Terms & Conditions
DATED
(1) INTEGRITY SOFTWARE SYSTEMS LTD
and
(2) [NAME OF CUSTOMER]
AGREEMENT
TABLE OF CONTENTS
This AGREEMENT is made on [Day] [Month] [Year]
BETWEEN:
(1) INTEGRITY SOFTWARE SYSTEMS LIMITED (company number 03410598) whose registered office is at Two Snow Hill, 11th Floor, Birmingham, B4 6WR ("Integrity"); and
(2) [NAME OF CUSTOMER] a company registered in [Country of Registration] under number [Company Registration Number] whose registered office is at [insert Address] (the “Customer”).
WHEREAS: The Customer wishes to procure certain software from Integrity together with associated implementation and support services. The Parties have agreed that Integrity shall supply such software and services in accordance with the terms and conditions of this Agreement.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptance Date” means the date on which the Licensed Programs and/or Professional Services are accepted (or deemed to be accepted) by the Customer pursuant to Clause 7;
"Anniversary Date" means the end of each 12-month period following the Commencement Date;
“Announcement” has the meaning attributed to it in Clause 22;
"Annual License Fee" means the annual fee paid for the continued use of the software as detailed in the Sales Schedule for the first year of the Term and as increased under clause 12.4 for subsequent years of the Agreement;
“Business Day” means any day which is not a Saturday, a Sunday or a bank or public holiday in England;
“Commencement Date” means the date of this Agreement;
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, whether prior to, on or after the date of this Agreement and whether or not the information is expressly stated to be confidential or marked as such). This will include, but not be limited to, information contained in the Licensed Program Materials;
“Configuration” means the configuration or arrangement of variable functional units within the Licensed Programs to meet Customer use requirements;
“Deposit” the non-refundable amount stated in the Schedule payable on the date of this Agreement
“Error” means a failure of the Licensed Program to substantially conform to the Program Documentation;
"Fees" means the fees charged or chargeable by Integrity to the Customer for the License and the Services provided under this Agreement;
“Group Company” means a Party, its ultimate holding company and all subsidiaries of its ultimate holding company, the definitions of "holding company" and "subsidiary" being those set out in sections 1159 of the Companies Act 2006 and a company will be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c) of the Companies Act 2006, as a member of another company even if its shares in that other company are registered in the name of (i) another person (or its nominee), whether by way of security or in connection with the taking of security, or (ii) its nominee (and “Group” shall be construed accordingly);
“Integrity Personnel” means the officers, employees, agents and representatives of the Integrity Group Companies and their subcontractors providing the Services in accordance with this Agreement;
"Initial License Fee" being the intial payment for the use of the software as detailed in the Sales Schedule;
“Initial Term” means a period of five years from the Commencement Date;
“Intellectual Property Rights” means (a) any and all rights in any copyrights, patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights), trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, database rights, know-how, proprietary rights, trade secrets, rights in designs and inventions; (b) rights under licenses, consents, orders, statutes or otherwise in relation to a right in paragraph (a); (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and (d) the right to sue for past infringements of any of the foregoing rights;
“Licence” means a licence granted pursuant to Clause 4;
“Licensed Program(s)” means the computer software programs of Integrity in object form, along with Configuration;
“Licensed Program Materials” means, collectively, the Licensed Programs and the Program Documentation;
“Linked Materials” means web pages, other software, systems or applications to which the Licensed Program is linked or facilitates links, including any information which they contain or make available;
“Location(s)” means the location(s) where the Licensed Programs may be installed and/or used as specified in the Agreement;
“Operating Environment” means the Customer’s equipment on which the Licensed Programs will be used;
“Permitted Use” means the purpose for which the Customer is permitted to Use the Licensed Program Materials, specifically the processing of transactional materials for the purpose of the customer’s business;
“Personal Data” has the meaning given to it under the Data Protection Act 2018;
“Program Documentation” means the operating manuals, user instructions, technical literature and all other related materials supplied to the Customer by Integrity for aiding the use and application of the Licensed Programs;
“Professional Services” means any IT consultancy, training or other services to be provided by Integrity to the Customer in connection with the Licensed Programs;
“Project” means the project in respect of which the Professional Services and any associated other services are to be provided by Integrity;
“Project IPR” means all Intellectual Property Rights which come into existence as a result of the Project;
“Services” means the Support Services, the Professional Services and such other ancillary services provided by Integrity to the Customer in connection with this Agreement;
“Standard Day Rate” as defined in the Sales schedule
“Supported Environment Requirements” means the specification requirements of the operating environment as issued or published by Integrity from time to time;
“Support Services” means such support services to be provided by Integrity in respect of the Licensed Programs;
"Term" has the meaning specified in Clause 2 below;
“Third Party Software” means the software which is not licensed through Integrity which may be provided as part of the Licensed Program Materials.
“Third Party Software Licensor” means the licensor of the relevant Third Party Software;
“Working Hours” means the hours of the day during which Support Services will be provided to the Customer.
