SOFTWARE END USER LICENCE TERMS & CONDITIONS
This Agreement shall become effective from the date shown in the THIRD SCHEDULE
1.1 Definitions are as shown on the reverse of the SECOND SCHEDULE, plus the following
1.4 ‘Computer’ is the single CPU system identified by number in the THIRD SCHEDULE on which the Software is to be used, or replacement thereof supplied by the Seller (Multiple CPU systems require supplementary licences)
1.5 “Seller’ means any person who has agreed to supply, sell or rent the IMS Software to the customer named in the FIRST SCHEDULE
2.0 USE OF SOFTWARE AND LICENCE
2.1 Customer acknowledges and agrees with Integer Microsystems that, in consideration of Integer Microsystems permitting the sale or supply by Seller to customer of the IMS Software and of the rights and licence hereby granted by Integer Microsystems Ltd to Customer, Customer’s use and possession of the IMS Software and rights herein shall in all respects be governed by and limited as set out in this Licence
2.2 Integer Microsystems hereby grants Customer at the request of Seller a non exclusive, non transferable right to use the IMS Software in the form indicated in the THIRD SCHEDULE on the single Computer at a single location on condition and for so long as Customer complies with the terms of the Licence and either destroys or returns to Integer Microsystems the IMS Software when this right is terminated in accordance with this Licence
2.3 Integer Microsystems shall have the right to terminate this Licence forthwith by notice to Customer if customer shall violate any of its provisions
2.4 Customer acknowledges that although Customer may own the media upon or in which the IMS Software is earned or recorded, Customer has no property in or rights to or to use the IMS Software beyond those specifically granted in this licence
2.5 Customer agrees not to copy the IMS Software provided that Integer Microsystems agrees that Customer shall be entitled to make no more than three (3) copies of the IMS Software for backup purposes in which event Customer shall place a label on the outside of each backup copy Showing the program name, version number and the Integer Microsystems copyright and trade mark notices
in the same form as the orignal copy
2.6 Customer agrees to purchase additional licences for any additional user copies of the IMS Software if Customer intends to or does use it on any computer other than the Computer (If the computer on which customer uses the IMS Software is a multi user system, then $!& Licence covers all users on that single system without further licence payments if the IMS Software was registered for that Computer)
2.7 Customer may use the IMS Software only in the form indicated in toe THIRD SCHEDULE Customer agrees that it will not use or reproduce or attempt to use or reproduce the IMS Software m a source code or disassembled source code version
3.0. TRANSFER OR REPRODUCTION
3.1 Customer acknowledges that the IMS Software constitutes the proprietary property, confidential information and tradesecrets of Integer Microsystems and/or Integer Microsystems licensor and agrees that under no circumstances shall it disclose to any other person any information concerning the code, design or logic structure of the IMS Software unless such disclosure is first authorised in writing by Integer Microsystems and such disclosure is made in strict compliance with any conditions imposed by Integer Microsystems relating to such disclosure
3.2 Customer understands and recognises that unauthorised reproduction of copies of the IMS Software or unauthorised sale or transfer of such copied may be a criminal act as well as subjecting Customer to civil Natality
3.3 Customer agrees that in the event Customer should wish to transfer the IMS Software to another person, Customer will not make any such transfer unless first authorised and approved by Integer Microsystems Any such approval may be issued subject to Such conditions as Integer Microsystems shall think fit and will in any event be conditional upon the transferee first signing a copy of this Licence and agreeing to the terms of this Licence as may be required
3.4 Integer Microsystems has the right to terminate this Licence, to trace serial numbers and to take legal action against customer and the transferee if the above conditions are violated
4.0 ADAPTIONS AND MODIFICATIONS
4.1 Customer owns any adaptions or modifications which Customer may mate to this IMS Software but in the event the Licence is terminated Custom may not use any part of the IMS Software provided by Integer Microsystems even if Customer has modified it Integer Microsystems continues to own all the IMS Software other than the modifications made by Customer
4.2 Customer agrees to take all steps which are necessary to protect the IMS Software from theft or use contrary to this Licence
5.0 NO WARRANTY
5.1 No warranty is given by Integer Microsystems to customer either in respect of the IMS Software of the media upon or in which it is earned or recorded and the IMS Software is licenced hereunder “as is” by Integer Microsystems to Customer
5.2 Seller may offer Customer a warranty in respect of the IMS Software However, Customer shall be responsible for confirming direct with Seller what if any, warranty is given by Seller Any such warranty given by the Seller shall be the sole responsibility of the Seller and no concern of Integer Microsystems
