1.Definition (1) “C.E.S.” means Complete EPOS Solutions Ltd. (2) "The Customer" means the party on whose computer the software is installed. (3) "The Software" means the C.E.S Game Guide EPOS system. (4) The Software Licence" means the licence between the Customer and C.E.S. for the use of the Software. (5) The “Licence key” is the encrypted code issued by C.E.S that allows the software to function for a time period specified by C.E.S.
2. Grant of Licence (1) C.E.S. hereby grants to the customer, for the period of Licence as defined in section 5, a non-exclusive and non-transferable licence to use the Programs and any relative Operating Manuals for any purpose whatsoever provided that the Client shall not be entitled to sub-licence, sell or disttribute the whole or any part of the Programs or the Operating Manuals. (2) The customer may use one copy of the software on a single computer for each licence key issued (Use means to load into RAM), though copies may be made for backup or archival purposes only. (3) The Customer may install the software on a network computer, such as a server, providing each computer accessing the software has a separate licence (4) The customer may permit any device to access and use the software for the sole purpose of providing support services. (5) CES may allow and/or restrict use of certain features in the software by use of the licence key. (6) C.E.S may refuse to issue a licence key if The Customer has an outstanding debt for services whether within the scope of this contract or not
3. Restrictions (1) The customer may not sub-rent or sub-lease the software under any circumstances (2) The customer may not reverse engineer, decompile or disassemble the software.
4. Intellectual property rights The copyright and all other intellectual property rights of whatsoever nature in the Programs the Operating Manuals the Functional Specification and all other specifications and documentation relating to the Programs (other than in any material provided by the Client) shall be and shall remain vested in C.E.S.. The copyright of any Game Guide data used within the system shall be and shall remain vested in Game Guide Publications. CES may transfer all or any of our rights under this agreement.
5. Period of Licence and Maintenance Service The period of contract shall be determined by the Licence Key Activation Dates, pursuant to the Grant of Licence in section 2. Any use of the software, other than to retrieve historical data, after the expiration of the period of licence is in breach of this contract.
6. Scope of Maintenance Service For the duration of this contract C.E.S. shall provide a full support and maintenance service as defined in Clause 6 hereunder.
(1) C.E.S. undertakes to provide a Telephone Software Support Service: This service will be provided between the hours of 9.30AM to 5:00PM Monday to Friday excluding public holidays.
(2) The Customer will provide sufficient and timely evidence of suspected faults to enable C.E.S. to diagnose the cause.
(3) Any new releases of Software necessary to remedy problems will be issued to the Customer in accordance with the provisions of the Software Licence.
(4) C.E.S. will announce the existence of new versions of the Applications Software within a reasonable period and release the software as resources permit and following quality assurance tests.
(5) C.E.S. reserves the right to release new versions of the applications Software should that be in its own interest and the Customer shall use such new versions within a reasonable time period as agreed by both parties but no longer than 3 months from delivery.
(6) C.E.S. reserves the right to produce enhanced versions of the Software and to offer those enhancements to the Customer at a price to be agreed between the parties
(7) Any service outside the scope of this contract, including enhancements or amendments to the applications software requested by the Customer will be charged for on a time and expenses basis as agreed between the parties.
(8) In the event C.E.S. is requested to help diagnose and/or correct a problem not of C.E.S. own making, and outside the scope of the contract, then C.E.S. shall have the right to make a charge in respect of the time and expenses incurred by it in line with its standard rates current at the time.
7. Charges and Payments (1) Charges shall be due in advance of the start date of the Licence Key pursuant to the Software Licence and are fixed for the period of the licence. Thereafter C.E.S. reserves the right to vary the charges by not more than 7% above inflation by giving one months written notice in advance.
(2) All payments due under this contract shall be made by the Customer prior to the commencement of this contract.
(3) The refund of any monies after early termination of this contract shall be at the discretion of C.E.S.
(4) All charges payable by the Customer hereunder exclude Value Added Tax. Value Added Tax and/or any other similar tax, which may be imposed from time to time will be applied in accordance with the legislation in force at the tax point date. If any sum payable under this Contract becomes overdue C.E.S. reserves the right to charge interest (on a day to day basis) from the original due date to the date of receipt by C.E.S. of the sum due. The rate of interest shall be five per cent above the Base Rates of the National Westminster Bank PLC in force from time to time.
8. Services to be Provided In addition to the services detailed in clause 6, the support and maintenance service to be provided by C.E.S. shall provide the following:
(1) Monthly supply of Game Guide data in a format to be used within the EPOS system, for those customers who use the Game Guide.
(2) Investigation, diagnosis and use of its reasonable endeavours to correct faults relevant to the Software, formally and promptly reported by the Customer to the C.E.S. support desk, and confirmed in writing.
(3) Distribution of information relating to the Software arising out of faults and/or corrections from reports made by users of the Software other than the Customer.
(4) Supply of updates to the documentation relevant to the Software when available.
(5) Recommendations relevant to the course of action necessary to recover, if possible, from any faults and failure emanating from the Software.