The headings used in this Agreement are for convenience only and will have no effect upon the interpretation of this Agreement. Words imparting the singular number will include the plural and vice versa. References to any gender will include the other gender.
2 TERM
This Agreement shall commence on the Commencement Date and shall continue for the Initial Term, after which it shall automatically renew for subsequent twelve (12) month periods from the end of the Initial Term and annually thereafter unless and until terminated earlier in accordance with this Agreement (“Term”).
3 OVERVIEW
This Agreement specifies the terms and conditions under which Integrity shall grant Licence(s) and/or supply Services to the Customer.
4 LICENSED PROGRAM MATERIALS
4.1 Grant of License
4.1.1 Integrity shall, on and subject to the terms of this Agreement and in consideration of payment of the Fees in Clause 12.1, grant the Customer a non-exclusive, non-transferable Licence to Use the Licensed Program Materials for the Permitted Use by the Customer, for the Term.
4.1.2 Where a Licence is granted, the Customer may:
a) use the Licensed Program Materials for its own business purposes only and not for any other purposes. For the avoidance of doubt and without limitation, the Customer’s own business purposes shall not include Use of the Licensed Program Materials for the purposes of processing third party data nor for the purposes of offering them or any part of them as, or in connection with, a service or product to be provided to third parties (whether the Customer’s customers or suppliers or otherwise) nor for providing accountancy services or bureau services to third parties; and
b) use the Licensed Program Materials and permit Use of the Licensed Program Materials by its employees or properly authorised contractors, provided that such Use is at all times made in accordance with the express terms of this Agreement and not further or otherwise.
4.1.3 No licence shall be granted in respect of any programs or materials of Integrity other than the Licensed Program Materials unless expressly agreed in writing by Integrity.
4.2 Restrictions on Copying
Where a Licence is granted, the Customer may make only so many copies of the Licensed Programs as are reasonably necessary for operational security and use and no more than two without the prior written consent of Integrity. Such copies and the media on which they are provided will remain the property of Integrity and the Customer shall ensure that all such copies bear Integrity's proprietary notice. The Licence will apply to all such copies as it applies to the Licensed Programs.
4.3 Restrictions on Alterations
4.3.1 The Customer undertakes not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Licensed Program Materials in any manner without Integrity's prior written consent.
4.3.2 The Customer undertakes not to alter or modify the whole or any part of the Licensed Program Materials in any way whatsoever, nor to permit the whole or any part of the Licensed Programs to be combined with, or become incorporated in, any other programs.
4.4 Security and Control
The Customer shall:
4.4.1 effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person;
4.4.2 retain the Licensed Program Materials and all copies thereof under the Customer's effective control; and
4.4.3 comply with all reasonable requests or instructions of Integrity with regard to the Licence and Use of the Licensed Program Materials.
5 SUPPORT SERVICES
During the Term and subject to the Customer complying with its obligations under this Agreement, Integrity shall supply the Support Services in accordance with the terms of this Agreement.
6 PROFESSIONAL SERVICES
6.1 Integrity shall supply the Professional Services in accordance with the terms of this Agreement.
6.2 In supplying Professional Services, Integrity shall take and shall instruct the Integrity Personnel to take all reasonable care whilst on the Customer’s premises for the safety of the Customer’s property and employees and comply with the Customer’s policies as notified to Integrity in writing from time to time.
6.3 Service Days and Rates
6.3.1 A standard Service day for the supply of Professional Services by Integrity Personnel is 7 hours between the hours of 9:30am and 4:30pm on any Business Day (a “Service Day”). The Integrity Personnel may also take a lunch break of up to 1 hour during these hours which will not be charged.
6.3.2 A Service Day will be charged at the Standard Day Rate. If the Customer requests or authorises work to be carried out outside of the Service Day, work carried out between the hours of 6:00pm and midnight on a Business Day will be charged at 1.5 times the Standard Day Rate and work carried out at all other times, including public holidays, will be charged at twice the Standard Day Rate.
6.3.3 Travelling time from Integrity’s offices in Lincoln, England or such other location as agreed in writing of up to 2 hours in a single day will not be charged. Travelling time in excess of this will be classed as worked time and will be charged at the applicable rate.
6.3.4 Integrity Personnel may work more than 7.5 chargeable hours on a single day and/or more than 37.5 chargeable hours during a single week. The total chargeable hours will be divided by 7.5 to give the total Service Days and this will be rounded up to the nearest 0.1 Service Days to give the total Service Days to be charged, at the rates determined in accordance with Clause 6.3.2.
6.3.5 Any Service Day(s) not billed in advance shall be invoiced monthly in arrears, unless other payment terms have been agreed and detailed on the Sales Schedule.
6.4 Project Estimates
6.4.1 Integrity shall, in relation to a Project, provide an estimate of the number of Service Days required to complete it, which shall be set out in the Agreement. Integrity shall notify the Customer promptly upon becoming aware that the estimate has been or is likely to be exceeded, and shall provide a revised estimate and seek additional order cover from the Customer as soon as practicable.