5.3 Any guarantees, conditions or warranties whatsoever whether express or which but for this clause might be implied into this licence on the part of Integer Microsystems as to the performance, description, quality or fitness for any purpose of the IMS Software are hereby expressly excluded Integer Microsystems Ltd shall not under any circumstances be liable for any loss or damage of any description suffered or incurred by Customer resulting from the purchase, use or operation by the Customer of the IMS Software
6.1 The Customer shall indemnify Integer Microsystems against any costs of expenses (including legal fees on a solicitor and own client basts) suffered or incurred by Integer Microsystems from time to time in bringing proceedings or otherwise taking any steps or seeking such advice as may be thought prudent or necessary by Integer Microsystems for the purpose of preserving or enforcing its rights under this Agreement
6.2 This Licence contains the entire agreement between Customer and Integer Microsystems and may be modified only by a subsequent agreement in writing signed on behalf of the parties
6.3 If Customer shall be partnership or other association of one or more legal persons, any covenants or obligations herein contained on the part of Customer shall take effect as joint and several covenants and obligations
6.4 This Agreement may not be assigned by the Customer without the prior written consent of integer Micro Systems Limited which will not be unreasonably withheld
6.5 This Agreement is made in England and shall be governed by the Laws of England
TERMS AND CONDITIONS OF SALES
This Agreement shall become effective from the date it is accepted by Integer Micro Systems Limited
Definitions are as stated on the reverse of.the SECOND SCHEDULE
Site Preparation, Delivery and Installation
Prior to the estimated Hardware delivery date, the Customer will ensure that the Installation Site is fit and ready to receive the Hardware and that the Site meets the environmental and installation specifications required by Integer Micro Systems Limited The Customer will ensure that the Installation Site is maintained in accordance with the Integer Micro Systems Limited site specifications
Integer Micro Systems Limited or its appointed agent will deliver and install the Hardware at the Installation Site Each item of Hardware shall be deemed to be installed when it is certified Ready for Use by Integer Micro Systems Limited following completion of the Hardware Installation Test The Customer should sign a separate Hardware Maintenance Agreement to become effective from this date
Integer Micro Systems Limited or its appointed agent will deliver and install the Software at the Installation Site Each item of Software shall be deemed to be installed following completion of the Software Acceptance Test using test data supplied by the Customer The Customer should sign a separate Software Maintenance Agreement with Integer Micro Systems Limited to become effective from this date
In the event of Integer Micro Systems Limited being unable to deliver any items of Hardware to the Installation Site due to the Customer failing to fulfill its obligations under a) above, then Integer Micro Systems Limited shall be entitled to invoice for such items and receive payment from the Customer in accordance with Clause 4b) herein
If Integer Micro Systems Limited shall not have delivered to the Installation Site any item or items of the Hardware (or alternative Hardware of equal or better performance), Systems Software and any Application Software that are the subject of this Agreement, within 60 days after the estimated delivery date, then the Customer may at any time thereafter by not less than 14 days written notice, require Integer Micro Systems Limited to effect delivery of the same on or before expiry of the said notice, failing which the Customer shall have the right to cancel this Agreement save that delivery may be suspended and the time of such suspension added to said period of 60 days in the event of delay due to any cause provided for in Clause 9a) herein
The Sales Price of each item of Hardware is detailed in the System Statement and is exclusive of Value Added Tax
The Sales Prices detailed in the System Statement for any item(s) of Hardware scheduled for installation within 3 months of the effective date of this Agreement will remain fixed unless installation is delayed beyond the said 3 months period and such delay is requested or caused by the Customer
If installation of any item(s) of Hardware is made after the expiry of the said 3 months period, Integer Micro Systems Limited will be entitled to charge the Customer the standard Sales Price for such item(s) prevailing at the date of installation
The Customer will also pay the delivery and installation Charge as defined in the System Statement
A deposit of 20% of the Hardware and Software Purchase Price (plus Value Added Tax thereon) becomes due on the date that this Agreement is signed by the Customer and should be paid to Integer Micro Systems Limited
The balance of the Hardware Purchase Price and the delivery arid installation Charge becomes due in respect of each item of Hardware on the date that such item has completed the Hardware Installation Test and is certified by Integer Micro Systems, limited to be Ready for Use and should be paid by the Customer immediately
Payment for each Software Package becomes ## immediately upon completion of the Software Acceptance Test All other Charges for goods or Services provided by Integer Micro Systems Limited become payable within 30 days of the date of invoice therefore
