GENERAL TERMS & CONDITIONS
DEFINITIQNS & INTERPRETATION
In these Conditions, unless the context otherwise requires, the following expressions shall bear the following meanings:
Maintainer – Appy Development Ltd (Company No. 13118893 Armstrong House, Widmerpool Road, Wysall, Nottingham, NG12 5QW) Customer – the client detailed in the Particulars Software Package – shall mean the set(s) of computer programs comprising the software package(s) detailed in the Particulars and any derivations or modified versions thereof together with any related documentation provided by the Maintainer. Equipment – shall mean the items of computer equipment listed in the Particulars. Particulars – the Particulars of Customer Order Form including Hardware & Software Support Agreement and Software Licence attached to these Terms & Conditions. Terms & Conditions – shall mean these general terms and conditions. Agreement – shall mean these Terms & Conditions the maintenance agreement referred to in clause 2 and the software licence referred to in clause 16.
The Customer hereby agrees to enter a maintenance agreement for maintenance of the Equipment and/or for the Software Package (as agreed with the Customer) directly with the Maintainer, or from an agency approved by the Maintainer, to come into force no later than the actual date of delivery of the Equipment and/or the Software Package to the Customer’s premises or a location agreed between the Customer and the Maintainer. The Customer will provide to the Maintainer all Store Information inclusive of all EPoS, Communications and Digital Advertising Data from all stores as part of this agreement in accordance with our Data Policy, which is available on request. The maintenance agreement will cover the maintenance of all equipment specified by the Maintainer to the Customer.
3. FQRCE MAJEURE
Neither the Maintainer nor any of its servants, agents or subcontractors shall be under any liability whatsoever to the Customer for non-performance or delay in the performance of the delegation to be performed by the Maintainer hereunder directly or indirectly caused by or resulting from an Act of God, outbreak of hostility (whether or not war is declared), insurrection, riot, civil disturbance, government act or regulation, fire, flood, accident, theft, strike, lockout or trade dispute restraints or delays affecting shipping or couriers inability or delay in obtaining supplies of the Equipment or suitable or adequate materials or any other event or circumstances whatsoever beyond the control of the Maintainer in relation to the Agreement.
- All dates supplied by the Maintainer for the delivery and installation of the Equipment and/or the Software Package shall be treated as being approximate only. The Maintainer shall not be liable for a delay (including without limitation any delays caused by late delivery of Equipment to the Maintainer by its suppliers) if such dates are not complied With or met.
- Subject to clause 4.1 above the Maintainer shall use its reasonable endeavours subject to its other contractual commitments from time to time prevailing and to the availability of goods and personnel to comply with delivery dates provided by the Maintainer to the Customer.
43 Late payments will be charged as per “The Late Payment of Commercial Debts Regulations 2013” or at 10% whichever is greater.
Risk will pass to the Customer when the Equipment is delivered to the Customer’s premises. The Customer hereby undertakes to insure any Equipment supplied by the Maintainer, whilst it is on the Customers premises, prior to or on the title of the Equipment passing to the Customer.
6.1 Property in the Equipment shall not pass the Customer until
6.1.1 The purchase price of the Equipment has been paid in full, and
- 2 Payment is made to the Maintainer of any sum which is at the date of the Agreement or may thereafter become due or owing from the Customer to the Maintainer.
- until property in the Equipment has passed to the Customer the Customer will hold the Equipment in a fiduciary capacity, will not obliterate any identifying mark on the Equipment or the packaging and will keep the Equipment separate from other goods.
- The Maintainer may at any time after payment for the Equipment has become due exercise the right on demand for itself or its authorised representatives Including any agent or contractor) to enter the Customer’s premises to repossess the Equipment.
- 4 The Maintainer shall have the right to maintain an action against the Customer for the price of the Equipment notwithstanding that property in the Equipment has not passed
6.5 If the Customer sells any such product to a third party before title has passed to the Customer, such sale shall be by Customer as principal and on no account shall the Maintainer be responsible for the terms of such sale. The Customer as principal will require written permission from the Maintainer to enable them to undertake any negotiations or sale(s) of any part thereof of the product.
7.1 Where and to the extent that the Maintainer is requested by the Customer and agrees to advise regarding the choice and suitability of the Equipment and/or Software Package the Maintainer recognises that it will provide such advice to the Customer with reasonable skill and care subject to these Terms & Conditions but the Customer acknowledges that in any other circumstances it is reliant on its own skill and judgment in determining the suitability of the Equipment and Software Package supplied by the Maintainer and the fitness for any general or specific purpose of the Equipment and/or Software Package
7.2 The Customer alone shall be responsible for the accuracy and validity of the information provided to the Customer.
7.3 The Maintainer shall at the cost of the Customer when called upon so to do by the Customer passes on to the Customer so far as it is reasonably able the benefit of all warranty contained in any contract for the supply of the Equipment to the Maintainer.