6.4.2 Fees for Professional Services are calculated on a time and materials basis and any estimates of Service Days required to complete the Project are for guidance only and do not represent a commitment to a fixed Fee for such Professional Services.
6.4.3 The Customer acknowledges that any Project estimates provided by Integrity are calculated on the basis of information and requirements provided or specified by the Customer. Failure to provide or specify such information or requirements accurately and promptly may result in Project estimates being exceeded and additional Fees being charged.
7 TESTING AND ACCEPTANCE
7.1 Acceptance of the Licensed Program(s) will occur upon installation of the Software on the Customer's server.
7.2 If any or all of the Licensed Program(s) is bespoke in nature the details of this will be set out in the Schedule and the following terms shall apply.
7.2.1 The Customer shall, within fourteen (14) days of receipt of bespoke Licensed Program(s), conduct such tests as are necessary to ensure that it works in accordance with the agreed specification, and will give Integrity notification, in writing, of any defects which the Customer believes exists in the bespoke Licensed Program(s) which prevent it from performing in accordance with the specification. In the event that the bespoke Licensed Program(s)does not materially comply with the agreed specification, Integrity shall modify the bespoke Licensed Program(s)to ensure that it does, and the Customer shall repeat the tests as are necessary to demonstrate such compliance.
7.2.2 The bespoke Licensed Program(s)shall be deemed to have been fully accepted by the Customer if either Integrity does not receive notice of defects in writing within the fourteen (14) day period or the Customer uses the bespoke Licensed Program(s)in a live environment.
7.2.3 Where the development costs (which shall be calculated by reference to the total time costs incurred by Integrity staff at their prevailing hourly rates) for the bespoke Licensed Program(s) exceed the sum of £5,000.00 (Five Thousand pounds only), an Annual Licence Fee calculated in the first year, as 20% of the total development costs will be charged. In subsequent years the Annual Licence Fee will be indexed by the same rate as is applied to the overall Annual Licence Fee in accordance with clause 12.4 below.
8 INTEGRITY WARRANTIES
8.1 In relation to the Services, Integrity warrants that:
8.1.1 it has all rights and authorities required to perform the Services pursuant to this Agreement;
8.1.2 it shall carry out the Services in a professional and workmanlike manner with reasonable care and skill, and in so doing shall attain standards of care and skill commensurate with those currently prevailing in the software industry;
8.1.3 Integrity Personnel providing Services to the Customer shall possess suitable skills and experience for the performance of the tasks to which they are allocated as part of the Services.
8.2 In relation to the Licence, Integrity warrants that:
8.2.1 it has all rights, title and interest required to grant or procure the grant of the Licence on the terms of this Agreement;
8.2.2 it will take all reasonable precautions to ensure that no known viruses, spyware or other malware for which detection and antidote software is generally available are coded or introduced into the Licensed Programs;
8.2.3 The Licensed Programs will substantially confirm to and perform in accordance with the Program Documentation
8.3 For the avoidance of doubt, Integrity does not warrant that all Errors can and/or will be corrected. Integrity shall use its reasonable endeavours to either correct Errors so long as the Errors are replicable by Integrity, or to provide a Workaround.
8.4 Integrity’s warranties and obligations in this Agreement are subject to the Customer complying with its obligations under the terms of this Agreement, and are also subject to the limits and exclusions of liability set out in Clause 18. Without limitation, Integrity shall have no liability under this Agreement to the extent that any defect in the Licensed Program Materials or delay or failure to provide Services arose or was exacerbated as a result of:
8.4.1 the Licensed Program having been altered by the Customer without Integrity’s prior written consent, or the Customer’s unauthorised or incorrect use, operation or corruption of the Licensed Programs;
8.4.2 the Operating Environment failing to comply with the Supported Environment Requirements, or any defect or malfunction of the Operating Environment or the Customer’s other equipment, systems or environments which support the Operating Environment; or
8.4.3 the Customer’s failure to operate a Supported Release of the Licensed Program.
8.5 Notwithstanding Clause 8.2.3 and to the extent permitted by applicable law, Integrity:
8.5.1 makes no warranty that the Licensed Programs are error free or that the use thereof will be uninterrupted and the Customer acknowledges and agrees that the existence of such errors will not constitute a breach of this Agreement; and
8.5.2 disclaims all other warranties with respect to the Licensed Programs, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result.
9 CUSTOMER WARRANTIES
9.1 The Customer warrants that:
9.1.1 it has all rights and authorities required to enter into and perform its obligations set out in this Agreement;
9.1.2 it has not relied on any representation, warranty, promise or other statement made by Integrity or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by Integrity which are only intended to convey a general idea of the products and services mentioned, and in no circumstance are or shall be deemed to be incorporated in to this Agreement;
9.1.3 it will comply in all material respects with all applicable laws, regulations and codes of conduct (whether statutory or otherwise) and that all licenses, permissions and consents required for carrying on its business have been obtained and are in full force and effect.