All charges are exclusive of Value Added Tax which will be charged at the rate ruling at the tax point The Customer wit also pay any other Government impost which may be introduced in respect of any item covered by this Agreement prior to its delivery to Site
If any payment due to Integer Micro Systems Limited is delayed beyond the due date for payment, then Integer Micro Systems Limited will be entitled to charge interest thereon at a rate of 2.5% per month on a day to day basis from the due date for payment to the date of actual payment
Integer Micro Systems Limited warrants that on completion of the Hardware Installation Test each item of Hardware supplied pursuant to this Agreement will be in good working order and is covered by manufacturers warranty
Subject only to the warranty given in a) above, no warranty, condition or description or representation on the part of Integer Micro Systems Limited is given, or implied to be taken to have been or implied from anything said or written in negotiations between the parties or their representatives prior to the signature of this Agreement
Title and Insurance
Title to the Hardware shall remain vested in Integer Micro Systems Limited until the full Purchase Price thereof has been received by Integer Micro Systems Limited
Title and Copyright to the Operating Software and all manuals, documentation and updates thereto and the intellectual property therein shall at all times remain vested in Integer Micro Systems Limited but the Customer is hereby permitted to use the same with the Hardware for as long as the Hardware is owned or used by the Customer
The Customer agrees to protect Integer Micro Systems Limited proprietary rights in the Software, manuals and documentation and agrees to take all reasonable measures necessary to prevent unauthorised disclosure of the same and of the information contained therein to third parties
Integer Micro Systems Limited will insure the Hardware until delivery to the Installation Site, thereafter all risk of loss or damage will pass to the Customer
Customer training in the use and operation of the Hardware supplied under this Agreement may be arranged subject to availability of suitable. Integer Micro Systems Limited personnel All operator training is chargeable and prices will be quoted on request
The Customer notify Integer Micro Systems Limited immediately and make no admissions or statements without the prior consent of Integer Micro Systems Limited if any claim is made or action brought against the Customer altering infringement of any letters of patent or copyright in respect of Hardware or Operating Software supplied under this Agreement
Integer Micro Systems Limited agrees that it will, at its own expense defend any such claim and the Customer agrees to give Integer Micro Systems Limited all available information and assistance to enable such defence
Integer Micro Systems Limited Will have no liability to the Customer however if any infringement is based upon
Compliancy with designs or specifications furnished by or on behalf of the Customer
Use of the Hardware or Operating Software in combination with devices not made or supplied by Integer Micro Systems limited
Use of the Hardware or Operating Software in a manner for which the same was neither designed nor contemplated
Integer Micro Systems Limited shall not be responsible for any failure or delay in performance of its obligation under this Agreement due to any cause beyond its control including, but not limited to, Acts of God, the elements, war, industrial disputes, refusal of licence or other Government act, whether the same have effect in the Irish Republic or elsewhere
This Agreement may not be assigned by the Customer without the prior written consent of Integer Micro Systems Limited which will not be unreasonably withheld
Subject only to the provisions of sub-section (1) of section 2 of the United Kingdom Unfair Contract Terms Acts 1977, Integer Micro Systems Limited shall not be liable for and the Customer shall indemnify and hold Integer Micro Systems Limited harmless against any claim in respect of loss, injury or damage to property or persons directly or indirectly caused by or arising from the possession, operation, use malfunction or modification of any Hardware, Operating Software or other items or services provided under this Agreement
In no event shall integer Micro Systems Limited be liable for any indirect or consequential loss or damage arising out of furnishings, functioning or use of any Hardware, Operating Software or other items or services provided under this Agreement
Any disputes, differences or questions between the parties arising out of, or in relation to this Agreement shall after 28 days written notice from one party to the other be referred for a final decision to a single arbitrator to be appointed by mutual agreement between the parties hereto, or in default of such agreement by the President for the time being of the Institute of Electrical Engineers and such reference shall be deemed to be a submission to arbitration under the United Kingdom Arbitration Act 1950 or any re enactment thereof
The terms and conditions of this Agreement represent the entire Agreement between the parties No changes or modifications to these terms will be valid unless incorporated into a written amendment signed by duly authorised representatives of both parties hereto