7.4 Subject to clause 7.1 above and to the maximum extent permissible in law all conditions and warranties which are to be implied by statute or otherwise be general law into the Agreement or relating to the Equipment and/or the Software Package are hereby excluded
7.5 The total liability of the Maintainer to the Customer in respect of all claims pursuant to the Agreement shall be limited to the purchase price for the Equipment and/or Software
Package listed on the attached Customer Order Form
7.6 Notwithstanding anything to the contrary herein contained the liability of the Maintainer to the Customer for. –
7.6.1 death or personal injury resulting from the negligence of the Maintainer
7.6.2 damage suffered by the Customer as a result of a breach by the Maintainer of the condition as to title or the warranty as to quiet possession implied by section 1 of the Consumer
Rights Act 2015,
7.6.3 damage for which the Maintainer is liable to the Customer under part I of the Consumer Protection Act 1987, Shall not be limited
8. CONSEQUENTIAL LOSS
Neither the Maintainer nor any of its servants, agents or subcontractors shall be liable in any manner whatsoever for any indirect or consequential loss, damage or injuries (which expression shall mean pure economical loss of profit loss of business and like loss) suffered by the Customer nor shall they be liable to the Customer for any loss of or corruption to data or programs held or used by or on behalf of the Customer in relation to or arising out of the Agreement.
9.1 All Equipment supplied to the Customer must be paid for on delivery unless subject to an approved and signed lease/rental agreement in which case payment shall be made when acceptance in accordance with clause 10.2 occurs time shall be of the essence in relation to this clause.
- Non-UK mainland Customers will incur additional charges to cover travel and accommodation expenses
9.3 The Maintainer reserves the right to charge interest to the Customer on any sums or other charges payable under this Agreement which are not paid on the due date and such interest may be charged (as well after as before Judgment) at the rate of 3% per annum above the base rate of the Bank of England from time to time subsisting such interest to accrue on daily basis
9.4 If the Customer fails to pay any monies on the due date or does not comply with an obligation imposed upon the Customer under the Agreement then without prejudice to any other right or remedy available to the Maintainer shall be entitled to withhold the supply of any Equipment and/or Software Package to be provided to the Customer by or on behalf of the Maintainer until such payment is made
9.5 All sums quoted under or further to the Agreement are exclusive of Value Added Tax and any other similar tax which WII be added at the rate prevailing as at the date of invoice.
9.6 The Customer shall not be entitled to make a set off or counterclaim in respect of any monies owed by the Customer and shall pay all amounts due under or further to these Terms & Conditions without making a deduction of any kind
10.1 The criterion for acceptance of Equipment shall be the successful operation of the Equipment using the Manufacturers standard test procedure and programs applicable to the Equipment. The Customer may request to be present to witness the acceptance test.
10.2 The Maintainer will consider the Customer to be satisfied with the tests unless written notification to the contrary is received by the Maintainer within three days of such tests having been undertaken. In the case only where the Equipment is subject to a lease/rental agreement the acceptance test shall be documented and the Customers agents or employees shall sign to confirm completion of these tests on the appropriate document.
Installation of Equipment at the Customers site may be provided at the Maintainers prevailing rates or without further charge if the price quoted for Equipment includes installation. Installation will consist of the Maintainer or approved agency personnel successfully completing the Manufacturer’s standard installation Diagnostic Test Programs and Procedures applicable to the Equipment. The Customer shall have the site for the installation prepared prior to the arrival at site of the installation personnel (including without limitation the provision of all necessary electricity, telecommunication facilities consumable materials and apparatus). In the event the Customer has removed Equipment from its original cartons prior to the arrival of the installation personnel, the Customer shall be charged for installation and any repairs necessary to the Equipment at the prevailing rates. Customer acknowledges that it is responsible for preparing and maintaining its premises as a suitable and safe operating environment for the Equipment and/or Software Package
12 SUBSTITUTIONS AND MODIFICATIONS
The Maintainer reserves the right to make improvements substitutions and modifications in the specifications of equipment supplied by the Maintainer provided that such improvements substitutions or modifications will not materially worsen the overall performance of the Equipment and WIII not result in an increase in the list price before VAT.
In the event of the Customer cancelling less than 90 days before scheduled installation, the Customer shall be liable for a fee according to the following schedule.
Days prior to schedule delivery % of total fee Days prior to schedule delivery % of total fee
90-61 5 44-31 20
6045 10 30 or less 30
If the Customer fails to pay any moneys due under the Agreement but within 21 days of the due date or shall commit a serious breach of the Agreement or any other of their obligations to the Maintainer or if any distress or execution shall be levied upon the Customers property or assets, or if the Customer shall make or offer any arrangement or composition with creditors or is made against them, or if the Customer is a limited company and any resolution or petition to wind up the Customers business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented or a proposal is made for a voluntary arrangement within part I of the Insolvency Act or if a receiver of the undertaking, property or assets of any part thereof of the Customer (being a limited company) or any administrator or if the Customer is unable to pay its debts within the meaning section 123 (l) Insolvency Act 1986 shall be appointed, then the Maintainer may without notice.
(i) Suspend, determine or cancel the Agreement or any fulfilled part thereof; and (ii) Stop any goods in transit, and
(iii) Recover any goods from the Customers premises for which payment has not been made in full, without prejudice to any other or outstanding right or remedy which the Maintainer may lawfully enforce or exercise.
15. DISPUTES AND GOVERNING LAW
15.1 Any dispute which may arise between the parties concerning the Agreement shall be determined as follows•-
15.1.1 if the dispute shall be of a technical nature concerning matters of computing or data processing or any similar or related matter then such dispute shall be referred for final settlement to an expert nominated jointly by the Maintainer and the Customer or failing such nomination within 14 days after either of the parties request to the other therefore nominated at the request of either party by the Director for the time being of the British Computer Society such expert shall act as an expert and not as an arbitrator. His decision shall be final and binding on the parties.
