GENERAL TERMS AND CONDITIONS
TERMS AND CONDITIONS
This document forms an agreement between the parties and as may be detailed in any attached Agreement Schedule. The use or ordering of any software, mobile applications or services provided by Dataflair Integrated Business System Ltd constitutes acceptance by the Client of these Terms and Conditions. THESE TERMS AND CONDITIONS APPLY UNLESS THE CUSTOMER HAS SIGNED A SEPARATE AGREEMENT WITH AN ATTACHED AGREEMENT SCHEDULE OF SERVICES WITH DATAFLAIR INTEGRATED BUSINESS SYSTEMS LTD, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN. Dataflair Integrated Business Systems Ltd reserves the right to amend these Terms and Conditions at any time and without notice to the Client.
In these Terms and Conditions the following words have the following meanings assigned to them:
“Dataflair” Dataflair Integrated Business Systems Ltd
"We"/"Our"/”Us” Dataflair Integrated Business Systems Ltd
“The Authors” Dataflair Integrated Business Systems Ltd with whom the Intellectual Property of the Software and Mobile Applications resides.
"You"/"Your" The Client or Customer, person or agent signing this agreement. The company, organisation or individual to whom we supply software, mobile applications, materials or service.
“Client”/”Customer” You the customer, the company, organisation or individual to whom we supply software, mobile applications, materials or service.
"Hardware" Machinery, parts and materials supplied electronic or otherwise used in or as part of the computing process.
“Operating System” Computer software installed upon computer hardware upon which our software and applications are executed and depend.
“Applications / Software" The source programs, compiled computer code of the software, scripts and installation programs being developed or customised by Dataflair for the Client, as may be set out in the attached Schedule or any Specification, including any enhancements and modifications made. Program supplied by us, you or others, which is listed in the attached schedule and agreed as being supported by us.
“Client Contact” A person or persons named by you as our contact and to or through whom we specifically supply support.
“Contract Term” The period of time covered and detailed in the attached Support Schedule and/or our sales invoice within which this contract will remain in force.
“Remote Support” Service provided by us to machines and equipment connected to the Internet to enable our support remotely without the need for travel to your site.
“On-Site” Any place where we provide service as you direct where supported machines and equipment is housed.
“Hosted Services” Any electronic service provided over the Internet specific for the use of the Client and may contain data and/or information deemed to be the property of the Client.
“Software as a Service” Computer code, program or application executed upon your hardware on your premises or our hosted computer hardware to create, delete, manipulate, transmit or receive your information or data.
"Intellectual Property Rights" Copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design, designs, processes, and procedures included or imbedded within software or application, including any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
“Your Content” Your Information or data stored either on your premises or on your service hosted by us.
“Specification” All or any of the following documents: development proposal, cost specification documents, statement of work, quotation or other similar documents supplied to the Client describing the services to be provided by us.
"Acceptance Tests” The tests specified in the Specification and/or such other tests as may be agreed in writing between the Client and Dataflair for the purposes of confirming that the Software operates according to the functional requirements in any Specification.
"Additional Services" Any additional services requested by the Client to be provided by us as set out in the attached Schedule or Specification.
"Annual Support Fee" Our fee, subject to a separate commercial quotation, to be charged for the optional provision of support services to the Client by Dataflair.
"Change Request" A documented request for a change to the Specification or Software or Project Plan or other of the Deliverables made by the Client or by us;
"Confidential Information" Shall include, but not necessarily be limited to, all information which is not publicly known regarding the business, finances, technology, trade secrets, and any other commercially sensitive information of either party regardless of its nature.
"Deliverables /Deployment" Software or applications, documentation and services delivered by us to you the Client in fulfilment of this Agreement or as set out in any Specification and installed upon your hardware or hosted service.
"Project Plan" The timing and sequence of events agreed between the Client and Dataflair for the performance of this Agreement, or as set out in any Specification.
"Payment Schedule" The schedule of payments set out in the attached Schedule.
1. Service Offered
1.1.1 We supply and support computer software and mobile application as documented in this and in any attached schedule.
1.1.2 Support is offered via telephone or Email during the hours 9:00am to 17:00pm Monday - Friday (Exclusive of public holidays as applies to England).
1.1.3 “Remote” support is carried out via the Internet where a suitable Internet communication is available. Where applicable and detailed in the attached schedule.
1.1.4 We shall take action to attempt to resolve a support issue within maximum response time detailed in the attached schedule and failing the discovery of a suitable solution, to report back on the course of action that has been taken. eg: Promotion to Second or Third Line Support.
