Standard terms and conditions of contract for the purchase of computer software products

Special terms and conditions of contract for the purchase and use of computer software products

To be used in conjunction with HBC Standard Terms and Conditions of Contract for the Purchase of Goods

Important note:

In the event of any conflict between these Special Terms and Conditions and the Council’s Standard Terms and Conditions of Contract for the Purchase of Goods, the former shall prevail.

1 Definitions

The terms and expressions used in these Special Standard Terms and Conditions for the purchase and use of Computer Software products shall have the meaning set out below:

Term	Meaning
‘Documentation’	Shall mean the manual or manuals and other documents associated with the Program supplied by the Licensor to the Licensee.
‘Equipment’	Shall mean the computer or computers described in Appendix 1 and situated at the location or locations identified in Appendix 1.
‘Euro Compliant’	Means in relation to the Program that it will be able to:- (a) process currency data inputs in the Euro currency; and (b) convert currencies of participating Member States (which adopt the new Euro) from and into Euros at the conversion rates set by the European Council and in accordance with any relevant mandatory requirements which are passed by the European Council from time to time.
‘Licence’	Shall mean this document with its appendices.
‘Licensee’	Shall be as defined in Appendix 1.
‘Licensor’	Shall be as defined in Appendix 1 and shall include the Licensor's legal personal representatives, successors and assigns.
‘Program’	Shall mean the computer program or programs specified in Appendix 1 in object code form only and shall include any replacements, modifications or additions supplied under this Licence.
‘Virus’	Means any code which is designed to harm, disrupt or otherwise impede the operation of the Program, or any other associated hardware, software, firmware, computer system or network, or would disable the Program or impair in any way its operation based on the elapsing of a period of time, exceeding an authorised number of copies, advancement to a particular date or other numeral, or that would permit the Licensor or any other person to access the Program to cause such impairment, or which contains any other similar harmful, malicious or hidden procedures, routines or mechanisms which would cause such programs to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with operations, including without limitation, computer programs known as worms or Trojan horses.

2 Licence

2.1 This Contract shall be governed by the Laws of England and shall be subject to the exclusive jurisdiction of the English courts.

3 Charges

3.1 The Licensee shall pay the licence and maintenance charges to the Licensor which are set out in the Appendices. The Licensor shall have the right to vary periodic licence charges or maintenance charges if any, by giving to the Licensee not less that 3 months' written notice in advance of such variation effective at the end of the initial period specified in the Appendices or at any time thereafter. Such variation shall not result in the charges exceeding the Licensor's then current standard scale of charges, or in the absence of a standard scale, such charges as are reasonable in the circumstances.

4 Acceptance

4.1 Where no acceptance tests are specified in Appendix 1, acceptance of the Program shall be deemed to take place on delivery or delivery and installation of the Program and Documentation in accordance with Clause 5.
4.2 Where acceptance tests are specified in Appendix 1, acceptance of the Program shall be deemed to take place when the Program has passed such tests on the Equipment or other equipment as provided under Sub-Clauses 5.2 and 5.3.
4.3 In the event that acceptance tests are delayed due to the acts or omissions of the Licensee, then the Licensor shall give 14 days' notice of its requirement that the tests shall be carried out. If such tests are not then carried out within a further period of 14 days due to the continuing acts or omissions of the Licensee, the Program shall then be deemed to have been accepted on the expiry of such further period.
4.4 If the Licensee uses the Program before acceptance under this Clause, except for testing purposes, then the Program shall be deemed to have been accepted on the date of first use.
4.5 Where the Program fails the acceptance tests, it shall be retested within 30 days and where it fails again the Licensee shall be entitled to reject the Program, whereupon the Licensor shall refund all charges paid under this Agreement at such date, without prejudice to the Licensee's other rights and remedies under this agreement.

5 Use

5.1 The Program may only be used as specified in this Agreement and in Appendix 1.
5.2 The Licensee may use the Program only on the Equipment. If the Program cannot be used because the Equipment or any part thereof is temporarily inoperable, then the Licence will be deemed to apply, without any additional payment to the Licensor but at the Licensee's risk and expense, to the use of the Program on any other compatible equipment until the Equipment becomes operable.
5.3 The Licensee may not transfer the Program permanently to another location or to other equipment without the consent in writing of the Licensor which shall not be unreasonably withheld.
5.4 The Licensee shall follow all reasonable instructions given by the Licensor from time to time with regard to the use of the Program. The Licensee shall permit the Licensor, at all reasonable times, and at the Licensor's expense, to verify that the use of the Program is within the terms of the Licence.

6 Documentation

6.1 The Licensor shall supply to the Licensee those items of the Documentation specified in Appendix 1.
6.2 The Licensee may not make copies of the Documentation without the Licensor's prior written agreement. At the request of the Licensee the Licensor shall provide such additional copies of the Documentation as the Licensee may reasonably require for the normal operation of its business, at the Licensor's then current standard scale of charges.