This Agreement is made in England and shall be governed by the Laws of England
DEFINITIONS USED IN THIS AGREEMENT
1.1 “IMS” means Integer Micro Systems Limited and its personal representatives, successors and permitted assigns;
1.2 “Schedule” means the FIRST SCHEDULE, in which details of the Customer are stated, or the SECOND SCHEDULE, in which details of the System that have been ordered are stated, the THIRD SCHEDULE, in which certifies -details of the System that has been installed are stated. In all cases, this will include any new Schedule;
1.3 “Hardware” means the computer processors and peripheral equipment including terminals, printers, communications equipment and cabling which make up the System but excluding British Telecom lines and equipment. Hardware is described in the SECOND and THIRD SCHEDULES;
1.4 “Computer” is the single CPU system identified by number in the SECOND and THIRD SCHEDULES on which the Software is to be used, or replacement thereof supplied by IMS;
1.5 “System” means any mix of Hardware which includes one or more central processing units, peripherals, software and any other item or thing supplied to fie Customer by IMS;
1.6 “System Software” means the Operating System, licensed by the manufacturer of the computer processor to enable the Hardware to operate and to allow normal running and development of the Application Software, and supplied to the Customer by IMS under its General Terms and Conditions of Trading or other more specific contractual terms as may have been agreed between the parties;
1.7 “Application Software” shall mean the set of programs supplied by IMS to ensure that the Hardware is capable of performing useful work;
1.8 “Integer Micro Systems Software” or “IMS Software” means the computer programs developed by IMS and supplied to the Customer for use on the System and shall include (where the context requires or permits) any Approved Version Upgrades issued to the Customer;
1.9 “Third Party Software” means any computer programs supplied by IMS not comprised within the System Software or the Integer Micro Systems Software;
1.10 “Software” means any part and/or parts of the System Software together with the Integer Micro Systems Software and the Third Party Software. It is the set of computer programs identified in the SECOND and THIRD SCHEDULES, regardless of the form in which it may be used and regardless of any modifications which may be made to it;
1.11 “Approved Version Upgrades” means those amendments and additions in object code form to the Integer Micro Systems Software as shall be made available to the Customer under this contract for the purpose of improving or extending the Integer Micro Systems Software;
1.12 “Licence” means the Terms and Conditions of the Software End User Licence, and the obligations which it creates under the laws of England;
1.13 “The Hardware Installation Test” shall mean the set of rules and tests used by IMS to establish that the Hardware and Systems Software is satisfactorily installed and working;
1.14 “Software Acceptance Test” shall mean the tests used to establish that the phases of modified Software fulfill the agreed functions and provide the agreed output;
1.15 “Premises”, “Installation Site” or “Site” means the building or buildings in which any of the Hardware comprising the System is located or installed;
1.16 “System Manager” means a person designated by the Customer as being responsible for the operation of the computer processor and for overseeing the operation of the System;
1.17 “Normal Working Hours” means the hours of 9.00am to 5.00pm Monday to Friday, excluding Bank and statutory holidays, or any extended hours as may be
agreed by IMS from time to time;
Combined Service Agreement
THIS AGREEMENT is made on the date specified in the First Schedule between INTEGER MICROSYSTEMS LIMITED of Dugard House. Peartree Rd .Colchester. IMS) of the first part and THE CUSTOMER as specified in the said Schedule of the other part WHEREAS.-
IMS has supplied The Customer with a Computer System which requires periodic maintenance, management and updating and
The customer’s staff require periodic assistance and training on the System and the Software, including updating thereto
NOW IT IS HEREBY AGREED as follows.-
1.1 Definitions are as stated on the reverse of THE SECOND SCHEDULE.
COMMENCEMENT AND DURATION
2.1 This Agreement shall commence on the date shown in the First Schedule and shall endure for a minimum period of one year. Thereafter it may be terminated by at least six months written notice by either party.
REPORTING OF PROBLEMS
3.1 Requests for assistance shall be made only by a System Manager by telephoning the number designated for the purpose
3.2 The Customer Support Officer (CSO) receiving the call will determine the appropriate action to be taken and at his or her sole discretion will deal with the problem personally or, during Normal Working Hours, pass the problem on to a software programmer or to a hardware maintenance engineer. In any case the CSO will, subject to the other terms of this Agreement, be responsible for ensuring that the problem has been satisfactorily resolved as soon as reasonably practicable.
3.3 The designated telephone number will be manned by CSOs from 9.00am to 5.00pm Monday to Friday EXCEPT THAT with a minimum of one month’s notice. IMS reserves the right to withdraw service on up to two non-consecutive days in any calendar year for the purpose of staff training.