9.1.4 The Customer acknowledges and agrees that it shall be data controller of all Personal Data that is processed by it within the Licenced Programme Material’s environment licensed by Integrity. The parties agree that Integrity shall be data processor only in respect of the data identified within Integrity’s data processing policy, a copy of which is at: https://www.integrity-software.net/data-policy/. The Customer agrees to be bound by the Integrity data processing policy which may only be amended by mutual agreement of the parties.
10 CUSTOMER OBLIGATIONS
10.1 Without limitation, the Customer shall at all times:
10.1.1 provide sufficient information and details of its requirements in relation to any Project to allow Integrity to identify the Licence(s) and Service(s) required;
10.1.2 comply with the terms and conditions of the Licence set out in Clause 4;
10.1.3 ensure the Operating Environment conforms with the Supported Environment Requirements at all times, and provide reasonable notice to Integrity of its intention to change the Operating Environment or any other material dependencies;
10.1.4 operate the Licensed Programs and maintain data and any relevant databases in accordance with the Program Documentation;
10.1.5 install and operate Supported Releases of the Licensed Program at all times;
10.1.6 promptly report any Error to Integrity and provide such assistance to Integrity as may be reasonably necessary in relation to the investigation and resolution of any Error;
10.1.7 where reasonably required by Integrity to fulfil its obligations pursuant to this Agreement, grant, by arrangement and subject to the Customer’s applicable privacy and security policies, reasonable access to the Customer’s premises and/or Operating Environment;
10.1.8 comply with any data protection and privacy laws applicable to it or Integrity including without limitation, the Data Protection Act 2018 and General Data Protection Regulation where this applies to a party;
10.1.9 make available to Integrity such resources, information and data as may be reasonably requested by Integrity and as are necessary for successfully delivering the Services; and
10.1.10 take all reasonable precautions to ensure the health and safety of the Integrity Personnel while they are on the Customer’s premises subject to the Integrity Personnel complying with the Customer’s health and safety policies.
10.2 The Customer will fully indemnify and hold harmless Integrity, its employees, officers, agents, affiliates and representatives in respect of any third party claim made against Integrity to the extent that such claim arises out of or in connection with any acts or omissions taken or made by Integrity in accordance with specific instructions from the Customer, unless such acts or omissions were the result of the negligence or wilful default of Integrity or the Integrity Personnel.
11 CHANGE CONTROL
11.1 In the event that either Party wishes to make a change to this Agreement that has or may have an impact on the Fees, Licence, extent or scope of Services (a “Change”), such Party shall notify the other Party of the requested Change in writing.
11.2 If either party requests a Change, Integrity shall, within a reasonable time, provide a written estimate to the Customer of:
11.2.1 the likely time required to implement the Change;
11.2.2 any necessary variations to the Fees as a result of the Change;
11.2.3 the likely effect of the Change on the Licence and/or the Services; and
11.2.4 any other impact of the Change on this Agreement.
11.3 If the Customer wishes Integrity to proceed with a Change, Integrity has no obligation to do so unless and until the Parties have agreed the necessary variations to the Fees, the Services and any other relevant terms of this Agreement to take account of the Change and this Agreement has been varied in accordance with Clause 21.
11.4 Notwithstanding Clause 11.3, Integrity may, from time to time and without notice, change the Licence and/or the Services in order to comply with any applicable statutory requirements, or if required in the normal course of product development.
11.5 Integrity undertakes to issue standard updated versions of the Software incorporating changes in statutory requirements and/or error corrections and/or improvements.
11.6 Integrity will be the sole arbiter of the number, content and release date of the Software update.
11.7 Integrity reserves the right to charge an additional fee for any and/or each such update necessary due to any reason out of the control of the parties (including but not limited to changes in legislation, industry standards, accounting standards) which requires a significant level of programming resource.
12 FEES AND PAYMENT
12.1 Integrity shall invoice and the Customer shall pay the Fees as follows:
12.1.1 Initial Licence Fee, payable (i) 50% on the Commencement Date; and (ii) 50% on the Acceptance Date;
12.1.2 Annual Licence Fee for the first year of the Term shall be paid in full in advance on the Commencement Date
12.1.3 Annual Licence Fee for each subsequent year of the Term shall be paid in full within thirty (30) days of receipt of Integrity’s Invoice for this fee. Invoices in respect of such Annual Licence Fees are issued approximately forty-five (45) days in advance of the Anniversary Date
Without prejudice to the Customer’s obligations to pay the Initial Licence Fee and the Annual Licence Fee on the dates set out in this clause 12.1, those fees shall accrue from day to day. No refund of either the Initial Licence Fee or the Annual Licence Fee shall be made for any reason.
12.2 The Fees and other charges payable in connection with this Agreement are exclusive of any applicable value added or sales tax which will be payable by the Customer at the rate and in the manner prescribed by law against submission of a valid tax invoice.
