Terms and Conditions
This statement was last updated on 20 October 2023 .
1.
Software Supply and Licence
Unless specified by a separate contract between B-Plan
Information Systems ltd and the customer the following terms and conditions
will apply.
1.1.
The Customer shall only use
the Software Materials for processing Customer data and strictly for its own
internal purposes as envisaged by this Agreement only and (unless authorised by
B-Plan in writing) shall not permit or attempt to modify, alter, reverse
engineer, disassemble or decompile any part of the Software Materials, except as
permitted by law. The Customer shall
not, without the prior written consent of B-Plan, permit any third party to use
the Software Materials (such consent not to be unreasonably withheld). The
Customer shall not use the Software to host systems or services as envisaged by
this Agreement for any third party. The Customer shall notify B-Plan
immediately in writing if the Customer becomes aware of any unauthorised use of
the whole or any part of the Software Materials by any person. The Customer shall effect and maintain
adequate security measures to safeguard the Software Materials from access or
use by any unauthorised person.
1.2.
The Customer may make only
so many copies of the Software as are reasonably necessary for its operational
security and use and it shall maintain an accurate record of all copies
made. Such copies and the Media shall be
the property of B-Plan and the Customer shall ensure that all such copies
clearly bear B-Plan’s proprietary notice.
No copies may be made of the Software Documentation without the prior
written consent of B-Plan. The Customer
will permit B-Plan to check the use of the Software Materials by the Customer
and its records in respect of the Software at all reasonable times.
1.3.
The Customer may, with the
prior written consent of B-Plan, at its sole expense and responsibility,
combine the Software with other software and/or data to form a combined work
provided that such merger is solely for the purpose of printing or
reporting. The Customer shall indemnify
B-Plan against any loss, liability and/or costs which result from a claim
(threatened or actual) that the use of the Software, in combination with such
other software and/or data, infringes the rights of any third party and any
services which are required to be provided by B-Plan as a result of such
combination shall be deemed to be Additional Services. Upon termination or expiry of this Agreement,
the Customer shall, at its own cost, completely remove the Software from such
combined work.
1.4.
The Customer shall not,
without the prior written consent of B-Plan, permit any third party to take
responsibility for the normal operation of the Software. If the Customer enters
into an arrangement with a third party for the provision such normal operation
B-Plan reserves the right to terminate the Agreement by giving three (3) months
notice in writing.
1.5.
The Customer shall not,
without the prior written consent of B-Plan, enter into any arrangements with
third party suppliers for the provision of Consultancy & Training services
related to the Software supplied as part of this Software Supply Agreement.
1.6.
Unless otherwise agreed,
purchase orders received from the Customer, subsequent to the date of this
Agreement, for further Software will be construed as being governed by the
terms of these terms & conditions unless the superseded by contract between
the customer and B-Plan.
2.
Bespoke Software
2.1.
Charges for Bespoke
Software shall be based on a specification agreed in writing by B-Plan and the
Customer and referred to in the Implementation Services Schedule. If it is found during the course of preparing
such a specification that the Customer’s software requirements vary from those
envisaged at the previous proposal stage, or the preparation of the specification
will be delayed by more than one (1) month by delays in the provision of the
information required from the Customer by B-Plan, then B-Plan reserves the
right to make, and the Customer shall pay, a reasonable charge to compensate
B-Plan for such variation or delay.
2.2.
The terms of the licence for
use of the Bespoke Software shall be (as far as the context permits) as set out
in Clause 5 unless otherwise agreed in writing between B-Plan and the Customer.
3.
Software Maintenance
3.1.
Subject to the Customer
holding a current valid Software Materials Licence and complying with these
terms & conditions, B-Plan shall provide Software Maintenance at the
Location in respect of the Software, for the period(s) and at the Charges
specified in the Software Maintenance Schedule.
3.2.
B-Plan agrees to provide
the Customer with Software Maintenance including (i) Helpdesk Services for
technical advice and the diagnosis and correction of intrinsic errors in the
Software Materials and (ii) the development and provision of New Releases. The Customer shall be deemed to have accepted
a New Release unless any material reason for non-acceptance is notified in
writing to B-Plan within one (1) month of delivery.
3.3.
