TERMS AND CONDITIONS FOR THE RENTAL AND USE OF EQ SOFTWARE
In these terms and conditions (“Conditions”) we set out the terms and conditions on which Integrated Ordering Systems Limited (IOS) t/a EQ Software will supply/rent to you and licence you to use IOS’s “EQ Software” for the generation of quotations and orders for kitchen, bathroom and other furniture appliances (“Software”) and for other purposes. The Conditions constitute the entire contract between IOS and you in respect of such rental and licence and any services supplied by IOS in respect thereof to the exclusion of all other terms and conditions (including any which you may purport to apply under any other document).
1.1 IOS will supply to you the current version of the Software on a CDROM disc embodyinga software protection device (“activation key”) which limits the use of the CD to a single personal computer, together with a reference guide (“Guide”) containing instructions on installation of the Software onto your personal computer
1.2 If you wish to use the Software on additional personal computers IOS will supply oneadditional activation key for each such personal computer at its standard additional charge for such supply.
1.3 If you require assistance in the installation of the Software onto your personal computerIOS will provide this service at a time and place to be agreed between us subject to your paying, in addition to the Rental Fee (defined below), IOS’s standard additional charges in respect of such service.
1.4 If you require basic or advanced training in respect of the use of the Software IOS will provide you with such training at a time to be agreed by IOS subject to you’re paying IOS its standard additional charges in respect of such service.
1.5 IOS’s standard charges at the date of these Conditions are set out in theschedule to these Conditions (“Schedule”) but IOS reserves the right to vary such charges from time to time without notice.
2.1 In consideration of your continued payment of the Rental Fee and conditionally upon your compliance with these Conditions we grant you a non-exclusive licence (“Licence”) to use the Software and Guide during the Term (defined below) on such number of stand alone personal computers as are specified in the Schedule or are subsequently agreed by us for your own internal business use purposes only.
2.2 You undertake not to use the Software on behalf of any other person or business or to permit anythird party to use the Software.
2.3 You will be entitled to make one back up copy for each copy of the Software which islicensed to you for security purposes and you will ensure that such copy bears the proprietary notice of IOS and for the purposes of these Conditions the term “Software” shall apply to any such copy.
2.4 You will not copy the documentation including the User Guide provided together with the Software without the prior written approval of IOS.
2.5 You will keep the Software, and documentation and the User Guide safe and secure and retain them under youreffective control.
2.6 You acknowledge that all intellectual property rights (including without limitation copyright, database right, trade marks, know how and confidential information) in the Software and the Guide belong to and will remain at all times the property of IOS.
2.7 Save to the extent permitted by law you will not alter, modify, adapt or combine withother computer programs the Software nor decompile disassemble or reverse engineer the same nor attempt any such things.
3. Term and Termination
3.1 Subject to the provisions for earlier termination the Licence shall commence on thedate of delivery of the Software to you and continue thereafter while the Rental Fee payments due hereunder are kept up to date.
3.2 For the avoidance of doubt your right to use the Software provided under this agreement shall terminate without notice and with immediate effect if the Rental Fee payments due hereunder are suspended or cancelled.
3.3 IOS will be entitled to terminate the Licence in the event that you:
3.3.1 fail to make any payment which is due under these Conditions; or
3.3.2 if you commit any other breach of these Conditions which breach (if remediable) you fail to remedy within twenty eight (28) days of written notice from IOS to do so.
3.4 In the event of termination of the Licence you will forthwith cease use of the Softwareand remove the Software from your personal computer(s) and return the same and the documentation and User Guide to IOS or (at the option of IOS) destroy the same and certify to IOS in writing that you have done so.
4.1 As part of the consideration for the payment of the Rental Fee (defined below) which youundertake to pay during the Term IOS will provide telephone support between the hours of 9.00am and17.00pm on days when IOS is normally open to business.
4.2 In the event that you find that the Software materially fails to fulfil part of the specification set out in the Guide you must notify IOS promptly and give IOS such information as it reasonably requires to investigate such fault and IOS will use its reasonable endeavours following receipt of such information to rectify any such fault within a reasonable period of time and deliver a corrected version of the Software to you for installation on your personal computer(s).
4.3 During the Term IOS may from time to time supply you with new versions of the Software either by disc or via the internet containing updated information from suppliers with regard to prices and product information which you must install on your personal computer(s) without delay.
4.4 In general it is expected that updates and new versions are user-installable and IOS reserves the right to charge you at its normal rates for site visits or investigativework where no fault exists in the Software or where any fault arises from any misuse of the Software or where the Software has been altered or combined with other software without the prior written consent of IOS or where an out of date version of the Software has been used.
5. Warranties and Liability
5.1 IOS warrants that it is entitled to enter into this licence agreement and that your use of the Software will not infringe any third party copyright, trade secret or patent providing that you promptly inform IOS of any such claim and IOA is given full control and authority to investigate, defend and/or settle such a claim.