15.1.2 In any other case the dispute shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of such Courts for such purpose.
15.2 This Agreement shall be formed by and construed in accordance with English Law
16. SOFTWARE LICENCE
The Maintainer hereby provides the Software Package in accordance with the terms set out in the Software Licence a copy of which is attached hereto
The Maintainer reserves the right at any time to modify the Agreement and to impose new or additional terms or conditions on any Customer or their use of the Software Package/Equipment. If any Customer continues to use the Software Package/Equipment after being notified of any such modification or additional term or condition, any such modification or additional term or condition (as appropriate) shall be deemed to have been accepted by the Customer and shall be effective and be incorporated into the Agreement.
- Clauses, 3, 4, 5, 7, 8, 14 and 15 shall be deemed to be incorporated into the Maintenance Agreement described in clause 2 and into the Software Licence described in clause 16. In the event of a conflict between the various documents forming part of the Agreement then these Terms & Conditions shall prevail.
TERMS & CONDITIONS FOR THE RENTAL OF SCREEN HARDWARE & SOFTWARE
DEFINITIONS & INTERPRETATION
In these Conditions, unless the context otherwise requires, the following expressions shall bear the following meanings
Maintainer — Appy Development Ltd (Company NO. 13118893) Of Armstrong House,Widmerpool Road, Wysall, Nottingham, NG12 5QR,
Agreement – the agreement for the rental of the Hardware and Software made subject to and in accordance with the Particulars and these Conditions. Commencement Date – the Commencement Date set out in the Particulars. Conditions — these terms and conditions for the Rental of Hardware and Software. Customer – the client detailed in the Particulars. Delivery Date – the date specified in the Particulars for the delivery and installation of the Hardware and Software. General Terms & Conditions Appy Development ‘s General Terms & Conditions of Business of the Maintainer attached to these Conditions. Rental Fee – the annual fee for the rental of the Hardware and Software as specified in the Particulars Rental Term -a period of 60 months. Location – the Customer’s premises where the Hardware and Software is to be installed as detailed in the Particulars. Hardware & Software Support Agreement – the agreement for the provision Of Hardware and Software Support to be entered into by the Maintainer and the Customer pursuant to these Conditions. Hardware — the physical equipment detailed in the Particulars. Particulars — Particulars of Hardware and Software Rental detailed on the Customer Order Form attached to these Conditions. Software – the software licensed to the Customer pursuant to the Software Licence. Software Licence – the licence for the use of the Software to be entered into by the Maintainer and the Customer pursuant to these Conditions System – the Hardware and the Software and any part of them. Advertising Revenue — the percentage of revenue the Customer receives for paid advertisements and collection of Epos data pursuant to these Conditions
2. RENTAL OF THE HARDWARE & SOFTWARE
2.1 The Maintainer shall rent the Hardware and Software to the Customer subject to and in accordance with these Conditions
2.2 The Customer may hold and enjoy quiet possession of the Hardware and Software, up to five Advertising Screens, provided it is not in default of any of its obligations under these Conditions
In consideration of the rent of the Hardware and Software by the Maintainer the Customer shall pay the Rental Fee and such other fees as may from time to time become due pursuant to these Conditions
- Unless otherwise stated in the Particulars or agreed in writing an ongoing Screen System Rental, Software Licence & Support Contract fee of £l per week per screen, along with any VAT due thereon, shall be paid by the Customer and collected via deductions made from the Advertising Revenue generated
4.2 Any additional fees and any VAT thereon due pursuant to these Conditions shall be payable in accordance With the General Terms & Conditions unless otherwise agreed in writing by the Maintainer and the Customer.
5. RENTAL TERM
5.1 The Agreement shall commence on the Commencement Date and shall continue for the Rental Term and thereafter unless and until terminated in accordance with the provisions Of these Conditions
52 Following the expiry of the Rental Term the Customer may terminate the Agreement on the service of three months’ notice in writing to the Maintainer.
6. OBLIGATIONS OF THE CUSTOMER
6.1 The Customer shall’
6.1. At all times keep the Hardware and Software at the Location and use it solely for the purpose of displaying advertisements and processing its own data for its own internal business use.