12.3 Save in the case of fraud or manifest error, the Customer shall pay in full all invoices submitted by Integrity within 30 days after the receipt by the Customer of such invoice, without any set-off, deductions or witholding. Time is of the essence in respect of any payments due under this agreement.
12.4 Integrity shall be entitled to increase the Annual Licence Fee on each Anniversary Date by no more than the Retail Price Index plus 10%, without the need to notify the Customer.
12.5 Where the Customer fails to pay in full any invoice in accordance with Clause 12.3,in addition to any rights under Clause 14, Integrity shall have the right to charge interest on overdue amounts at the rate of 2% per year above the UK base rate of HSBC Bank plc, calculated on a daily basis from the date when payment becomes due for payment up to and including the date of actual payment whether before or after judgment.
12.6 Where the Customer fails to pay in full any invoice in accordance with Clause 12.3 on or before the date when the amount becomes due for payment, Integrity shall, without prejudice to any other rights it may have, be entitled to (i) terminate the Agreement, or (ii) suspend the Licence and/or provision of the Services until the date of actual payment with immediate effect by notice in writing.
12.7 Integrity may by such means as it chooses prevent further use of the Licensed Program(s) by the Customer if the Customer fails to pay all or any part of the Initial Licence Fee or Annual Licence Fee within six (6)_weeks of the due date for payment of those fees. To the extent that Integrity exercise such right Integrity shall deliver written notice to the Customer no less than 48 hours before exercising such right.
12.8 If the Customer is prevented from further use of the Licensed Program(s) by Integrity under clause 12.7 (or if the Customer so requests), Integrity will, at the written request of the Customer, provide a quote (priced at Integrity’s sole discretion) for the following services, which will be delivered by Integrity upon payment in full in advance by the Customer of the amount quoted and upon receipt of written approval by the Customer’s owners or representatives:
12.8.1 Provision of a copy of the stored data held within the Licensed Program environment, constituting a complete copy of the transactional data to the Customer or their duly appointed representatives. The copy of the stored data can be exported to a third-party database for further processing;
12.8.2 Grant of a new software licence containing the same restrictions as Sub-clauses 4.1-4.3 and Clause 13 where applicable and subject to these Term and Conditions, using the data within the former structure to be provided with either read only or ongoing processing capability. The provision of such licence will be subject to payment of a fee based upon users and length of duration. Supply will be subject to written approval by the Customer's owners or representatives.
12.9 Service days booked by the Customer and subsequently cancelled by the Customer without a clear 10 working day notice period provided in writing to Integrity will be charged for in full.
12.10 Service days are supplied on as consumed basis with Integrity making no commitment as to what can be achieved in the day other than the Integrity staff supplied will have the requisite skills.
12.11 All days referred to on this arrangement must be utilised within 12 months of the effective date of the agreement unless agreed in writing by the parties
13 THIRD PARTY SOFTWARE
13.1 The Customer acknowledges that the Customer’s right to use Third Party Software shall be subject to the relevant terms and conditions agreement for such Third Party Software which shall be enforceable as between the Customer and the Third Party Software Licensor (“Third Party Licence Agreements”).
13.2 It is a pre-requisite of use of Third Party Software that the relevant Third Party Licence Agreement(s) are complied with by the Customer and where necessary signed and delivered to the relevant Third Party Software Licensor with a confirmation of the same 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 of any Third Party Software, including without limitation in respect of any changes, updates and releases to Third Party Software.
14 TERMINATION OF THIS AGREEMENT
14.1 Either Party may terminate this Agreement by giving the other Party no less than six months’ written notice of termination, such notice not to expire prior to the end of the Initial Term, or prior to any Anniversary Date, as applicable.
14.2 Without prejudice to any other right or remedy available to Integrity, Integrity may terminate this Agreement on written notice to the Customer if the Customer:
14.2.1 commits any material breach of any term of this Agreement and, in the case of a breach capable of being remedied, fails to remedy such breach within 10 Business Days after the Customer receives written notice specifying the breach from Integrity; or
14.2.2 fails to pay any of the Fees when due and payable, and fails to remedy such failure within 10 Business Days after the Customer receives written notice of such failure from Integrity.
14.3 This Agreement shall be terminated by either Party immediately on written notice to the other Party if the other Party becomes subject to any of the events listed in clause 14.3.1 to 14.3.11 below:
14.3.1 becomes insolvent or makes a composition or arrangement with its creditors;
14.3.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the Court" did not appear in section 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom the forgoing applies.