B-Plan shall provide the
Helpdesk Services by telephone, internet, post, electronic mail or any other
means as may be introduced by B-Plan and as shall be agreed between the parties
in respect of a New Release.
3.4.
The Helpdesk Services will
be available, unless otherwise specified, between 9.00am and 17.30pm (UK Time)
Monday to Friday inclusive excluding all UK Bank and other Public holidays.
3.5.
For so long as the Customer
requires Software Maintenance it shall:
·
Not permit anyone other
than B-Plan to provide any Software Maintenance;
·
Report suspected errors
promptly to B-Plan and co-operate in efforts to provide a remedy including making
skilled staff and necessary facilities (such as, but not limited to,
telecommunications facilities) available to B-Plan free of charge; and
·
Following the delivery of
corrections or technical improvements, test the same before using the Software
as so modified for the processing of live data.
·
Provide a B-Plan approved
VPN or other means of connection for the purpose of B-Plan providing error
diagnosis and correction services remotely.
·
Make back-ups of data on
the System at reasonable intervals to enable the recovery of such data.
·
Use its reasonable
endeavours to ensure that a fully trained member of its staff will review the
nature of all calls for technical advice prior to placing a problem with
B-Plan.
3.6.
Software Maintenance shall
not include services in respect of:
·
Any defects or errors
resulting from modifications to the Software Materials by any person other than
B-Plan;
·
Any version of the Software
Materials other than the most recent New Release and the immediately preceding
New Release unless otherwise agreed in writing with B-Plan;
·
Incorrect or improper use
of the Software Materials or operational error where. Any defects or errors
caused by the use of the Software Materials on or in relation to hardware or
equipment, which is not Approved Equipment.
4.
Loss or damage to the
Customer’s data
4.1.
Unless expressly agreed in
writing by B-Plan, Software Maintenance shall not cover the maintenance of
Bespoke Software.
4.2.
The Customer acknowledges
that certain software items specified in the Software Materials have not been
produced by B-Plan and that B-Plan is reliant on the availability of source
code, technical support and other assistance from the third party suppliers of
such items. B-Plan will make reasonable
endeavours to (i) obtain such source code, technical support and assistance,
and (ii) ensure that Web-based Software contains reasonable security
functions. B-Plan will not be
responsible for any error or failure by such third party suppliers.
4.3.
The Customer shall be
solely responsible for all security management, access control and user
configuration of the System.
5.
Charges and Payment Terms
5.1.
The Customer shall pay the
charges (together with Value Added Tax thereon at the prevailing rate) to
B-Plan within thirty (30) days of the date of invoice unless otherwise
specified in the relevant Schedule at the times specified in the Agreement
Summary.
5.2.
Without prejudice to any
right of termination, in the event that any payment due under an agreement is
not made on the due date (in the absence of genuine error) B-Plan shall (at its
discretion) be entitled to charge interest (both before and after any
judgement) on a day to day basis upon the overdue amount at 3% (three per cent)
above the base rate from time to time of Lloyds () Bank Plc compounded quarterly.
5.3.
Where any payment is
overdue (in the absence of genuine error) B-Plan reserves the right to
repossess any part of the System and the Customer irrevocably agrees to allow
B-Plan to enter upon the premises concerned for such purpose.
5.4.
Any annual charges for
services provided entirely by B-Plan: increase percentage in line with
increases in the average earnings index (all employees) or such other index
substituted from time to time by the Office for National Statistics or its
successors.
5.5.
Annual charges for services
provided by third parties: increase percentage in line with increases in the
third party list prices.
5.6.
B-Plan reserves the right
to charge for any software amendment that is necessary as a result of a
legislative change which is required at short notice and is not part of the
issued product development plan or is a change requested on a regional basis
only or is a change that will require a major rewrite of B-Plan software.
5.7.
Where goods are shipped to
the customer then the cost of providing suitable transport, packaging and
insurance etc. will be added to the charges stipulated in the relevant Schedule
and the Agreement Summary. Where
Services are provided at the location then the cost of providing suitable means
of travel, hotel accommodation and subsistence, etc. for B-Plan staff will be
added to the charges stipulated in the relevant Schedule and the Agreement
Summary.
5.8. B-Plan reserves the right to charge for the provision of any additional services required as a result of the failure by the customer to meet its obligations as set out in the system installation details schedule or customer responsibilities schedule.