6.1 2 use the Hardware and Software in a skilful and proper manner and in accordance with any operating instructions issued for it and shall ensure that the Hardware and Software are operated and used by properly skilled and trained personnel, and indemnify the Maintainer against any loss incurred as a result of its any failure to do so,
- 1 3 keep the Hardware at all times in good repair, condition, and working order properly serviced and maintained,
6.1 4 not make any alteration, and shall not remove any existing components from the Hardware (unless in the ordinary course of repair and maintenance);
6.1 5 keep or procure to be kept throughout the Rental Term accurate and complete records of all use, maintenance, servicing and repairs caused out to the Hardware,
6.1 6 insure the Hardware and keep the Hardware insured throughout the Rental Term, for its full replacement value against all risks on a comprehensive insurance policy and to ensure that the interest Of the Maintainer is noted on such policy of insurance; keep the Hardware in its own possession at the Location and in compliance with any policy Of insurance affecting the Hardware;
6.1 8 not transfer, sell, assign, sub-license, pledge, or otherwise dispose of, encumber or suffer a lien or encumbrance upon or against any interest in the Hardware and Software,
6.1 9 deliver up the Hardware serviced and maintained and in good repair and working order at the end of the Rental Term or upon earlier determination of the Rental Period to such address as the Maintainer shall notify to the Customer, and notify the Maintainer in writing immediately on the loss of or damage to the Hardware
7. ADVERTISING REVENUE
The Maintainer will pay the Customer 7.5% of all the paid sales floor Advertising Revenue for displaying Digital Advertising, 7.5% of all the paid sales floor Advertising Revenue for the collection of the store(s) EPoS Sales and Communications Data and 5% of all the paid premium back office Advertising Revenue generated from the Customer’s store(s), in return for an exclusive five-year agreement for in-store Digital Advertising
- PROPRIETARY RIGHTS
The Hardware and Software are and shall remain the property of the Maintainer.
9. HARDWARE & SOFTWARE SUPPORT AGREEMENT
It shall be a condition of the rental of the Hardware and Software that the Customer enters into the Hardware & Software Support Agreement.
- SOFTWARE LICENCE
It shall be a condition of the rental of the Hardware and Software that the Customer enters into the Software Licence Agreement.
11. EXPIRY OF THE RENTAL TERM
During the last three months of the Rental Term the Maintainer and the Customer shall conduct negotiations with the intent of agreeing terms for the renewal of the Agreement for a further period and shall use all reasonable endeavours to conclude such agreement at the earliest opportunity
12. REMOTE ACCESS
12.1 The Customer acknowledges that the Maintainer and associated companies shall be entitled to remotely access the System
12.1 1 for the purposes of providing support, downloading Software enhancements and Software bug fixes, and
12.2 to download data stored on the System and to use such data to provide marketing information for third party use
- GENERAL TERMS & CONDITIONS.
13.1 There shall be incorporated into these Conditions the General Terms & Conditions. In the event of any conflict between these Conditions and the General Terms & Conditions then these Conditions shall prevail.
TERMS & CONDITIONS FOR THE SUPPLY OF HARDWARE & SOFTWARE MAINTENANCE & SUPPORT
1 DEFINITIONS & INTERPRETATION
1.1 In these Conditions, unless the context otherwise requires, the following expressions have the following meanings
Agreement – the agreement for the supply of Hardware & Software Maintenance & Support made subject to and in accordance with the Particulars and these Conditions. Business Day – Monday to Friday inclusive but excluding any public holidays. Commencement Date – the commencement date set out in the Particulars. Conditions – these Terms & Conditions for the Supply of Hardware & Software Maintenance & Support. Customer – the client detailed in the Particulars Day Rates – the daily charging rates (together with any service charges) of Appy Development Ltd from time to time. General Terms & Conditions – Appy Development’s General Terms & Conditions of Business which are attached to these Conditions. Hardware – the hardware detailed in the Particulars subject to all (if any) upgrades from time to time. Maintenance – the hardware maintenance services to be provided in respect of the System pursuant to these Conditions. Maintenance & Support Fee – the annual fee specified in the Particulars. Particulars – the Particulars of Hardware & Software Support and Software Licence attached to these Conditions. Maintainer – Appy Development Ltd (Company No. 013118893) Of Armstrong House, Widmerpool Road, Wysall, Nottingham, NG12 5QW. Maintainer’s Training – the training notified to the Customer by The Appy Experience Ltd as being necessary for its staff before they operate the System Service Hours – in respect of Support the hours of 8.00 a.m. to 8.00 p.m. Monday to Sunday (inclusive) and in respect of Maintenance the hours of 9.00 a m. to 5 30 p.m. Monday to Sunday (inclusive) excluding public holidays. Software – the software detailed in the Particulars subject to all (if any) upgrades from time to time. Support – the software support services to be provided in respect of the System pursuant to these Conditions. System – the Hardware and the Software or any part thereof. Term — the Contract Term referred to in clause 5.
2. PROVISION OF HARDWARE SOFTWARE MAINTENANCE & SUPPORT
The Maintainer shall provide the Maintenance & Support to the Customer subject to and in accordance with these Conditions.
In consideration of the provision by the Maintainer of the Maintenance and the Support the Customer shall pay the Maintenance & Support Fee and such other fees as may from time to time become due pursuant to these Conditions
4.1 Unless otherwise stated in the Particulars agreed in writing the Maintenance & Support Fee and any VAT due thereon shall be paid annually by the Customer in twelve equal monthly instalments commencing on the Commencement Date by standing order to the trading account of the Maintainer notified to the Customer from time to time.
4.2 Non-UK mainland Customers will incur additional charges to cover travel and accommodation expenses
4.3 Any additional fees and any VAT thereon due pursuant to these Conditions shall be payable in accordance with the General Terms & Conditions unless otherwise agreed in writing by the Maintainer and the Customer.
4.4 The Maintainer shall be entitled from time to time to increase the Maintenance & Support Fee in accordance with the Retail Prices Index.