14.3.3 either party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors (specifically for the purpose of a company voluntary arrangement, a scheme of arrangement or individual voluntary arrangement) other than where these events take place for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or the solvent reconstruction of either party;
14.3.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of either party, other than for the sole purpose of a scheme for a solvent amalgamation of the party with one or more other companies or the solvent reconstruction of that party;
14.3.5 (being an individual) the Customer is the subject of a bankruptcy petition or order;
14.3.6 a creditor or encumbrancer of either party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days;
14.3.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the party;
14.3.8 a floating charge holder over either party's assets has become entitled to appoint or has appointed an administrative receiver;
14.3.9 a person becomes entitled to appoint a receiver over either party's assets or a receiver is appointed over either party's assets;
14.3.10 any event occurs, or proceeding is taken, with respect to either party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 14.3.1 to 14.3.9 (inclusive); or
14.3.11 being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
14.4 Where the Customer becomes subject to any of the events listed in clause 14.3 and has not paid the Annual Licence Fee for that contract year in full (and without prejudice to its liability to do so), the Customer shall pay to Integrity a Fee for each day the Agreement remains in force thereafter at a rate 1/365 of the Annual Licence Fee per day (to be offset against the unpaid Annual Licence Fee) which the Customer shall pay in weekly instalments on the 7th day of each week ("Weekly Fee") . In the event that the Customer fails to make payment of any Weekly Fee within 48 hours of receiving notice from Integrity demanding payment, Integrity shall be entitled to terminate the Agreement or prevent further use of the Software by the Customer by such means as it chooses. If the Agreement is terminated or the Customer is prevented from further use of the Software under this clause, Integrity will, at the written request of the Customer, provide a quote (priced at Integrity's sole discretion) for the following services, which will be delivered by Integrity upon payment in full in advance by the Customer of the amount quoted:
14.4.1 Provision of a copy of the stored data held within the Licenced Program environment, constituting a complete copy of the transactional data held, to the Customer or their duly appointed representatives. The copy of the stored data can be exported to a third-party database for further processing;
14.4.2 Grant of a new software licence, containing the same restrictions as Sub-clauses 4.1-4.3 and Clause 13 where applicable and subject to these Term and Conditions, using the data within the former structure to be provided with either read only or ongoing processing capability. The provision of such licence will be subject to payment of a fee based upon users and length of duration. Supply will be subject to written approval by the Customer's owners or representatives.
14.5 Without prejudice to any other right or remedy available to Integrity, and provided always that Integrity has not terminated the Agreement, where the Customer becomes subject to any of the events listed in clause 14.3 it shall be a condition of it continuing to supply the Software and any related services to the Customer that any insolvency officer appointed shall provide a personal guarantee, guaranteeing the payment of all future charges in respect of the licensing and supply of the Software and services to the Customer. Failure by the insolvency officer to provide such a guarantee within fourteen (14) days of the event listed in clause 14.3 occurring shall entitle Integrity to terminate the Agreement under clause 14.3.
15 CONSEQUENCES OF TERMINATION
15.1 Upon termination of this Agreement:
15.1.1 the Customer shall immediately pay to Integrity all outstanding unpaid invoices and interest and, in respect of Fees for which no invoice has been submitted (including without limitation in respect of any work in progress at the point of termination), Integrity may submit an invoice, which shall be payable immediately on receipt; and
15.1.2 the following clauses of this Agreement shall continue in force: Clause 16 (Confidentiality), Clause 17 (Intellectual Property), Clause 18 (Liability), Clause 28 (Notices), Clause 29 (Dispute Resolution, Jurisdiction and Applicable Law).
15.2 Upon the termination of this Agreement any Licence granted shall immediately terminate and Integrity shall cease to supply any Services. The Customer shall immediately return to Integrity the relevant Licensed Program Materials and all copies of the whole or any part thereof. Alternatively, Integrity may require the Customer to destroy the same. In the case of the Licensed Programs, destruction shall include the un-installation and removal of the same from the Operating Environment (and, if applicable, any other equipment onto which the Licensed Programs have been installed) and the erasing or destruction, as appropriate, of all storage media containing the Licensed Programs.
15.3 Where destruction is required by Integrity under Clause 15.1, the Customer (acting by a director) shall certify in writing to Integrity that it has destroyed the relevant Licensed Program Materials and all or any copies thereof and that the requirements of Clause 15.1 have been satisfied.
15.4 Notwithstanding the provisions of Clause 15.1 the Customer may:
15.4.1 retain any data belonging to the Customer already extracted by the Customer from the Licensed Programs before termination and store the same on separate media for continuity purposes; and
15.4.2 retain such records already extracted by the Customer from the Licensed Programs before termination to the extent required for audit, legal or regulatory purposes.
16 CONFIDENTIALITY AND DATA PROTECTION
16.1 Each Party (“Recipient”) undertakes to the other Party (“Discloser”) that, except as provided by Clause 16.2 or as authorised in writing by the Discloser, it shall at all times during the continuance of this Agreement and for 3 years after its termination:
16.1.1 keep the Discloser’s Confidential Information confidential;
16.1.2 not disclose the Discloser’s Confidential Information to any other party;
16.1.3 not use the Discloser’s Confidential Information for any purpose other than as contemplated by this Agreement;
16.1.4 not make any copies of, record in any way or part with possession of the Discloser’s Confidential Information; and
16.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by the Recipient, would be a breach of the provisions of this Clause 16.