3.4 The Customer agrees to maintain the environment for The System in accordance with the specification laid down from time to time by IMS including, but not limited to, the ambient temperature in the Premises, the quality of the mains power supply and control of dust, moisture and solvents. The Customer further agrees to maintain on its staff at least TWO persons trained as System Managers in respect of each computer processor and to ensure that the System Managers attend an annual one-day refresher course as specified by the Training Department of IMS,
3.5 The Customer agrees to maintain a System Log containing details of all problems which occur with the Hardware or Software, the dates and times on which such faults are reported and the eventual outcome of such reports. The Customer further agrees to make the System Log available on demand to IMS Customer Service Staff and to
maintain copies of all IMS worksheets on site.
3.6 The Customer shall ensure that all problems which occur with the Hardware or Software are promptly notified la IMS*
3.7 The customer shall provide IMS with full and safe access to any relevant Premises and place of use at such Premises for the purposes of this Agreement.
4.1 The Software covered by this Agreement is specified in the Second Schedule hereto.
4.2 The level of assistance available on any particular software program is specified in section 8. and the Customer accepts that IMS cannot undertake any support other than that specified in that section. If the Customer requires a level of service on Third Party Software greater than the specified then IMS will use its best endeavours to assist the Customer in making separate arrangements with the authors of such Software.
4.3 IMS has included within the Integer Micro Systems Software certain facilities which provide System Managers with information relating to disk capacity, disk surface integrity, file capacity, file structure integrity, backup copy quality and other matters. The Customer agrees that it is the responsibility of the System Manager to utilise these on a regular basis and to take such action as may be appropriate. The Customer agrees to accept the full liability for delays, loss of data or interruption to business arising out of any failure to examine or act on the information provided by the said facilities.
4.4 In order to facilitate the timely diagnosis and correction of problems, the Customer agrees to install a dial-up modem of the type prescribed by IMS, The Customer further agrees to facilitate any requests of the IMS Customer Service Staff for such a dial-up modem to be brought into operation.
4.5 On occasions it may be necessary for the IMS Customer Service Staff to require that the System be reserved for their exclusive use and in such cases the Customer agrees to facilitate such use or, as an alternative, agrees to forego service under this Contract until such exclusive use can be made available. IMS reserves the right to raise additional charges for excess work incurred in correcting errors or omissions directly resulting from the failure of the Customer to make exclusive use of the system available to the IMS Customer Service Staff, or for work earned on outside Normal Working Hours as a direct result of such failure.
4.6 Certain work is not covered by this Agreement and will be charged for at the rates for
the time being in force. This work includes but is not limited to.-
4.6.1 Installation of new software packages,
4.6.2 Maintenance of software not supplied by IMS or software not listed in the Second Schedule,
4.6.3 Repair of faults arising from any alteration or modification not performed by IMS, failure of air-conditioning equipment or fluctuations in the supply of electrical power or any other external influence such as storm fire or flood,
4.6.4 Repair of faults caused by operation of the Software other than in accordance with any documentation or manuals supplied with the System or otherwise caused by the neglect or fault of the Customer or any third party,
4.6.5 Repair of faults arising from the failure of System Managers to act on the information produced by the facilities specified in Clause 42 including, but not limited to, the restoration or correction of data,
4.6.6 Any service relating to the Integer Micro Systems Software in respect of which the Customer shall not have performed its obligations in connection with Approved Version Upgrades pursuant to Clause 6.2 below.
4.7 Integer Micro Systems Limited will endeavour to respond to each request for Software Maintenance received from the Customer within two working days of the day such request is received by Integer Micro Systems Limited.
4.8 The Customer will allow no modifications to the Software to be made by persons other than Integer Micro Systems Ltd. personnel or its authorised agents.
4.9 The Customer will allow no-one other than Integer Micro Systems Ltd. personnel or its authorised agents to modify, change or maintain the Software.
5.1 The hardware covered by this Agreement is specified in the Second Schedule hereto. The maintenance to be performed under this Agreement is as follows.
5.1.1 On-call Remedial Maintenance and repair including replacement of non-serviceable parts,
5.1.2 Preventive Maintenance as specified from time to time by IMS in relation to particular items of the Hardware including lubrication, adjustment and replacement of unserviceable parts, but subject to the exceptions listed in Clause 5.4 below.
5.2 If a hardware problem cannot be solved by technical advice over the telephone, a Reid Service Engineer will be sent to the appropriate Premises during Normal Working Hours to repair or remove the equipment for service. Whilst it may sometimes be possible to leave temporary replacement of the same or equivalent equipment as that removed for repair. IMS offers no warranty in this respect.