4.5 In addition to the right set out in the preceding sub-Condition the Maintainer shall be entitled to increase the portion of Maintenance & Support Fee relating to the Maintenance of the Hardware by 10% in respect of the final 24 months of the Term
4.6 Late payments will be charged as per “The Late Payment of Commercial Debts Regulations 2013” or at 10% whichever is greater.
5. CONTRACT TERM
5.1 Unless otherwise stated in the attached Hardware Support or Software Support Schedule, a Term of sixty months
5.2 The Agreement shall commence on the Commencement Date and shall remain in force for the duration of the minimum Term. Renewal of this Agreement may continue by agreeing terms with the Maintainer.
5.3 The Customer may serve notice to terminate the Agreement on expiry of the minimum Term on the provision of three months’ notice in writing to the Maintainer no later than three months prior to the expiry of the minimum Term
- The Maintainer shall provide remedial maintenance and may provide preventative maintenance from time to time during the Term at its discretion
6.2 The Maintainer shall provide a telephone notification line during the Service Hours by which the Customer shall notify the Maintainer of its requirement for Maintenance
6.3 Subject to sub-Condition 6.4 upon receipt of notification of a requirement for Maintenance the Maintainer shall collect the part or parts of the System requiring Maintenance from the Customers premises and shall provide equivalent replacement part or parts of the System to be used by the Customer for the duration of the Maintenance The Customer shall make the part or parts of the System requiring Maintenance available for collection by the Maintainer the next Business Day after delivery of such replacement part or parts
6.4 The Maintainer may in its discretion carry out repairs to the System at the Customer’s premises
- EXCLUDED MAINTENANCE
7.1 The Maintenance shall not include any service, repair or Maintenance arising out Of.
7.1 .1 The improper use, operation or neglect of the System,
7.1 .2 any exposure of the System to any unusual physical or electrical stress,
7.1 .3 the failure by the Customer to implement recommendations in respect Of or solutions to faults previously advised by the Maintainer
7.1 .4 the use of the System by an individual who has not undergone the Maintainers Training,
7.1 .5 a repair, adjustment„ alteration or modification Of the System by a third party save with the prior written authority Of the Maintainer,
7.1 .6 the use of the System for a purpose for which it was not designed;
7.1.7 electrical work external to the System
7.1 .8 transportation, relocation or reinstallation of the System performed by a third party not previously approved for the purpose by the Maintainer in writing,
7.1 9 failure of electrical power, air conditioning or humidity or Other environmental control
7.1 .10 operator error or omission or failure to follow normal operating procedures,
7.1 11 the failure by the Customer to inform the Maintainer of any faults, errors or failures emanating from the System or its use; or
7.1 .12 component obsolescence or manufacturers failure and at the discretion of the Maintainer.
8. REPLACEMENT PARTS
The Maintainer shall provide all parts and equipment and modifications which the Maintainer deems necessary for maintaining the System for the duration of its life span. All parts will be furnished on an exchange basis. All parts removed for replacement become the property Of the Maintainer.
9.1 The Maintainer shall provide to the Customer:
9.1 1 A telephone support line which is available for urgent problems during the Service Hours. An urgent problem is degradation or failure of the System, defective Software distribution media, or
Software performance inconsistent with documentation. Problems which do not delay or inhibit System operation may at the discretion of the Maintainer be handled by written correspondence
9.1 2 on-site support in the event that a problem cannot be resolved through the telephone support line.
9.1 3 correction of critical errors or assistance to overcome specific Software problems The Maintainer may correct errors by patch Orby new version
9.2 The Maintainer may at its discretion provide support in respect of operator errors that cause corruption or loss of files or data. In such cases the Maintainer reserves the right to make additional charges at the Day Rates and if in the opinion of the Maintainer’s representative the lost or corrupted data is unrecoverable, the Maintainer may at its discretion terminate all work associated ‘Nth such attempted recovery of data and charge for any work undertaken at the Day Rates.
9.3 The Customer will provide to the Maintainer all Store Information inclusive of all EPoS, Communications and Digital Advertising Data from all stores as part of this agreement in accordance with our Data Policy, which is available on request.
10. EXCLUDED SUPPORT
10.1 The Support shall not include the diagnosis and rectification of faults resulting from
10.1.1 The improper use operation or neglect Of the System including without limitation failure to observe the provisions of any instruction or operating manual and/or the directions of the Maintainer,
10.1.2 the improper attachment of any dongle or security module or (where the Software requires the attachment of the same) attempts to use the Software without such dongle or security module;
10.1.3 the modification or alteration of or interference the System or its merger on whole or in part) with any other system
10.1.4 the use Of the System by an individual who has not undergone the Maintainers Training,
10.1.5 the use Of the Software on hardware other than the Hardware or in conjunction with an operating system Other than that approved by the Maintainer,
10.1.6 the failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by the Maintainer,
10.1.7 a repair, adjustment, alteration or modification of the System by any third party save with the prior Mitten authority of the Maintainer,
10.1.8 the use of the System for a purpose for which it was not designed; and
10 1 9 the obsolescence or manufacturers failure of third party applications and entirely at the sole discretion of the Maintainer
11 CUSTOMER’S OBLIGATIONS
11 1 The Customer shall provide all reasonable assistance to the Maintainer to enable the Maintainer to discharge its duties under these Conditions and Without prejudice to the foregoing, the Customer shall
11 .1 .1 Operate the System in accordance with any user manuals, operator manuals or instructions given by the Maintainer in whatever form provided
11 1 2 by prior arrangement, grant access to the Maintainer to its premises and the System at all reasonable times with reasonable working space and adequate facilities including electrical outlets within a reasonable distance of the Hardware in order to allow the Maintainer to provide the Maintenance and the Support;
11 .1 .3 provide full written details of any problem or defect in respect Of which Support or Maintenance is required and the circumstances in which such problem arose and shall submit sufficient information to enable the Maintainer to duplicate the problem
12. STANDARD SOFTWARE UPGRADES
- 1 Software upgrades (if any) shall be made available at the discretion of the Maintainer and provided in a form and at a time to be specified by the Maintainer.