7 Performance

7.1 The Licensor warrants that:-
- (a) provided it is operated in accordance with the Licensor's instructions, the Program will perform in accordance with the Licensor's published specification and the Documentation existing at the date of delivery
- (b) it has the right to enter into this Licence and to grant the licensee the licence to use the Program and Documentation as provided in this Licence
- (c) the Program is Euro Compliant
- (d) the Program does not contain any Viruses
- (e) the media on which the Program is provided will be free from defects in workmanship and materials during normal use
- (f) the Documentation will describe in detail and in a completely self-contained manner how the Licensee may access and use the Program such that any reader of the Documentation can access, use and maintain all of the functionality of the Program without the need for further instruction be warranted as provided in Appendix 1.

8 Maintenance and support

8.1 A maintenance service, if required, shall be provided as specified in Appendix 2 from the date of acceptance.
8.2 Where the provision of error correction is included in the maintenance service and charge specified in Appendix 2, it shall be conditional upon the Licensee having
- (i) provided adequate information in respect of any malfunction in the Program
- (ii) incorporated all amendments issued by the Licensor, and
- (iii) not otherwise changed the Program.
8.3 Where a new issue or update of the Program and/or Documentation or part thereof is released by the Licensor it shall be installed (if applicable) by the Licensor under the maintenance service and accepted and used by the Licensee except where the Licensee elects to retain and use the superseded issue of the Program, in which case the Licensor shall use its best endeavours to provide a maintenance service on terms to be agreed.

9 Ownership

9.1 Title, copyright and all other proprietary rights in the Program and the Documentation and all parts and copies thereof shall remain vested in the Licensor. The Licensee shall have copyright and other intellectual property rights in any modifications or additions made to the Program, if any of the foregoing are produced by the Licensee or written on a bespoke basis for the Licensee hereunder by the Licensor, which shall vest in the Licensee on their creation. The Licensor shall execute all documents necessary to effect such ownership.
9.2 The Licensee shall follow all reasonable instructions given by the Licensor from time to time with regard to the use of trademarks owned by the Licensor and other indications of the property and rights of the Licensor.

10 Copyright indemnity

10.1 The Licensor shall fully indemnify the Licensee against all damages (excluding consequential damages), costs, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of copyright, patent, design or registered design or other intellectual property right or right of confidence, in consequence of the authorised use or possession of the Program or Documentation supplied by the Licensor under the Licence, subject to the following:-
- (i) the Licensee shall promptly notify the Licensor in writing of any alleged infringement of which it has notice
- (ii) the Licensee must make no admissions without the Licensor's prior written consent
- (iii) the Licensee, at the Licensor's request and expense shall allow the Licensor to conduct any negotiations or litigation and/or settle any claim. The Licensee shall give the Licensor all reasonable assistance. The costs incurred or recovered in such negotiations or settled claim shall be for the Licensor's account.
10.2 If at any time an allegation of infringement of rights is made in respect of the Program, or if in the Licensor's reasonable opinion such an allegation is likely to be made, the Licensor may at its own expense modify or replace the Program so as to avoid the infringement, without detracting from overall performance, the Licensor making good to the Licensee any loss of use during modification or replacement.

11 Termination

11.1 The Licensee may terminate the Licence by giving three months' prior written notice to the Licensor to take effect at the end of the initial period specified in Appendix 1 or such extension of this period as may be agreed or, if no initial period is stated, by three months' prior written notice to the Licensor.
11.2 The Licensor may not terminate the Licence except in the circumstances described in Sub-Clauses 11.3 and 11.4.
11.3 The Licence may be terminated forthwith by either party on written notice if the other party is in material breach of the terms of the Licence and, in the event of a breach capable of being remedied, fails to remedy the breach within 14 days of receipt of notice thereof in writing.
11.4 Either party may terminate the Licence forthwith on written notice if the other party shall become insolvent or bankrupt or make an arrangement with its creditors or go into liquidation.
11.5 Termination of the Licence shall not prejudice any rights of either party which have arisen on or before the date of termination.
11.6 Within seven days following the date of termination the Licensee shall at the option of the Licensor return or destroy all copies, forms and parts of the Program and Documentation and shall certify to the Licensor in writing that this has been done.
11.7 The maintenance service specified in Appendix 2 may be terminated by the Licensee if the Licensor is in significant breach of its obligations under Clause 8 and fails to remedy the breach within 14 days of receipt of notice in writing thereof or such longer period as may be reasonable in the circumstances. The Licence will continue. In the event that the Licensee can demonstrate that such breach has involved it in additional costs then it shall have the right to recover such costs from the Licensor.

12 Training

12.1 The Licensor shall provide instruction in the use of the Program for the Licensee's personnel as specified in Appendix 1. Unless otherwise specified no charge shall be made for such instruction but the Licensee shall be responsible for paying any travel or living expenses.