5.3 At the specific request of the Customer, and subject to availability, a Reid Service Engineer may undertake emergency repair work outside Normal Working Hours. In such circumstances the Customer agrees to pay for all time and travelling at the rates for the time being in force, even though the work to be carried out would normally be covered under the terms of this Agreement.
5.4 Problems relating to consumable items such as ribbons, fuser rollers, toner cartridges, VDU tubes, print heads, daisy-wheels, diskettes, paper, labels, ope magazines and items classed by the manufacturer as having a limited life are the responsibility of the Customer. IMS reserves the right to charge at the rates for the time being in force for any parts and any time and travelling incurred as a result of such problems, including those requiring disassembly of printing mechanisms for the removal of adhesive labels.
5.5 The Customer acknowledges that, from time to time, certain items of the Hardware may become obsolescent and that repair may be time-consuming or impracticable. IMS reserves the right, subject to a minimum of three months’ notice, to exclude such items from service under this Agreement or to require additional payments in respect thereof, at its sole discretion.
5.6 If equipment repair should necessitate the changing or replacement of any component part then the replaced part shall become the sole property of IMS and the replacement part shall become the sole property of the Customer or the owner of the Hardware if this is not the Customer.
5.7 Certain work is not covered by this Agreement and will be charged for at the rates in force from time to time. This work includes but is not limited to.-
5.7.1 Installation or re-installation of equipment and general electrical work where this is not directly related to the maintenance of the Hardware;
5.7.2 Repair and maintenance of accessories and equipment not supplied by IMS unless specifically agreed;
5.7.3 Repair of damage caused by the connection to the system of any equipment not supplied or authorised in writing by IMS
Combined Service Agreement Contd/…
5.7.4 Repair of damage arising from transport or relocation of equipment not performed by IMS failure of air-conditioning equipment or fluctuations in the supply of electrical power or any external influence such as storm, fire or flood,
5.7.5 Repair of damage caused by but not limited to the ingress of foreign bodies
5.7.6 Repair of faults caused by accidental damage, misuse or by operation of the equipment outside the manufacturer’s specifications or other than in accordance with any documentation or manuals supplied with the System or otherwise caused by neglect or fault of the Customer or any third party.
5.7.7 Pay additional charges if a call out is made without adequate reason, or attendance is required outside Integer Micro systems Ltd. normal working hours
5.8 Integer Micro Systems Ltd. will use best endeavours to respond to faults in normal working hours within 4 to 6 normal working hours of the User’s call on the following basis .-
a) Integer Micro Systems Ltd. will endeavour to respond on the same day to a fault call logged before 10 a.m.
b) Integer Micro Systems Ltd. will endeavour to respond on the same day or on as near the first call on the next working day as possible, to a fault call logged between 10 a.m. and 5.00 p.m.
6.1 From time to time, IMS may at its sole discretion issue Approved Version Upgrades The copyright and all other intellectual property rights of whatever nature in any Approved Version Upgrades shall be and shall remain vested in IMS.
6.2 IMS will make available Approved Version Upgrades on suitable media and will send these to a System Manager, together with instructions on their installation. The Customer agrees to install all such Approved Version Upgrades as and when these are issued in order that the System may be maintained effectively
6.3 Whilst Approved Version Upgrades ill normally be capable of being installed by a System Manager, some releases may need to be installed by IMS Customer Service Staff. In such cases, IMS reserves the right to charge at its current rates in force at the time for such installation.
6.4 Suppliers of System Software and Third Party Software may also make upgrades available from time to time. The Customer accepts that these may be made necessary by Approved Version Upgrades and agrees to install such upgrades as may be necessary, at the prevailing cost.
6.5 The customer accepts that some Approved Version Upgrades may require the addition of extra hardware, such as memory boards, to the System and agrees to purchase such extra hardware as may be necessary within a period of six months from the date of release of the Approved Version Upgrade, failing which IMS may terminate this Agreement immediately by giving written notice to the Customer.
6.6 If the Customer shall require any specific modifications or additional programs not being generally offered to users of IMS systems then these may be provided at the sole discretion of IMS. IMS will issue to the Customer a quotation for the work required on the understanding that, unless or until the said requirements become incorporated into a subsequent Approved Version Upgrade, an additional charge will be raised for the work required in amending the new programs at the time of each and every subsequent Approved Version Upgrade, such charge to be advised in advance of the new release.