12.2 The Maintainer in its discretion shall determine.
1221 The manner in which any Software upgrades are provided and installed;
12.22 how any Software upgrades are to be documented; and
12.2.3 whether any further training needs to be provided by the Maintainer to the Customers staff in respect of any Software upgrades provided
13. STANDARD HARDWARE UPGRADES
13.1 Hardware upgrades shall only be offered if (in the discretion of the Maintainer) they are:
13.1 .1 Necessary to ensure proper working of the Hardware and/or Software in its original condition irrespective of any upgrades to either subsequently provided supplied; or
13.12 necessary as a consequence of fair wear and tear and the components so worn out have become irreplaceable due to obsolescence or manufacturer failure
14. SUBSTANTIAL UPGRADES
14.1 From time to time the Maintainer may notify the Customer of substantially improved software and hardware available together with further training for the Customers staff and offer the Customer the opportunity to purchase these products. The Customer may also be offered the opportunity of receiving further support and maintenance in respect of these new products
14.2 If the Customer wishes to receive such support and maintenance then it may be provided by the Maintainer on the same terms as contained in these Conditions subject to any variation in the Maintenance & Maintenance & Support Fee payable by the Customer.
15. EXPIRY OF TERM
During the last three months Of the Term the Customer shall conduct negotiations with the intent of agreeing terms for the renewal of these Conditions subject to clause 5 Of these conditions
16. INCORPORATION OF GENERAL TERMS & CONDITIONS OF BUSINESS
16.1 There shall be incorporated into these Conditions the General Terms & Conditions. In the event of any conflict between these Conditions and the General Terms & Conditions then these Conditions shall prevail.
16 2 The Customer acknowledges receipt of the General Terms & Conditions and its acceptance of them
PRODUCT COMPREHENSIVE SERVICE AGREEMENT
DEFINITIONS & INTERPRETATION
In this agreement, unless the context otherwise requires, the following expressions shall bear the following meanings
Maintainer — Appy Development Ltd (Company No. 13118893) of Armstrong House, Widmerpool Road, Wysall, Nottingham, NG12 5QW Customer – the client detailed in the Particulars. Particulars – Particulars of Customer Order Form including Hardware & Software Support Agreement and Software Licence attached to this agreement. General Terms & Conditions – Appy Development Ltd General Terms & Conditions of Business which are attached to this agreement.
This agreement is subject to acceptance of the following terms and conditions in addition to those terms and conditions relating to equipment and services separately provided for or on behalf of the Maintainer, including without limitation clauses 3, 4, 5, 7, 8, 14 and 15 of the General Terms & Conditions copies of which the Customer has seen. In the event of any conflict between this Agreement and the General Terms & Conditions, the General Terms & Conditions shall prevail:-
1 .1 That the product and/or equipment listed at the Product/Equipment Schedule below is not damaged by any person whatsoever and fair wear and tear, determined at the discretion Of the Maintainer, is not excessive
1 .2 That no person or organisation not duly appointed by the Maintainer gains access to any part of the system for any purpose whatsoever causing any damage or escalation of damage or breach of manufacturers/suppliers warranty or any invalidation of the Software Licence Agreement pertaining thereto whether in force or lapsed due to non-payment.
