SUPPLY OF SOFTWARE TERMS AND CONDITIONS AND SOFTWARE LICENCE
PLEASE REVIEW THESE LICENSE TERMS CAREFULLY.
BY PURCHASING THE SOFTWARE YOU AGREE TO BE BOUND BY THESE TERMS.
This license agreement (License) is an agreement between you (Customer or you) and HOP SOFTWARE LIMITED, a company incorporated in Scotland with company number SC530487 whose registered office is at 138 Atholl Road, Pitlochry PH16 5AG (Supplier).
The Supplier is the entire legal and beneficial owner and licensor of certain software products listed in Schedule 1 and is willing, in consideration of the Licence Fee and certain other obligations as set out below, to license the Customer to use the Software. The Supplier licenses the Software of the basis of this License and does not sell the Software to the Customer. The Supplier shall retain ownership of the Software at all times.
1.1 The definitions and rules of interpretation in this clause apply in the Licence.
Acceptance Date: the date on which the Customer is deemed to have accepted the Software under clause 3.2.
App Market: the Clover online application market at https://www.clover.com/appmarket operated by MarketPlace Merchant Solutions Limited with registered number IE539224 and with registered address at Unit 9, Richview Office Park, Clonskeagh Road, Dublin 14, Ireland.
Fee: the licence fee payable by the Customer to the Supplier for the Software in accordance with the payment arrangements specified within clause 6.
Go Live Date: the date on which the Software becomes available for immediate use by the Customer.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Mobile Application: the HOP software mobile application for Android and IOS which has been developed by the Supplier and incorporates elements of the Software.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Site: the premises from which the Customer carries out its business
Software: the computer programs listed in Schedule 1 and any Maintenance Release which is acquired by the Customer during the subsistence of this licence.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 Unless the context otherwise requires:
(a) words in the singular shall include the plural and in the plural shall include the singular;
(b) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
(c) a reference to one gender shall include a reference to the other genders; and
(d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 In the case of conflict or ambiguity between any provision contained in the body of this licence and any provision contained in the schedules or appendices, the provision in the body of this licence shall take precedence.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.6 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.7 The Schedules and Annexes form part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedules and Annexes.
2. APP MARKET TERMS MAY ALSO APPLY
2.1 The Customer hereby acknowledges that their use of the Software and fees payable therefor may be controlled by the App Market Terms as well as the License.
2.2 Where there is inconsistency between the License and the App Market Terms the latter shall prevail only insofar as the extent to which inconsistency exists.
3. DELIVERY, ACCEPTANCE AND INSTALLATION
3.1 The Supplier shall make the Software available on the App Market and delivery shall take place at such time as the Software becomes available for installation following download.
3.2 The Customer shall be deemed to have accepted the Software on the date the Customer commences operational use of the Software or three days after installation of the Software on the Customer’s computer equipment, whichever is the earlier.
4.1 In consideration of the Fee paid by the Customer to the Supplier in accordance with the clause 6, the Supplier grants to the Customer a non-exclusive licence commencing on and including the date of this licence and terminating on the date of termination of this licence, to use the Software at the Site only.
4.2 In relation to scope of use:
(a) for the purposes of clause 4.1, use of the Software shall be restricted to use of the Software for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by any person other than the Customer or an employee of the Customer or for the benefit of any person other than the Customer).
(b) the Customer may not use the Software other than as specified in clause 4.1 and clause 4.2(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
(c) the Customer shall record the number and location of all copies of the Software supplied to it or copies made by it and take steps to prevent unauthorised copying.
(d) except as expressly stated in this clause 4, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction.
4.3 The Customer may not use any information provided by the Supplier or obtained by the Customer through the use of the Software to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
4.4 The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;
(b) allow the Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this agreement,
without the prior written consent of the Supplier.
4.5 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.
4.6 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
4.7 The Supplier when assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignation.
4.8 The Customer shall:
(a) keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(b) notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
(c) pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 6.8, from such date to the date of payment.
4.9 The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
5. MAINTENANCE RELEASES
The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers. The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
6.1 In accordance with the App Market Terms the operator of the App Market shall act on behalf of the Supplier in collecting all Fees and taxes prior to disbursement to the Supplier. Any reference to payment made by the Customer to the Supplier within this clause 6 shall encompass this payment mechanism. Where the Customer has entered into a licensing arrangement with the Supplier for use of the Software, the Mobile Application will be provided free of charge.
6.2 The Customer shall pay to the Supplier the Fee monthly in advance the first such payment being due and payable on the Go Live Date and each subsequent monthly payment falling due and payable one calendar month after the Go Live Date (or the last day of the calendar month occurring after the Go Live Date if earlier).
