| 1 |
Interpretation |
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1.1 |
The Conditions set out in this document are supplemental to Curtis Consulting Limited’s Standard Terms and Conditions of Supply
(“General Conditions”). In the event of any conflict or inconsistency between these supplemental Conditions (“Supplemental
Conditions”) and the General Conditions, the Supplemental Conditions shall prevail but only to the extent of that conflict or inconsistency. |
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1.2 |
Words and expressions defined in the General Conditions shall have the same meaning when used in these Supplemental Conditions. In addition, the
following expressions used in these Supplemental Conditions shall, unless the context otherwise requires, have the following meanings:- |
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| “Annual Licence and Support Fee” |
the Supplier’s standard annual Licence and Support fee |
| “Consumables” |
the materials on which the signs and other items are printed using the Software, the plastic backing materials for the signs and the toner
cartridges and wear parts for any printer supplied by the Supplier for use in connection with the Software |
| “Contract” |
a contract for the supply of Software |
| “Licence” |
has the meaning given to it at clause 3.1 |
| “Perpetual Licence” |
a Licence that will continue unless and until terminated in accordance with clause 7 of these Supplemental Conditions |
| “Software” |
the Supplier’s proprietary software to be provided under the Contract |
| “Support” |
the Software support services described at clause 4 of these Supplemental Conditions |
| “Waiver Level” |
the value of Consumables (as specified by the Supplier) which, if purchased by the Customer, will, subject to clause 3.3, result in the waiver by
the Supplier of the Annual Licence and Support Fee |
| “Year” |
a period of 12 months beginning with the date on which the Software is activated or any anniversary of that date. |
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| 2 |
Charges and Payment |
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2.1 |
The Supplier may increase the Annual Licence and Support Fee and Waiver Level from time to time by giving the Customer written notice of the increase
at any time prior to the commencement of the Year to which the increase is applicable. Any such increase shall not exceed (in percentage terms) the
percentage increase in the Retail Prices Index published by the Office for National Statistics during the period since the previous increase (or,
where there has been no previous increase, the date on which the Software was activated) plus 4%. |
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2.2 |
The price of the Software includes the first Year’s Annual Licence and Support Fee. |
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| 3 |
Software |
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3.1 |
The Supplier grants to the Customer, with effect from the activation of the Software, a non-exclusive non-transferable licence (renewable annually
except where the Supplier has agreed in writing to the grant of a Perpetual Licence) to load the Software and use it on a single computer under its
control. |
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3.2 |
Except in the case of a Perpetual Licence, the Licence will continue for an initial period of 12 months from the date the Software is activated
(“Annual Licence”). The Software will automatically deactivate at the end of that period if the Annual Licence has not been renewed |
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3.3 |
Provided that the Customer is not in breach of the Contract, it may renew an Annual Licence for further 12 month periods by paying to the Supplier
before the end of the then current Year the Supplier’s then applicable Annual Licence and Renewal Fee. The Supplier shall, however, waive its
Annual Licence and Renewal Fee for the following Year if the Customer has purchased from the Supplier during the then current Year Consumables to a
value at least equal to the Waiver Level. |
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3.4 |
The Customer may make such copies of the Software as are reasonably necessary for back up purposes. All such copies must reproduce and include the
Supplier’s copyright notice and their use shall be governed by the terms of this Licence. |
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3.5 |
The Customer shall not do any of the following, namely:- |
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3.5.1 |
use, store or copy the Software or its accompanying documentation (or any part of the Software or such documentation) except as expressly permitted
under these Conditions; |
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3.5.2 |
rent, lease, sub-license or lend the Software or its accompanying documentation; |
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3.5.3 |
modify, adapt, merge, translate or create derivative works based on the whole or any part of the Software or its accompanying documentation; or |
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3.5.4 |
disassemble, decompile or reverse engineer the Software (or any part of the Software) except insofar as mandatorily permitted by section 50B of the
Copyright, Designs and Patents Act 1988 or other applicable legislation. |
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3.6 |
The Customer shall keep possession of and control over the Software provided to it and shall effect and maintain adequate security measures to
safeguard the Software from access or use by any unauthorised person. |
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3.7 |