1 .3 That the product, equipment and/or service described in the General Terms & Conditions is supported by a current and fully paid up insurance agreement current at the time of any insurable claim for all insurable risks
1 .4 That the product, equipment and/or service referred to or listed at the Product Equipment Schedule of this agreement and any extension thereto IS limited to use at the original installed address unless expressly provided for by the Maintainer and subject to revised and approved licence and insurance schedules
1 .5 That the Customer has ensured that all period payments related to this agreement are paid in full as they fall due. Where any payments fall beyond their due date, the Maintainer shall have the right to either recover any or all parts of the system to which this and the General Terms & Conditions refer and take any legal action for the recovery of the debt and any interests and legal costs associated with the satisfactory full and final payment in settlement of the outstanding debt and reserve the right to terminate this agreement forthwith. In addition, the Maintainer shall have the rights set out in clause 14 of General Terms & Conditions
1 6 That the customer has ensured that at no time during the term of this or the term of the General Terms & Conditions, permitted the agreement or the equipment to which this agreement relates to be reassigned, promised, transferred or sequestrated in respect of any legal action caused by any other action other than that action taken by the Maintainer or their successors and assigns
Hardware / Software Description(s) / Flue(s) / Model Number(s) / Version Number(s) and Serial Number(s):
HARDWARE & SOFTWARE
As per Hardware Equipment & Software Licence Schedule listed on the Customer Order Form
- Software support for the purposes of this agreement shall be limited to telephone support in respect of genuine software faults and operator errors subject to the terms below and provided always that the Customers staff have attended the appropriate training courses and no untrained Customers staff were involved in generating the operator errors. This agreement and any associated support will not commence until the Customers staff have attended the training courses described in the General Terms & Conditions. The Customers attention is drawn specifically to clause 8 of the General Terms & Conditions and the Customer is reminded that suitable provision for backup of data upon a regular basis is provided for in the operating manual procedures Operator errors that cause corruption or loss of data may be supported in some instances, at the discretion of the Maintainer, however the Maintainer reserves the rights to make additional charges for data recovery in the event that such work is undertaken and in the Maintainers sole opinion the lost or corrupted data is unrecoverable the Maintainer may of its sole discretion terminate all work associated such a procedure and charge for any work undertaken up to that time at the appropriate day rates pertaining at that time plus any service charges and VAT. Notwithstanding any of the aforementioned conditions of this paragraph the Maintainer makes no guarantee whatsoever that any procedures undertaken by them or on their behalf can recover all or part of any lost or corrupted data and associated programs. The Customer will provide to the Maintainer all Store Information inclusive of all EPoS, Communications and Digital Advertising Data from all stores
as part of this agreement in accordance with our Data Policy, which is available on request. The Maintainer reserves the right to exercise the collection, application and disposal of all EPOS Communications and Digital Advertising data
The above Software Support described in Clause 2 Shall not include the diagnosis and rectification of a fault resulting from –
3.1 the improper use operation or neglect of either the Software or the Hardware,
3.2 the improper attachment of any dongle or security module supplied with Software or attempts to use the Software without the attachment of the same,
3.3 the modification or alteration of or interference with the Software or its merger (in whole or in part) with any other software,
3.4 the use of the Software by an individual who has not undergone training with the Maintainer to the required level or is not otherwise reasonably competent in the use of the Software
3.5 the use of the Software on equipment other than the Hardware or in conjunction with an operating system other than that approved by the Maintainer,
3.6 the failure by the Customer to implement recommendation in respect of or solutions to faults previously advised by the Maintainer.
37 a repair, adjustment, alteration or modification of the Software by any third party save with the prior written authority of the Maintainer,
3.8 the use of the Software for a purpose for which it was not designed
- Hardware support for the purposes of this agreement shall be limited to replacing components of the system that fail due to any other causes not related to undue wear and tear, inappropriate uses, meddling by unauthorised personnel or persons not employed by the Maintainer or due to insurable risks and acts of God unless expressly listed in the Product Equipment schedule of this agreement.
- The above Hardware Support described in Clause 4 shall not include a service, repair or maintenance arising out of: –
5.1 the improper use, operation or neglect of either the Software or the Hardware,
52 the improper attachment of any dongle or security module or (where the Software requires the attachment of the same) attempts to use the Software without the attachment of the same,
5.3 the failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by the Maintainer
5.4 the use of the Hardware by an individual who has not undergone training With the Maintainer to the required level or is not otherwise reasonably competent in the use of the Hardware,
5.5 a repair, adjustment, alteration or modification of the Hardware by a third party save with the prior written authority of the Maintainer,
5.6 the use of the Hardware for a purpose for which it was not designed,
57 electrical work external to the Hardware
5.8 transportation or relocation of the Hardware not performed by a third party approved for the purpose by the Maintainer;
5.9 failure of electrical power, air conditioning or humidity or other environmental control,
5.10 operator error or omission or failure to follow normal operating procedures, or
5.11 the failure by the Customer to inform the Maintainer of any faults, errors or failures emanating from the Hardware or its use
- Software upgrades for the purposes of this agreement shall be at the discretion of the Maintainer and provided in a form and at a time to be specified by the Maintainer and installed to, documented and where at the discretion of the Maintainer supported by product training of a specified number of the Customers staff at venues to be advised from time to time.
Hardware Upgrades for the purposes of this agreement shall be directly related to those upgrades necessary to ensure proper working of the original equipment supplied and any upgrade of the same required by virtue of any components that due to fair wear and tear or where the components become irreplaceable due to obsolescence or manufacturer failure and at the sole discretion Of the Maintainer.
- Payments for the services listed at the Product/Equipment Schedule of this agreement are subject to periodic increments to take account of the level of charge to other customers and retail price inflation and any proposed increases will be notified to the Customer prior to implementing the increases at not less than a quarterly (91 days) interval Increases for substantially improved software and subsequent hardware upgrades, installation and training will be offered to the Customer but in the event that the Customer declines any such offer(s) that would require in the opinion of the Maintainer a comprehensive upgrade to the system in line with new practices and/or technology then the Customer can continue with the existing contract unless and until terminated in accordance with the provisions of these Conditions
- This agreement commences upon the date Of Signing and remains in force for a minimum period of five years, unless otherwise stated on the attached Customer Order Form. Renewal Of this Agreement may continue by agreeing terms with the Maintainer the Maintainer will determine any extension or revision of this agreement’s clauses
CONSUMER CREDIT ACT NOTICE
This agreement is unregulated in respect of limited companies or where the value of this agreement exceeds €25,000.00 inclusive of VAT and any supplementary/inflation related surcharges or in the event that the business becomes incorporated into or subsequently owned by a limited company
If your business is not a limited company and the total value of this agreement inclusive of VAT is below and remains throughout this agreement below £25, OOO CO then this agreement may from time to time be subject to government regulations, therefore you are advised to seek legal advice prior to signing. You can obtain similar advice from your local Trading Standards Office and Citizens Advice in respect of hire/lease agreements that fall within this category and are defined as Agreements Regulated by the Consumer Credit Act.