6.7 The customer acknowledges that, after a period of time certain versions of the Software will become obsolescent and that support may be time-consuming or impracticable. IMS reserves the right, subject to a minimum of three months’ notice to exclude such items from service under this Agreement or to require additional payments in respect thereof, at its sole discretion.
6.8 The customer accepts that additional changes to the software may become necessary as a result of forces outside the control of either party, such as changes in Government legislation. Where the work to produce these changes becomes excessive. IMS reserve the right to make additional charges, which will be notified prior to the issue of the relevant Approved Version Upgrade.
7.1 IMS-agrees, subject to the clauses below, to provide training courses at its premises.
7.2 IMS will provide training courses on the Customer’s Premises at the request of the Customer subject to availability of appropriate training staff and the suitability of the Premises for this purpose. IMS “will charge for such training course at its current rates in force from time to time.
7.3 The Customer accepts that a certain level of competence is essential for the satisfactory operation of the System and agrees that the System Managers will undertake certain Mandatory training, as specified by IMS at its sole discretion. The Customer further agrees to ensure that his staff are trained in the basic operation of the system up to an adequate level, either by attendance at IMS courses as described above or through suitable internal arrangements. IMS shall give advice on such internal arrangements if requested.
7.4 The Customer accepts that many of the training courses are such that prior knowledge of other aspects of the System may be necessary in order for students to participate fully in the course. The Customer therefore agrees that members of its staff will not be entered for courses unless they have satisfied the prerequisite training specified by IMS.
7.5 The Customer accepts that training courses require preparation and planning and therefore agrees to apply in good time to the Training Department of IMS for places on such training courses. Once made, bookings may be cancelled without penalty by not less than fourteen days’ notice IN WRITING to the Training Department. Cancellations made within fourteen days of the start of the course will be charged for at a cost equivalent to the prevailing rate of the appropriate Training Course as if the course had been attended, although substitutions may be made at any time subject to the prerequisite training requirements detailed in Clause 7.4 above.
ASSISTANCE ON SOFTWARE PACKAGES
8.1 As indicated above. the level of responsibility that IMS can take for various types of software is dependent of the nature of that software and its authorship. This falls into three distinct categories.
a. Software written supported and maintained by IMS* This means that all rights to the software with IMS, that it has access to all the source codes and is capable of giving total support on the product. This is known as Integer Micro Systems Software.
b. Software written and supported by outside suppliers who operate some form of maintenance or upgrading scheme and with which IMS is fully conversant. IMS does not have access to the source codes of this software and is thus unable to guarantee any specific level of support, but can nonetheless offer substantial advice and assistance This grade of software includes System Software and some Third Party Software.
c. Software written by outside suppliers who may operate a maintenance scheme, although such schemes may be on a repayment basis. Whilst IMS has knowledge of the operation of such software, it has no access to the source codes nor to the authors and can offer only limited advice and assistance. No warranties can be given as to the future support or continuation of this grade of software and these are completely outside the control of IMS.
The following table lists the categories of software supplied by or obtainable from IMS, together with an indication of the support available. Customers should be aware of the restrictions inherent in this table when contemplating the purchase of additional software.
FREIGHTERBASE all Modules (a)
TANKERBASE all Modules (a)
Trident Mail (a)
OPERATING SYSTEMS all types (b)
OTHER THIRD PARTY SOFTWARE all types. .(c)
9.1 The charges under this Agreement shall be based upon the Hardware and the Software installed and are specified in the Second Schedule. IMS reserves the right to alter these charges by giving not less than three months’ notice in writing. These charges presuppose that System Managers are appointed and trained as specified in this Agreement and. notwithstanding any other remedy which may be available to it under this Agreement. IMS reserves the right to increase such charges by giving not less than thirty days’ notice to the Customer if these training requirements are not met.
9.2 The charges specified in the Second Schedule are payable quarterly in advance either nett against VAT invoice or by Standing Order. A pro-rata charge being applied from commencement to the first quarter.
9.3 Any additional charges which may accrue under this Agreement shall be invoiced at the time and shall be due for payment within thirty days.
9.4 Any charges under this Agreement are exclusive of Value Added Tax which shall be paid by the customer at the rate and in the manner for the time being prescribed by law. The Customer will also pay any other Government impost which may be introduced relating to goods or services supplied under this Agreement.
9.5 If the payment due for any quarterly period shall not have been received within seven days of the due date then IMS shall forthwith withdraw the services specified within this Agreement until such payment shall have been received. In all such cases, and in the event of late payment of any other sum due under this Agreement. IMS shall apply an interest charge of two percent for each month or part of a month that the sum or sums remain unpaid.