The Customer may transfer the Software (complete with all its associated documentation) and the benefit of the Licence to another person or entity
provided he or it has agreed to be bound by the terms of the Licence and the Customer contemporaneously removes all copies of the Software installed
on hard disk and does not retain any copies of the Software or its associated documentation. If the transferee does not accept the terms of the
Licence, then the Licence shall automatically terminate. If the Software is transferred without the pc on which it was originally installed and
activated, then the transferee will need to apply to the Supplier for a new activation code. |
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3.8 |
The Customer shall promptly notify the Supplier in writing of the full name and address of any transferee of the Software pursuant to clause 3.7
above and confirm to the Supplier in writing that it has complied with its obligations under clause 3.7. |
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| 4 |
Support |
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4.1 |
During the period of the Licence (and subject to clause 4.5 below), the Supplier shall: |
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4.1.1 |
endeavour to resolve, through the provision of an email helpdesk facility available during Normal Working Hours , any technical queries that the
Customer may have in relation to the use or operation of the Software; and |
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4.1.2 |
endeavour to correct any failure of the Software to perform substantially in accordance with its accompanying documentation provided that the Software
is properly used on a computer and with an operating system complying with the specification set out in the Supplier’s user manual for the
Software. |
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Any further or additional support shall be provided at the discretion of the Supplier and shall be subject to the Supplier's standard charges from time to time in force. |
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4.2 |
The Supplier shall not be obliged to provide the support referred to at clause 4.1 above if: |
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4.2.1 |
the Customer is using any version of the Software other than the most recent version made available by the Supplier to its licensees ; or |
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4.2.2 |
the failure of the Software to perform substantially in accordance with its accompanying documentation arises from the Customer doing or attempting to
do any of the acts referred to at clauses 3.5.3 or 3.5.4 above. |
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4.3 |
For the avoidance of doubt, the Supplier shall not be obliged to provide Support in respect of any difficulty or problem experienced by the Customer
in using the Software which arises from any defect in or failure of the computer (including its operating system) upon or in connection with which the
Customer is using the Software (including, without limitation, where caused by a computer virus), from the use of the Software upon a computer or with
an operating system that does not comply with the specification set out in the Supplier’s user manual for the Software or from operator error. |
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4.4 |
Unless otherwise agreed in writing by the Supplier, the support services set out in this clause 4 shall be provided only to the original registered
user of the Software (being the person or entity to whom the "key" to activate the Software was originally supplied). |
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4.5 |
Where the Customer has been granted a Perpetual Licence, the Supplier’s provision of the Support referred to at clause 4.1 above during any period subsequent to the end of the Warranty Period (as defined at clause 5.1.1 below) shall be subject to the Customer having paid the Supplier’s standard annual support charge from time to time in force |
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| 5 |
Warranties |
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5.1 |
The Supplier warrants to the Customer that: |
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5.1.1 |
the disk on which the Software is supplied will be free from defects in materials and workmanship under normal use for a period of 90 days after the
date on which the Software was originally supplied to the Customer ("the Warranty Period"). If a defect in the disk shall occur during the
Warranty Period it may be returned with proof of purchase to the Supplier who will replace it free of charge. |
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5.1.2 |
the Software will perform substantially in accordance with its accompanying documentation provided that the Software is properly used on a computer
and with an operating system complying with the specification in the Supplier’s user manual for the Software. If the Software does not so perform and
the Customer returns the Software and its accompanying documentation together with proof of purchase during the Warranty Period, the Supplier will
provide a corrected version of the Software. |
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5.2 |
Without prejudice to the warranties at clause 5.1 above, the Supplier does not warrant that the Software will meet the Customer’s requirements;
that the operation of the Software will be error-free; or that signs or other items produced using the Software will comply with the law applicable to
such signs or other items. |
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5.3 |
Unless otherwise agreed in writing by the Supplier, the warranties given by the Supplier at clause 5.1 above are given only to the original registered