PERSONAL DATA STATEMENT
SOFTWARE LICENCE TERMS & CONDITIONS 1 AGREEMENT
SOFTWARE LICENCE AGREEMENT
Appy Development Ltd (Company No. 13118893) of Armstrong House, Widmerpool Road, Wysall, Nottingham, NG12 5QW) hereinafter referred to as the Maintainer, agrees to grant, and the client detailed in the Particulars hereinafter referred to as Customer, agrees to accept subject to payment by the Customer to the Maintainer of each (annual) software licence fee on the following terms and conditions. a non-transferable and non-exclusive Licence to use the software programs herein delivered in association with and subject to this Licence (“Licensed Programs”)
2 TERMS OF THE LICENCE
2.1 This Licence is effective from the date of receipt by the Customer of the Licensed Programs and the Customer’s acceptance Of the terms and conditions relating to the supply Of Equipment and/or Software Package as attached hereto (“the General Terms & Conditions”) by completed return of the Customer Order Form Confirmation & Acceptance.
2.2 This Licence shall be deemed to incorporate and include all software which is supplied from time to time to the Customer by the Maintainer and whether such further or bespoke software is expressly referred to in the terms and conditions for the supply of Equipment and/or Software Package or not. This clause 2.2 is without prejudice to the Maintainers right to charge the Customer for the supply of such further or bespoke software
2.3 The Customers only right to use the Licensed Programs is by virtue of this Licence and the Customer acknowledges that all intellectual property rights in or relating to the Licensed Programs shall remain the exclusive property Of the Maintainer.
Each program Licence granted under this Licence authorises the Customer to use the Licensed Programs in any machine readable form on one single computer system (hereinafter referred to as System). No right to print or copy, in whole or in part the Licensed Programs is granted except as expressly provided under this Licence
The Maintainer warrants to the Customer that it has the right to grant the Customer the Licence and rights hereby granted in this Licence.
5.1 The Licence hereby granted and the Customers rights to use the Licensed Programs are subject to the following restrictions.-
5.1 1 the Licensed Programs shall be used only by the Customer at the official installed address as detailed in Clause 11 or at such other location as the Maintainer may previously agree in writing,
5.1 2 the Licensed Programs shall be used only on the System supplied by the Maintainer, or such other hardware authorised in writing by the Maintainer such authority not to be unreasonably withheld,
5.1 3 the Customer shall not assign, sub-licence, charge or otherwise dispose of or grant rights over or out Of the Licence hereby granted or the Licensed Programs and shall not attempt to do any such thing,
5.1 4 the Customer shall not copy or reproduce in any way the whole or a part of the Licensed Programs in machine or eye readable form, except that the Customer may maintain one Copy of the Licensed Programs in machine readable form for normal operational security and back-up purposes and this Licence applies to such Copy as it applies to the original Copy of the Licensed programs supplied to the Customer;
5.1 5 the Customer shall not attempt to ascertain or list the source Programs or source code relating to the Licensed Programs; and
5.1 6 the Customer shall not decompile or translate the Licensed Programs into any other computer language nor attempt so to do
For the purpose Of Clause 5, “Copy” shall mean an individual copy in a machine readable form Of One or more of the Programs constituting the Licensed Programs
5.2 The Customer agrees not to use the Licensed Programs, or the associated documentation save in accordance with the terms and conditions of this Licence.
53 Save as provided in clause 5.1 4 the Customer shall only use the single original Copy of the Licensed Programs provided in a machine readable form supplied to the Customer by the Maintainer.
5.4 The Customer shall not interfere with or attempt to circumvent the operation of any dongle or other device whose function is to prevent the unlawful copying or use of the Licensed Programs
The Customer shall not modify alter or in any way interfere with the Licensed Programs or merge the Licensed Programs with other data, programs or systems
7. PROTECTION AND SECURITY
The Customer agrees not to provide or otherwise make available any Licensed Program to any person other than his employees and/or agents without having received prior written consent from the Maintainer.
8.1 Upon the happening of any event described in Clause 9 of the General Terms & Conditions.
8.2 Within one month of the termination of this Licence, the Customer will furnish the Maintainer a letter verifying that through his best effort, and to the best of his knowledge, the original and all copes, in whole or in part, in any form, including partial copies or modifications of the Licensed Programs received or made in connection with such Licence have been destroyed
9. LIMITATION OF LIABILITY
Save as aforesaid Clauses 7.2, 7.4 and 7.5 of the General Terms & Conditions shall apply
10 Associated Agreement(s) NO s Agreement(s) Date(s)
Il Name of approved Licensee
Address approved for use of Licenced Programs
(The official installed address)
- Licence Fee £250.OO PER YEARLY (Included in monthly Software Support fee)
13 Re-Licence Period Interval FIVE YEARS V190213SLTCA