16.2 Subject to Clause 16.3, the Recipient may disclose the Discloser’s Confidential Information to:
16.2.1 any of its sub-contractors, substitutes, suppliers, professional representatives or advisors;
16.2.2 any party appointed by the Customer to maintain the Operating Environment on which the Licensed Programs are being used (within the terms of the Licence); and
16.2.3 any of its employees or officers or the employees or officers of any party described in Clauses 16.2.1 and 16.2.2, provided always that such disclosure may be made to such persons only to the extent that is necessary for the purposes contemplated by this Agreement, and any such person has first entered into a written obligation of confidentiality owed to Discloser in terms no less onerous than Clause 16.1 and the Recipient will take all reasonable steps to ensure such person adheres to the same.
16.3 The provisions of Clause 16.1 do not apply to information which is or becomes public knowledge through no fault or default of the Recipient.
16.4 The Recipient may disclose the Discloser’s Confidential Information where required to do so by any order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body, by the rules of any stock exchange on which the shares of any member of the Recipient’s Group are listed, or by the laws or regulations of any country with jurisdiction over the affairs of any member of the Recipient’s Group, provided that the Recipient shall (to the extent permitted by law) prior to any such disclosure:
16.4.1 inform the Discloser of the full circumstances and the Discloser’s Confidential Information that will be disclosed;
16.4.2 consult with the Discloser as to possible steps to avoid or limit disclosure and take those steps where the Discloser reasonably requests;
16.4.3 if practicable to do so, gain assurances as to confidentiality from the body or person to whom the information is to be disclosed;
16.4.4 where the disclosure is by way of stock exchange announcement, inform the Discloser of the proposed wording of such parts of the announcement that relate to the Discloser’s Confidential Information and, in respect thereof, consult with the Discloser as to such wording to the extent reasonably practicable.
16.5 The Recipient shall inform the Discloser promptly immediately upon becoming aware or suspecting that the Discloser’s Confidential Information has been disclosed to an unauthorised person.
16.6 The Customer acknowledges and agrees that it shall be data controller of all Personal Data that is processed by it within the Licensed Program Materials. The parties agree that Integrity shall be data processor only in respect of the data identified within Integrity’s data processing policy found at https://www.integrity-software.net/data-policy/. The Customer agrees to be bound by the data processing policy which may only be amended by mutual agreement of the parties
17 INTELLECTUAL PROPERTY
17.1 The Customer acknowledges that the Licensed Program Materials and any and all Intellectual Property Rights of whatever nature which now or in the future which subsist in the Licensed Program Materials are and will remain the property of Integrity and any Project IPR shall immediately vest in and shall be owned by Integrity.
17.2 The Customer shall notify Integrity immediately if the Customer becomes aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any person.
17.3 If a third party brings a claim against the Customer alleging that the Use of the Licensed Program Materials infringes its Intellectual Property Rights (“Intellectual Property Claim”), Integrity shall pay all costs and damages awarded or agreed to in settlement of such Intellectual Property Claim provided that the Customer:
17.3.1 supplies Integrity with prompt written notice of the Intellectual Property Claim;
17.3.2 does not, without Integrity’s prior written consent: (i) make any admissions in connection with, (ii) agree to any settlement or compromise of, or (iii) do anything to prejudice Integrity’s defence and/or settlement of, the Intellectual Property Claim;
17.3.3 provides Integrity with reasonable assistance in respect of the Intellectual Property Claim; and
17.3.4 gives to Integrity sole authority to defend or settle the Intellectual Property Claim, subject to Integrity diligently defending such claim.
17.4 If, in Integrity's reasonable opinion, the Licensed Program Materials and/or Use of the Licensed Program Materials by the Customer for the Permitted Use on the terms of this Agreement are or may become the subject of an Intellectual Property Claim then Integrity will either:
17.4.1 obtain for the Customer the right to continue such Use of the Licensed Program Materials which are the subject of the Intellectual Property Claim; or
17.4.2 replace or, with the written consent of the Customer, modify the Licensed Program Materials which are the subject of the Intellectual Property Claim so they become non-infringing.
17.5 Integrity will have no liability for any Intellectual Property Claim resulting from:
17.5.1 the Use of the Licensed Program Materials in combination with any equipment or software (including the Linked Materials) not supplied by Integrity;
17.5.2 the Use of the Licensed Program Materials otherwise than in accordance with the terms and conditions of the Licence and the Program Documentation and the Permitted Use; or
17.5.3 any modification of any item of the Licensed Programs by a party other than Integrity or its authorised agent.
18 LIABILITY
18.1 Subject to Clause 18.4, Integrity shall not in any event be liable to the Customer for:
18.1.1 loss of use;
18.1.2 loss of data
18.1.3 loss of profits;
18.1.4 loss of contract;
18.1.5 loss of business opportunity;
18.1.6 loss of anticipated savings; or
18.1.7 any indirect or consequential loss or damage which may be suffered by the Customer in connection with this Agreement (whether or not such losses or damages were reasonably foreseeable or actually foreseen).