1.1.5 We may from time to time make discretionary site visits “On-Site” to effect repairs if we feel this more effective, convenient or safer solution to a Remote Support over the Internet. Fixes effected in this manner are at our discretion and may be charged separately and in addition under a Remote Support contract as detailed in the attached schedule. On site work excludes traveling time to and from the site.
1.1.6 Every effort will be made to supply a complete and satisfactory solution to Application and Software support requests. We do not supply any guarantees or warranties in respect of these support requests as in many cases we will be reliant upon others who may equally be unable to supply support warranties.
1.1.7 The Service does not include:
(i) Supply of Consumables or accessories;
(ii) Purchase of any licenses that may be required. This must be done separately;
(iii) Testing on operating systems that are no longer supported by the suppliers;
(iv) Failures caused by misuse of or faulty media;
(v) Electrical/hardware work external to the Software;
(vi) Support for anything outside the project scope and the software specification under this agreement;
(vii) The installation of new or replacement deployments on new or replacement hardware not supplied by us.
1.2 Development Projects
1.2.1 Before the commencement of any software of mobile application project we shall detail and submit to you a Development Project Proposal and Cost Specification which shall specify the services to be performed and the fees payable. You shall notify us immediately if you do not agree with the contents of the Development Project Proposal. All Development Project Proposals and Cost Specification Documents shall be subject to these Terms and Conditions.
1.2.2 We shall provide you the Customer with software development services for the purpose of creating the Software and other Deliverables as detailed in the Specification, in accordance with the terms and conditions of this Agreement.
1.2.3 We shall provide you with the Deliverables when requested subject to full payment having been received for the Deliverables or part of the Deliverables being provided as might be detailed and agreed.
1.2.4 Unless explicitly itemised in the Specification we shall not be responsible for any other services including without limitation hardware and software installation, systems integration, data conversion, data import and training unless specified within the Project Specification.
1.2.5 For the avoidance of doubt, we shall not be responsible under any circumstances for backup and archiving of the Software or of any data used by the Software on computer equipment belonging to the Customer or the Customer’s appointed computer hosting supplier.
1.2.6 We reserve the right to initiate a Change Request if the project is delayed by the failure of you to carry out its obligations under this agreement or if the project is delayed by the acts or omissions of your employee, agent or third party supplier of yours or if the project is delayed by circumstances beyond the reasonable control of Dataflair.
1.2.7 It is hereby acknowledged that by legal precedent computer software inherently contains from time to time defects, faults and difficulties however well developed and supported and acceptance of Deliverables under this Agreement shall not be unreasonably withheld due to minor faults in the Deliverables.
1.2.8 The Customer acknowledges that all and any Deliverables from us to you the Customer or from a third party contracted by us in respect of this Agreement are of specific importance to meetings agreed and scheduled in the Project Plan and accepts full responsibility for any delay in accepting the Deliverables.
1.3 Project Change Control
1.3.1 If either party identifies a requirement for a change to the Specification or to the Software or Project Plan, a Change Request shall be sent to the other party detailing the change requirements. If sent by Dataflair, the Change Request shall state the effect such a change shall have on the Specification, the Project Plan and the Price. If sent by you the Customer, the receipt of the Change Request by us shall constitute a request to us to state in writing the effect such a change shall have on the Specification, the Project Plan and the Price. Dataflair shall use all reasonable endeavours to supply the necessary details within ten working days from receipt of the Change Request or such other period as may be agreed.
1.3.2 Dataflair shall not implement any changes to the Software specified in a Change Request unless the Change Request has been agreed by both of the Parties in writing.
1.3.3 If a Change Request is agreed in writing by both Parties, the change shall then be deemed to form part of the Specification, Software, Project Plan and Price for the purpose of the meaning of these terms in the Agreement.
1.4 Acceptance Tests
1.4.1 It shall be the sole responsibility of the Customer to execute the Acceptance Tests.
1.4.2 The Customer shall accept the Software immediately after the Software has passed the Acceptance Tests and shall sign off the Development Project without delay.
1.4.3 If the Software fails to pass the Acceptance Tests, repeat tests shall be carried out without delay following the release of corrected Software by us until the Software passes the Acceptance Tests.
1.4.4 If at any time you the Customer or any of its appointed agents, contractors or customers under its authority shall commence to use the software or mobile application of the whole or any part of the Software then you shall be deemed to have accepted the Software in its entirety.
1.4.5 If at any time you deploy all or any part of the Software for use by any of its staff, appointed agents, contractors or customers then the Customer shall be deemed to have accepted the Software in its entirety.
