Integrity’s liability and/or that of its employees servants or agents under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall: (i) until Acceptance of the System be limited to the Initial Licence Fee; and (ii) after Acceptance and during any period of annual Support Services, be limited to the Support Fee in the year of this Agreement in which such liability claim arises.
13.2 Save as expressly provided in this Agreement regarding liability for death or personal injury, in no event shall either party be liable to the other under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, for any incidental, special, indirect or consequential loss of whatever nature, or any loss of use and/or loss of profits and/or loss of business or goodwill and/or loss or spoiling of data, save that the Customer shall be fully liable (and shall indemnify Integrity for and against) any infringement by the Customer or its personnel or contractors of Integrity’s and/or its licensors intellectual property rights.
14.1 The failure by either party to enforce at any time any provision of this Agreement shall not affect its rights to later require complete performance by the other party hereto, nor shall any waiver of a breach of a provision be taken or held to affect its rights in the event of any subsequent or additional breach of the same or any other provision.
14.2 The Customer shall neither assign this Agreement nor part with any rights or obligations hereunder in any way whatsoever whether in whole or in part without the prior written agreement of Integrity. Integrity shall be entitled to sub-contract, sub-let or assign the whole or any part of this Agreement provided that such shall not adversely affect the Customer’s rights hereunder.
14.3 Except as expressly provided in this Agreement no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, merchantability or fitness for purpose of the items supplied or any part thereof shall be assumed by Integrity, and except as expressly provided for in this Agreement all such warranties, conditions, undertakings and terms are hereby excluded to the maximum extent permitted by law.
14.4 This Agreement constitutes the entire agreement between the parties hereto. No addition or modification to this Agreement shall be binding on either party unless made in accordance with 14.5.
14.5 This Agreement may only be amended by written agreement referenced hereto and signed by the duly authorised representatives of both parties. Any notice of termination, breach or other notice of a legal nature required to be given to either party under this Agreement shall be given by first class recorded delivery post to the appropriate address of the party concerned set out in this Agreement.
14.6 The construction, validity and performance of this Agreement shall be governed by English law and the parties hereby submit to exclusive jurisdiction of the English Courts.
© Integrity Software Systems Limited December 2011
For and on behalf of the Customer
For and on behalf of Integrity Software