user of the Software as defined at clause 4.4 above. |
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| 6 |
IPR Indemnity |
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6.1 |
The Supplier shall indemnify the Customer against any claim that the Customer’s normal use or possession of the Software in accordance with the
terms of the Licence infringes the intellectual property rights of any third party PROVIDED THAT: |
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6.1.1 |
the Supplier is given immediate and complete control of such claim; |
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6.1.2 |
the Customer does not prejudice the Supplier’s defence of such claim; |
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6.1.3 |
the Customer gives the Supplier all reasonable assistance with such claim; |
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6.1.4 |
the claim does not arise as a result of the use of the Software in combination with equipment, programs or data not supplied or approved in writing by a director of the Supplier. |
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6.2 |
The Supplier shall have the right to replace or modify all or any part of the Software in order to avoid a third party infringement claim or if this cannot be achieved on terms which the Supplier considers reasonable, remove the Software and refund the sums (other than sums paid in respect of Support already provided) paid by the Customer under the Contract in respect of the Software and its Support. |
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6.3 |
This clause 6 states the entire liability of the Supplier to the Customer in respect of any infringement of the intellectual property rights of any third party. |
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| 7 |
Termination |
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7.1 |
The Supplier may terminate the Contract and/or the Licence forthwith by notice in writing to the Customer if the Customer:- |
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7.1.1 |
commits a breach of the Contract and/or the Licence provided that if the breach is capable of remedy (being actual remedy as opposed to remedy by
payment of damages or compensation) the notice shall only be given if the Customer shall not have remedied the same within 30 days of having been
given notice in writing specifying the breach and requiring it to be remedied; or |
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7.1.2 |
has a winding up petition presented against it and does not make an application to set aside the same within 7 days or goes into liquidation whether
compulsorily or voluntarily (unless as part of a bona fide scheme for amalgamation or reconstruction first approved in writing by the Supplier),
becomes subject to an administration order or has an administrator appointed, has a receiver or administrative receiver appointed over or encumbrancer
take possession of the whole or any part of its assets, compounds with its creditors or any class of the same, ceases to carry on its business or
threatens to cease the same or becomes unable to pay its debts within the meaning of s.123 of the Insolvency Act 1986; or |
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7.1.3 |
being an individual, has a bankruptcy order made against him or, being a partnership, has a bankruptcy order made against any of the partners or a
notice served by a partner for the dissolution of the partnership. |
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7.2 |
Upon the termination for any reason of the Licence, the Customer shall, at the Supplier's option, either return to the Supplier or destroy all copies
of such Software and any associated documentation. |
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| 8 |
Limitation of Liability |
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8.1 |
For the purpose of Contracts covered by these Supplemental Conditions, clause 8.2 below applies in place of clause 10.3 of the General Conditions. |
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8.2 |
Except for the type of liability referred to at clause 10.1 of the General Conditions and except for any other matters for which the Supplier’s
liability may not by law be restricted or excluded, the Supplier’s total liability in respect of any contractual breach or representation,
statement or tortious act or omission arising under or in connection with the Contract (a “Default”) shall not exceed: |
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8.2.1 |
in the case of a Default occurring during the 12 month period referred to at clause 3.2 above, the price paid or payable by the Customer in respect of the Software; |
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8.2.2 |
in the case of a Default occurring after the expiry of the 12 month period referred to at clause 3.2 above, a sum equal to the Annual Licence and Renewal Fee or, where the Customer has been granted a Perpetual Licence, any annual support fee paid by the Customer for the 12 month period in which the Default occurs; |
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8.3 |
The Supplier shall not be liable to the Customer for any loss arising out of any failure by the Customer to comply with its obligations under the
Contract or resulting from: |
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8.3.1 |
use of the whole or any part of the Software with any equipment and/or software not supplied by the Supplier or approved by it for use in connection
with the Software; |
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8.3.2 |
repair, adjustment, alteration or modification of any part of the Software not undertaken by the Supplier or its sub-contractor. |