1.4.6 If following one month after the delivery of the Software, there are no unresolved fault reports logged you with us that will evidence that the software has not pass the Acceptance Tests then the Customer shall be deemed to have accepted the Software in its entirety.
1.4.7 It shall be the responsibility of the Customer to create suitable Acceptance Test scripts that accurately reflects the Specification and to provide suitable data for the Acceptance Tests. The scripts and data must be made available to us not less than one month prior to the expected commencement date of Acceptance Tests according to the Project Plan.
1.5 Project Representatives and Progress Meetings
1.5.1 Each party shall nominate in writing upon the signing of this Agreement, the person who shall act as its representative for the purposes of this Agreement and who shall be responsible for providing any information which may be required by the other party to perform its obligations under this Agreement.
1.5.2 The parties shall procure that their respective representatives shall meet by physical meeting or conference telephone call, as agreed, at least once a month (or as otherwise may be agreed) between the date of this Agreement and the Planned Acceptance Date to discuss and minute the progress of the Project.
1.5.3 The representative of Dataflair shall maintain a log of issues, risks and actions that affect the project. The representative of the Customer shall exercise due diligence in co-operatively assisting the representative of Dataflair to mitigate risks, resolve issues and complete actions in a timely fashion.
1.6.1 Training can be supplied:
188.8.131.52 on site
184.108.40.206 at our offices
220.127.116.11 third party office/hotel etc at additional cost.
as detailed to the specific requirements.
1.7.1 Production or delivery of any software developments, new or additional software, hardware, operating system or service required supplied by us can only be accepted following the receipt of your written order of authorisation.
1.7.2 Title in any additional hardware or other goods supplied by us shall not pass to you until we receive full payment including all taxes levied upon them.
1.7.3 Title in any software and/or mobile application supplied by us shall not pass to the Client. Dataflair grants a licence to the Client to use the supplied software and/or mobile application detailed in the attached Schedule. This licence is not transferable except under written permission of Dataflair.
2. Our Obligations
2.1.1 We will supply a dedicated service to respond to your requests for support by telephone or email:
Telephone : 0121 399 0040
2.2.1 Consistent with Sections 1 of this document, to supply support in respect telephone, remotely via an Internet connection and on site for hardware support.
2.2.2 Support requests resulting from the acquisition of viruses and/or malicious software are excluded and are chargeable.
2.3.1 Every effort will be made by us to satisfy all support requests made by you to the following:
18.104.22.168 To respond to a support request within maximum time set in the attached Support Schedule.
22.214.171.124 Every effort will be made by us to satisfy all delivery dates and supply made to the supply of hardware, software and other services subject only to the supply service and guarantees given by third party suppliers.
2.4.1 We shall not divulge or allow to be seen by others any application software, computer program source, data information or media relating to the trading business carried on by you without your prior consent in writing.
2.5.1 During the term of this contract we shall not trade directly with a supported client of yours without your prior consent in writing.
2.6.1 Where software, applications or other computer code is written and supplied by us it remains the intellectual property of Dataflair Integrate Business Systems. We will ensure that a copy of the un-compiled source code together with all security passwords and codes be held in safety deposit at the address disclosed in the attached schedule.
2.6.2 To replace the source code stored in escrow on the regular basis as disclosed in the attached schedule with the current released version and revisions together with any access codes and passwords.
2.6.3 We provide that in the event of the demise of the software authors and the failure of any successor to continue to supply the support service hereto detailed elsewhere in this document that a copy of the source code together with any access codes and passwords be made available to you.
3. Your Obligations
3.1.1 Promptly furnish us with such information and documents as we may reasonably request for the proper performance of its obligations under this Agreement.
3.1.2 Ensure that your representative is available as reasonably required by us for the proper performance of its obligations under this Agreement.
3.1.3 Use your best endeavours to co-operate with and assist us to such extent as we may reasonably require to perform our obligations under this Agreement.
3.2.1 Pay to us the full amounts agreed within this document and attached schedules. Any such payment must include the appropriate amount VAT.
3.2.2 Pay to us the full amounts in respect of your written order to supply additional services or goods. Any such payment must include the appropriate amount VAT.
3.3.1 You shall ensure that all hardware is supplied with a clean (free from electrical noise) and stable power supply.
3.3.2 You shall ensure that you provide a safe and suitable accommodation for the efficient functioning of the Software consistent with the Hardware manufacturers’ recommendations.
3.3.3 To ensure that secure and complete local backups are taken of your data, software and system at regular intervals in line with your company policy of a regular scheduled backup and archive history.