5.2 IOS does not warrant that the use of the Software (and Guide) will be uninterrupted or error free but does warrantthat the Software will meet the material functionality described in its documentation Guide.
5.3 IOS does not warrant that the information concerning kitchen furniture appliances and related products contained in the Software will be accurate or up to date and you must at all times independently verify such information directly with the supplier to whom such information relates.
5.4 IOS will use reasonable skill and care in the provision of services and maintenance of the Software in accordance with these Conditions. IOS will use all reasonable efforts to ensure that software, services and pricing data is supplied in the timeframe estimated at the time of the order but shall not be held liable for its failure to do so.
5.5 IOS shall not be liable for the completeness and accuracy of data that is imported from third party applications (including CAD systems, accounting systems and others).
5.6 In the event of a breach of the warranties set out in this condition 5 the sole liability of IOS in respect of such breach will be to use its reasonable endeavours following receipt of notice of such a breach will be to rectify any such breach within a reasonable period of time and (where relevant) deliver a corrected version of the Software and/or data to you for installation on your personal computer(s).
5.7 The express terms of these Conditions are in lieu of all warranties conditions terms and obligations implied by statute common law course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law.
5.8 IOS does not limit its liability for death or injury to persons arising from its negligence. Save as set out in condition 5.6 the liability of IOS whether in contract or tort (including without limitation negligence) or otherwise howsoever arising shall be limited to the amount receivable by IOS under these Conditions during the first twelve months of the Term.
5.9 THELIMIT OF IOS’s LIABILITY IN ANY CIRCUMSTANCES WILL BE THE LICENCE FEES PAID BY YOU AND UNDER NO CIRCUMSTANCES WILL IOS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWSOEVER ARISING INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION OR ANY OTHER PECUNIARY LOSS ARISING FROM (I) THE USE OF THE SOFTWARE, (II) THE NON-AVAILABILITY OF THE SOFTWARE, (III) THE FAILURE TO PROVIDE SUPPORT OR (IV) ERRORS OR OMISSIONS IN THE PRICING DATA PROVIDED.
6.1 You will have sole responsibility for ordering kitchen, bathroom or other furniture, appliances and related products from suppliers and IOS will have no responsibility whatsoever for the accuracy of prices or fulfilment of any such order and does not act as your agent or that of your supplier in respect of any contract of supply.
6.2 You will comply with the Data Protection Act 1998 in respect of any personal data which you hold in connection with the Software.
6.3 You indemnify IOS against all claims costs and expenses arising out of the ordering orsupply of products or services by you provided IOS gives you notice of any such claim within a reasonable period of becoming aware of the same.
7. Rental Fees
7.1 You will pay the Rental Fee specified in the Schedule to IOS on the due date each month by Direct Debit or Standing Order.
7.2 You will pay any additional charges payable in respect of installation services, trainingor the provision of additional activation keys within (30) thirty days of the provision of such services or delivery of the additional activation keys.
7.3 The Rental Fees set out in the Schedule shall be due for a minimum term of 12 months after which they may be cancelled by you at any time upon the provision of not less than 90 days notice of your desire/intention to stop the payments and terminate the right to use the Software in accordance with clause 3 above. IOS reserve the right to collect any shortfall in payments of the Rental Fee for the minimum term.
7.4 All sums payable under these Conditions are exclusive of value added tax which shallbe payable in addition at the time and in the manner for the time being prescribed by law.
7.5 IOS reserves the right to vary the Rental Fee no more than once in each calendaryear on giving you at least ninety (90) days prior written notice of any such variation.
8.1 You undertake to keep confidential the Software and the Guide and any confidential information of IOS disclosed to you in connection with the Licence or under these Conditions and not to disclose the same to any third party save to your employees and agents who need to know the same for the purposes of the Licence and then only on the basis that they are aware of and comply with these obligations of confidentiality.
8.2 The obligations of confidentiality set out in this condition 8 do not apply to informationwhich enters the public domain otherwise than through a breach of this condition 8.
8.3 You are not entitled to assign the Licence or the benefit of these Conditions without the prior written consent of IOS.
8.4 These Conditions supersede all prior agreements understandings and undertakings made between you and IOS and no representation promise or statement made prior to the date of supply of the Software to you shall have any force or effect unless expressly incorporated into these Conditions and no variations shall be binding upon IOS unless made by a written instrument and signed by its duly authorised representative.
8.5 Notwithstanding that the whole or any part of any provision of these Conditions may prove to be illegal or unenforceable the other provisions of these Conditions and the remainder of the provision in question shall remain in full force and effect.
8.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Conditions soas to confer any rights on any third parties.
8.7 These Conditions and the Licence are governed by and construed in accordance withthe Laws of England.