9.6 The Customer hereby waives any and all existing and future claims and set-offs against any other payment due under this Agreement and agrees to pay the charges and other amounts due under this Agreement regardless of any cross-claim the Customer may have against IMS.
DIAL-UP TELEPHONE LINES
10.1 Where a dial-up modem is to be installed in respect of the services offered in Clause 4.3 above the Customer shall be responsible for all actions and charges relating to the installation of a suitable telephone line.
10.2 In order to ensure security of the System, the modem to be installed should be of the auto-dial type and should be inhibited from answering incoming telephone calls. Outgoing call charges shall be borne by the Customer.
Combined Service Agreement Contd/…
11.1 Each parry shall keep confidential any information obtained from the other in connection with this Agreement and shall not divulge the same to any third party without consent of the other in writing. Each party agrees to inform its staff of the existence and relevance of this Clause. The provisions of this Clause shall not apply to any information in the public domain (otherwise than breach of this Clause) or to information obtained from a third party who is free to divulge the same.
12.1 Either party shall have the right to terminate this Agreement forthwith if the other party is in fundamental breach of these conditions including, but not limited to. non-payment of charges and fails to remedy such breach within thirty days of receipt of notification thereof in writing. Such termination shall be without prejudice to any rights which shall have accrued to either party under this Agreement and shall not affect the responsibilities of the parties under Clause 11.1 above.
12.2 If the Agreement be terminated under this Clause, the Customer shall pay to IMS all costs and expenses including legal and other fees incurred and all arrears’ of charges or other payments arising in respect of this Agreement and IMS shall have the right to recover forthwith any equipment loaned to the Customer arid ‘the Customer shall thereafter pay for any service required ofrjj^Siat the non-contract rates in force at the time.
13.1 The following provisions set out the entire liability of IMS; (including any liability for the acts and omissions of its employees, agents or sub-con tractors) to the Customer in respect of any breach of its contractual obligations arising under this Agreement or any tortious act or omission including negligence arising under or in connection with the Agreement AND THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THESE PROVISIONS.
13.2 The liability of IMS to the Customer for death or injury resulting from its own negligence or that of Its employees, agents or sub-contractors shall not be limited.
13.3 Subject to the provisions of Clause 13.2 above, the entire liability of IMS shall be limited to an amount not exceeding £250.
13.4 Notwithstanding anything else contained in this Agreement, no liability shall attach to for any direct or indirect consequential loss, damage or injury including loss of use,’profits, contracts or business revenue.
14.1 These terms represent the entire agreement between the Customer andjijJM^iand shall supersede any previous representations or agreements, written or oral, which may have existed between the parties.
15.1 Either party shall have the right to terminate the Contract forthwith if the other party shall become bankrupt or make any arrangement with its creditors or go into liquidation.
16.1 Neither party shall be liable for any delay in performing its obligations under this Agreement if such delay results from circumstances beyond that party’s reasonable control.
17.1 Any dispute or difference arising between the Customer and IMS in connection with or arising out of this Agreement shall be referred to a single’ arbitrator to be agreed between the parties or, failing such agreement, to be nominated by the President for the time being of the British Computer Society on the application of either party and any such reference will be deemed to be submission for arbitration within the meaning of the Arbitration Act 1950 or any statutory re-enactment or amendment thereof for the time being in force.
17.2 No proceedings may be brought by either party in a Court of Law on subject matter falling under arbitration provisions unless arbitration has been concluded. This will not affect the rights of either party under Common or Statutory Law.
18.1 In the event that any of the Terms or conditions of this Agreement shall be deemed invalid, unlawful or unenforceable to any extent, such Term or Condition shall be severed from the body of this Agreement and the remainder thereof shall continue to be valid and enforceable to the fullest extent permitted by law.
19.1 IMS shall be entitled to perform any of the obligations undertaken by it and to exercise any of the rights granted to it under this Agreement through any associated company of ft or through any agents or sub-contractors appointed by it in its absolute discretion for the purposes and any act or omission of any such associated company or agent or sun-contractor shall, for the purpose of this Agreement, be deemed to be the act or omission of IMS
19.2 Except as provided in Clause 19.1 above, this Agreement is personal to the parties and neither of them may. without the written consent of the other, assign or otherwise dispose of any of its rights or assign or otherwise delegate any of its obligations under this Agreement.