9. Customers Responsibilities (1) Subject to receiving prior notice, the Customer shall provide such reasonable access to the Software and the Computer Equipment or parts thereof as C.E.S. may require to fulfil its obligations under this contract. C.E.S. may work on the Customer's premises only with the authorisation of the Customer. The Customer shall take all reasonable precautions to protect the health and safety of the personnel of C.E.S. and of its subcontractors whilst on the Customer's premises.
(2) The Customer will care for the Software and all parts thereof and will only operate in accordance with the instructions provided by C.E.S. pertaining to the applications software.
(3) The Customer will be responsible for any additional costs including hardware/ software costs, incurred as a result of rectifying any problem caused by misuse of the hardware or software.
(4) The Customer shall be familiar with the operation of the operating system that The Software is hosted on. C.E.S cannot offer support for the operating system, or any other third party software.
10. Liability for Accident and Damage (1) C.E.S. warrants that it will carry out the services within the contract in a timely and professional manner with due care and attention. Any defects in the service shall be notified to C.E.S. within 3 days of the defect occurring.
(2) C.E.S. shall not be liable for any costs claims or damages or expenses arising out of tortuous act or omission or any breach of contract or statutory duty calculated by reference to profits income production or accruals of such costs claims damages or expenses on a time basis.
(3) C.E.S. shall not be liable to the Customer for any loss or damage of whatsoever nature and howsoever caused.
(4) C.E.S. will undertake to rectify any damage caused to software and hardware by themselves as soon as is practically possible and at no cost to the Customer.
11. Confidentiality All trade and professional secrets or other information supplied by either party shall be kept confidential and such supply shall not imply any transfer of property.
12. Time of Performance and Force Majeure Neither party shall be liable to the other for any damages or penalty for delay or for failure to give notice or delay in the performance of its obligations hereunder where such delay is due to any circumstances beyond its control including but not limited to strikes, lockouts, accidents, illness, absence from work, warfare reduction in or unavailability of power at manufacturing plant breakdown of plant or machinery or delays in transportation. In such event the date for the performance of such obligations shall be deemed extended for a period equal to the delay.
13. Breach If either party makes default or commits any breach of its obligations under this contract and (upon receiving written notification from the other of such default or breach) fails to remedy the default or breach within 12 days, or becomes bankrupt (or where the Customer is a partnership, if any partner therein becomes bankrupt) or makes any composition or arrangement with his/its creditors or goes into liquidation, whether voluntary or compulsory (except for the purposes of a bona fide reconstruction), or ceases, or threatens to cease trading, or if it suffers the appointment of a receiver over any of its assets then the other party shall immediately become entitled (without prejudice to its other rights) to terminate this contract forthwith by notice in writing to the other, and recover any outstanding monies due.
14. Contract (1) This contract represents the entire agreement between the parties in respect of the software support. Each party warrants that no representation not recorded in the Schedule has been made which has induced the other to enter this contract.
(2) Headings are for convenience only and shall not effect the construction of the provisions of this contract.
(3) No failure, delay, relaxation or indulgence on the part of either party in this contract shall operate as a waiver of the power or right of either party under the contract or preclude any other or further exercise of such power or right.
(4) The Customer shall not without the prior consent in writing of C.E.S., such consent not being unreasonably withheld or delayed, assign or transfer the contract or the benefits or obligations thereof to any other person.
(5) The waiver by CES of any breach of and term or condition of this contract shall not prevent the subsequent enforcement of such a term or condition.
(6) The invalidity of unenforceability for any reason of any part of this contract shall not prejudice or affect the validity or enforceability of the remainder.
15. Movement of equipment. The customer shall not move the computer equipment to another location without giving CES prior written notice thereof. If the customer decides to move the equipment, CES reserve the right to increase their charges should such a move increase the costs to maintain the software
16. Arbitration If at any time any question, dispute or difference whatsoever arises between C.E.S. and the Customer in connection with this contract, either may be referred by either party to the arbitration of a person mutually agreed upon in writing by the parties hereto or failing such agreements within thirty days to a person appointed by the president of the Law Society. The submission shall be deemed to be a submission to arbitration which the meaning of Arbitration Act 1996 or any statutory modification or re-enactments thereof for the time being in force.
17. Law This contract shall be construed and operate in accordance with the Laws of England and the parties submit to the jurisdiction of the English Courts.
18. Notices Any notice required to be given for the purposes of this contract shall be deemed to have been duly given if sent by first class pre-paid post, by fax or delivered by hand. Any such notice sent to C.E.S. shall be sent to C.E.S., whose head office is at Technology Centre, Wolverhampton Science Park, Wolverhampton, WV10 9RU and if sent to the Customer shall be sent to the address set out on the first page hereof or in either case such other address as may be notified in writing by either party. Any notice sent by first class post shall be deemed to have been served on the addressee 48 hours after the posting thereof. Any notice delivered by hand shall be deemed to be served at the time of delivery. Any notice sent by fax shall be deemed to have been served 12 hours after the despatch thereof.