6.3 the Customer may terminate this licence at any time after the third anniversary of the Acceptance Date on giving 6 months’ prior written notice of its intention to do so. Any notice to terminate this licence prior to the second anniversary of the Acceptance Date will only be effective if on receipt of the said notice the Supplier has already received payment of such Fee, in full, as would have fallen due and payable by the Customer for the period to i) second anniversary of the Go Live Date; or ii) the date 6 months after service of the notice, whichever date occurs later.
6.4 At any time after the second anniversary of the Go Live Date the Supplier may intimate by written notice to the Customer, no less than one month in advance, any reasonable variation of the monthly licence fee (the Reviewed Fee) as the Supplier deems necessary or desirable at the sole discretion of the Supplier. In the event the Customer does not agree to pay the Reviewed Fee it may terminate this Licence with immediate effect provided it delivers a notice to that effect in writing to the Supplier within 7 days of receipt of the notification of the Reviewed Fee (time being of the essence in respect of delivery of any such notice to the Supplier).
6.5 All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
6.6 Payment of all sums falling due under this Licence by the Customer to the Supplier shall be paid by any of the payment methods specified within the App Market Terms as they may change from time to time.
6.7 If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier’s remedies under clause 11, the Supplier shall have the right to modify or reduce the functionality of or discontinue access to the Software until such time as payment of all due and outstanding Fees has been made.
6.8 Without limiting the Supplier’s remedies under clause 11, the Customer shall pay interest on any overdue amount at the rate of 5% per annum above Bank of Scotland PLC’s base rate from time to time. Such interest shall accrue on a daily basis until payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount.
7.1 Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
7.2 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
8. SUPPLIER’S WARRANTIES
8.1 If, during the term of this licence, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier’s option, do one of the following:
(a) repair the Software;
(b) replace the Software; or
(c) terminate this licence immediately by notice in writing to the Customer (and refund any part of the Fee actually received by the Supplier from the Customer in respect of the period after termination of this Licence),
provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
8.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
8.3 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
8.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
9. LIMITS OF LIABILITY
9.1 Except as expressly stated in clause 9.2:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
provided that this clause 9.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 9.1(a);
(b) the total liability of the Supplier, whether in contract, delict, (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee actually received by the Supplier in the preceding 12 month period of the duration of this Licence, or in the event that a period of twelve months has not elapsed from the commencement of the Licence, the sum equivalent to the Fee payable for 12 months’ in the same terms then currently payable under the Licence; and
(c) the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
9.2 The exclusions in clause 8.4 and clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
9.3 All dates supplied by the Supplier for the delivery or installation of the Software shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery or installation of the Software beyond such approximate dates.
9.4 All references to “the Supplier” in this clause 9 shall, for the purposes of this clause only, be treated as including all employees, subcontractors and suppliers of the Supplier, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
10.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 10.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the
terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
10.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under clause 10.2 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
(d) taking such action as the Supplier may reasonably request to avoid,
10.4 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
(a) procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this licence;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if the Supplier modifies or replaces the Software, the Customer shall have the same rights in respect thereof as it would have had under this Licence had the references to the date of this licence been references to the date on which such modification or replacement was made.
10.5 This clause 10 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to the limitations and provisions set out in clause 9.1.
11. DURATION AND TERMINATION
11.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within  days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(a) to clause 11.1(i)
11.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
11.3 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
11.4 On termination for any reason:
(a) all rights granted to the Customer under this licence shall cease;
(b) the Customer shall cease all activities authorised by this licence;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14. ENTIRE AGREEMENT
14.1 Subject to clause 2, this licence, the schedules and the documents annexed as appendices to this licence or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
14.2 Each party acknowledges that, in entering into this licence it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not).
14.3 Nothing in this clause shall limit or exclude any liability for fraud.
15.1 The Supplier may change these terms in order to reflect changes in law or best practice or to account for additional features which we may be introduced from time to time.
15.2 The Supplier shall give notice of any change in accordance with clause 19.
16.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
16.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17. NO PARTNERSHIP OR AGENCY
17.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
19.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number.
19.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 10.00 am on the second Business Day after posting.
19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.
20. GOVERNING LAW AND JURISDICTION
20.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
20.2 The parties irrevocably agree that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1 Software
• HOP Software Property Management System
• HOP Software Channel Management System
• HOP Software Booking Engine
• HOP Software EPOS Integration
• HOP Software Mobile Application – IOS
• HOP Software Mobile Application – Android
• HOP Software Bill To Room – Clover