3.3.4 As an obligation indemnify us against any claims, including claims by your staff and clients in respect of loss, injury or damage sustained as a result of use of our service, howsoever caused but subject always to the Unfair Contract Terms Act l977 and amendments thereof. Save in respect of death or personal injury resulting from the negligence of ourselves. We shall not be liable for any claim or claims for direct or indirect consequential incidental injury, loss or damage, costs, expenses or charges made by you or any person authorised by you against us whether in contract or in tort including negligence on the part of ourselves arising out of or in connection with any defect in or breakdown or failure of the Service.
3.4.1 You shall be responsible for ensuring that licensing and the conditions of use of the Software complies with any government regulations governing the use of computers and amendments thereto in your trade or industry.
3.4.2 Take all precautions to ensure that your staff and other users of your computer system are fully aware of the dangers of installing software from unknown and untrusted sources. We advise the installation and maintenance of anti-malicious software to protect against the installation of damaging software and we advise also that it is not possible to protect against new or unknown viruses and malicious software or prevent users from ignoring warnings and installing such software. As an obligation indemnify us against any claims, including claims by your staff and clients in respect of loss or damage sustained as a result of acquiring a virus or the installation of such software howsoever obtained that results in the loss of your data from our software.
3.5.1 Any training dates agreed written or by casual agreement as days of training, your trainee will make him/herself available for that day. It is your responsibility to provide us with 24 hours’ notice if a trainee is not available. Additional training days will be charged if this conditions are not met.
4.1.1 Title in any additional hardware or other goods supplied by us shall not pass to you until we receive full payment including all taxes levied upon them.
4.1.2 Title in the software and/or mobile applications and any modification thereto shall remain the property of the authors.
4.1.3 Right in any Licence granted by us to use the software and/or mobile application shall not be effective until we receive full payment including all taxes levied upon them.
4.2.1 It shall be the responsibility of you to ensure that all Software supplied by us or any third party is properly registered and licensed and that all duties fees and charges in connection therewith have been duly paid satisfied or discharged.
4.3.1 The headings in this agreement are for ease of reference only and do not affect the construction of this agreement.
4.4.1 In this agreement the singular includes the plural, the masculine includes the feminine and the neuter, and vice versa as the context may require.
4.5.1 Any reference in this licence agreement to a statutory provision shall be construed as a reference to that provision as from time-to-time amended or re-enacted.
4.6.1 If any provision in this agreement is found to be contrary to law or unenforceable for any reason that provision shall be deemed deleted and the remainder of this agreement shall remain in force.
4.6.2 This agreement shall be subject always to the Unfair Contract Terms Act l977 and amends thereto.
4.7.1 These Conditions may be varied only by an express agreement in writing, signed by a Director of Dataflair Integrated Business Systems Ltd.
4.8.1 On the anniversary of this contract, this contract is subject to a review of the attached Schedule of Support and agreement to the relevant charges for the supported hardware and services detailed in the Schedule. The Schedule will then be revised to detail the support supplied to the continuation of the contract.
4.8.2 Any attached Schedule of Support may be varied by you at any time always subject to a revision to the relevant charges for the supported software, mobile application and services detailed in the Schedule.
4.9.1 This agreement shall terminate by either party in writing, giving the period of notice stipulated in the attached schedule.
4.9.2 This agreement shall terminate immediately on our written notice in the event of:
126.96.36.199 You ceasing to use the software, mobile application or our services.
188.8.131.52 You ceasing to carry on business.
184.108.40.206 A complaint being made to us regarding the conduct of you, or performance of your products by any member of the public, which in our reasonable opinion may be prejudicial to us.
220.127.116.11 Any payment due to us from you not being made on the due date.
4.9.3 This agreement shall terminate immediately on your written notice in the event of any changes to our service or behaviour, which you deem unacceptable.
4.10.1 This contract shall automatically renew upon the renewal date detailed in the Schedule of Support. Subject to receipt of a termination notice 4.9
4.10.2 We shall from time to time review and revise these terms and conditions. We shall bring these revisions to your notice and issue revised documents. Your continued receipt of our service following revision shall be deemed as your acceptance.
5.1.1 To pay to us the agreed Support Service charges calculated upon the supplied services or as detailed in any attached Schedule of Support, plus any amounts of VAT levied due upon in this agreement or at the dates and time or periods detailed in any attached Schedule of Support.
5.1.2 To pay to us upon your early termination of this contract any balance amounts due in full settlement to the next contract renewal date or as detailed in any attached Schedule, plus any amounts of VAT levied.
5.2.1 Subject to Sale conditions (section 1.7) to pay any other supply or services not included within this agreement, including charges for travelling, carriage, hardware, software or other supplies, plus any amounts of VAT levied, upon your receipt of our invoice.