18.2 Subject to Clauses 18.1 and 18.4, Integrity’s total aggregate liability in respect of all claims, losses or damages, whether arising from contract, tort (including negligence), breach of statutory duty or otherwise under or in connection with this Agreement in any 12 month period commencing on the Commencement Date or an Anniversary Date shall be limited to a sum equivalent to the Fees payable by Customer during that 12 month period.
18.3 The Parties acknowledge and agree that the limitations contained in this Clause 18 are reasonable in the light of all the circumstances.
18.4 Nothing in this Agreement shall exclude or limit liability for:
18.4.1 fraud or fraudulent misrepresentation;
18.4.2 for death or personal injury as a result of Integrity’s negligence;
18.4.3 breach of the terms implied by s2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
18.4.4 any other liability to the extent that such exclusion or limitation is prohibited by applicable law.
19 FORCE MAJEURE
19.1 Neither Party will be liable for any failure nor delay in performing its obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of God, acts of war, pandemic, epidemic or governmental action.
19.2 If such circumstances continue for a continuous period of more than 3 months, either Party may terminate this Agreement by written notice to the other Party.
20 NO AGENCY OR PARTNERSHIP
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationships expressly provided for in this Agreement.
21 ASSIGNMENT, TRANSFER, SUBCONTRACTING AND AMENDMENTS
The Customer shall not be entitled to assign, transfer, charge, sub-license, impair, encumber, or dispose of this Agreement or any of its rights or obligations hereunder to any third party without the prior written consent of Integrity. Integrity may assign this Agreement or any of its rights, licences or privileges pursuant to this Agreement in whole or part thereof to any person, firm, corporation, to its Group Companies, or other entity which assumes the obligations of Integrity pursuant to this Agreement.
22 ANNOUNCEMENTS
Within a reasonable time after the signing of this Agreement, the Parties may acting in good faith agree the wording and form of a press release and/or other promotional materials (each an “Announcement”). Once the form and wording of an Announcement is agreed, either Party may issue to the press, its current or prospective clients or any other person it deems appropriate and make full use of the Announcement for both internal and external purposes.
23 SEVERANCE
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that those provisions will be deemed severed from the remainder of this Agreement. The remainder of this Agreement will be valid and enforceable.
24 ENTIRE AGREEMENT
24.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
24.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
24.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement
24.4 Nothing in this clause shall limit or exclude any liability for fraud.
25 WAIVER
No delay, neglect or forbearance on the part of either Party in enforcing against the other Party any term or condition of this Agreement will either be or be deemed to be a waiver or in any way prejudice any right of that Party under this Agreement and no waiver by either Party of a breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of the same or any other provision. No right, power or remedy in this Agreement conferred upon or reserved for either Party is exclusive of any other right, power or remedy available to that Party.
26 RIGHT OF AUDIT
The Customer will permit Integrity to inspect and have reasonable access to any premises, and to the computer equipment located there, at or on which the Licensed Program Materials is being kept or used, and any records kept by the Customer relating to the Customer’s use of the Licensed Program Materials, for the purposes of ensuring that the Customer is complying with the terms of this Agreement, provided that Integrity provides reasonable advance notice to the Customer of any such inspection, which will take place during normal working hours on a Business Day. Integrity will be entitled to make and retain copies of such records for the purposes of exercising its rights under this Agreement.
27 THIRD PARTIES
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
28 VARIATION
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
29 NOTICES
29.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
29.1.1 Delivered by hand or by pre-paid first class post or other next working day delivery service to the other party at its address set out in this Agreement or such other address as may have been notified by that party for such purposes; or
29.1.2 Sent by email to the address specified in this Agreement or such other email address as may have been notified by that party for such purposes;
29.2 Any notice shall be deemed to have been received:
29.2.1 If delivered by hand, at the time the notice is left at the proper address;
29.2.2 If sent by pre-paid first class post or other next working day delivery service, at 9am on the second Business Day after posting;
29.2.3 If sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt when business hours resume. In this clause 29.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
30 DISPUTE RESOLUTION, JURISDICTION AND APPLICABLE LAW
30.1 Subject to Clause 29.2, this Agreement and all matters arising from it and any dispute resolutions referred to below will be governed by and construed in accordance with the laws of England notwithstanding the conflict of law provisions and other mandatory legal provisions.
30.2 Notwithstanding any other provision of this Agreement, either Party will have the right to sue for breach of its Intellectual Property Rights (whether in connection with this Agreement or otherwise) in any jurisdiction where it believes that infringement or a breach of this Agreement relating to its Intellectual Property Rights might be taking place.
30.3 Each Party recognises that the other Party's business relies upon the protection of its Intellectual Property Rights. In the event of a breach or threatened breach of Intellectual Property Rights, the other Party will be caused irreparable damage and such other Party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its Intellectual Property Rights and nothing in this Clause 29.2 will prohibit either Party from applying to the court immediately to obtain injunctive relief.
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