Terms of Use

1. Definitions

1.1 In this Agreement the following phrases shall have the following meanings (unless the context otherwise requires):

“Agreement” means the items, terms and clauses as defined in this document.

“Concurrent Users” means the number of employees of the Licensee who may at any one time be simultaneously using the Program in a single browser session.

“Consultancy Fee” means the consultancy, installation and training fees identified in the Order Schedule

““Consultancy Fee” means (i) the UKGDPR, (ii) the Data Protection Act 2018 as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (as amended) and to the extent that it relates to processing of personal data and privacy; and (iii) all applicable Law about the processing of personal data and privacy.

“Defect” means a failure of the Program to materially meet the functionality set out in its Documentation.

“Documentation” means the user manuals and other documents relating to the Program supplied by the Licensor to the Licensee via the Program.

“GDPR” General Data Protection Regulation ((EU) 2016/679).

“Initial Setup Fee” means the initial setup fee set out in the Order Schedule.

“Intellectual Property Rights” means the copyright, design rights, database rights, patents, trade secrets and know-how (whether or not registered) and applications for any of them and any rights of any such nature anywhere in the world.

“Licence Period” means (subject always to early termination under clause 14 below) the Licence Period set out in the Order Schedule.

“Licensee” means the Licensee identified in the Order Schedule.

“Licensor” means CMIS-UK Limited of 104 Station Parade, Harrogate, England,  HG1 1HQ, UK together with its successors and assignees.

“Order Schedule” means the order schedule attached to and forming part of this Agreement.

“Program” means the object code of the CMIS-UK licensed program(s) named in the Order Schedule including any enhancements and additions to it issued to the Licensee during the Licence Period.

“Support Services” means the support services as specified in clause 10 of this Agreement.

“Total Fees” means the Initial Setup Fee, User Licence Fee and additional fees outlined in the Order Schedule.

“User Licence Fee” means the user licence fee set out in the Order Schedule. The user licence fee is charged on a per user per month basis and may vary as set out in the Special Terms of the Order Schedule. The Licensor reserves the right to increase the User Licence Fee from time to time.

2. Licence and Documentation

2.1 Subject to the payment of the Total Fees, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable licence for the licensee to copy and use the Program for the Licence Period on the terms and conditions of this Agreement. The Licensee shall not sub-license, assign or otherwise transfer the rights granted in clause 2.1.

2.2 The Program is to be used by Licensee for its own internal purposes and the Licensee shall not use the Program on behalf of any third party or operate a software or similar bureau service using the Program.

2.3 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 this Agreement.

2.4 Except for the purposes of interoperability (as defined in Section 50B of the Copyright, Designs and Patents Act 1988) the Licensee shall not disassemble, decompile, or reverse engineer the Program. Information necessary to achieve the interoperability of the Program with other programs is available from the Licensor upon request for a nominal fee.

2.5. The Licensor shall supply the Licensee with 1 (one) copy of the Documentation in either printed or electronic form. At the request of the Licensee the Licensor shall provide additional copies of the Documentation at its then current standard charges.

3. Payment

3.1 Unless otherwise stated in the Order Schedule, the Total Fees shall be invoiced.

3.2 The User Licence Fee shall be paid for any period during which the Licensee licences the Program under this Agreement and are an integral part of the licence. The User Licence Fees shall be due and payable in advance before each anniversary date of this Agreement.

3.3 All sums due under this Agreement are subject to the addition of Value Added Tax at the applicable rate.

3.4 Ongoing support is included in the package, any development work would be dealt with on a case by case basis, discussed with you at the time.

3.5 Time for payment of the User Licence Fee is of the essence. The Licensor will advise the Licensee in writing if payment has not been made within 28 days of the agreed monthly payment date as set out in the Order Schedule. If said payment remains unpaid for a further 14 days the Licensor shall be entitled to suspend the licence, the rights granted and any services to be provided under this Agreement. The Licensor will be entitled to charge a late payment fee of 3% of the User Licence Fee per 30 days late as well as all sums outstanding.

3.6 For Non-Hosted Systems, as noted in the Order Schedule, the responsibility for the licensing of Microsoft SQL Server database required to run the Program are the responsibility of the Licensee.

3.7 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

4. Delivery

4.1 Whilst the Licensor shall use its reasonable endeavours to deliver the Program on the delivery date set out in the Order Schedule, such date is an estimate only and the Licensor shall have no liability for delays beyond its reasonable control

4.2 The Licensee shall have 14 days from the date on which delivery takes place to test the Program and to notify the Licensor of any identified Defects. On notification of any such Defect the Licensor shall endeavour to remedy the Defect and, once such work is complete, deliver the updated version of the Program to the Licensee, whereby the process described in this clause shall be repeated.

4.3 If the Licensor is unable or unwilling to remedy Defects identified by the Licensee within the 14 day window for testing identified above, then the Licensee shall have the right to terminate this agreement.

4.4 Once the Licensee is satisfied that there are no Defects in the Program then it shall communicate its acceptance of the Program to the Licensor in writing. If the Licensee does not communicate its acceptance of the Program to the Licensor in writing it is deemed accepted on the later of 14 days after delivery or 14 days after rectification of a Defect in accordance with clause 4.3.

5. Consultancy Services

5.1 The Licensor shall provide the installation, training and other services set out in the Order Schedule.

5.2 The installation, training and other services set out in the Order Schedule are undertaken on a time and materials basis.

5.3 Additional services which are required by the Licensee will be charged in addition at the Licensors rate set out in clause 3.4.

5.4 All services are charged on a day rate basis; a day being defined as 7.5 working hours and a maximum of 3 hours travelling time. Any part days are charged pro-rata. During standard working hours of 0830 – 1730.

5.5 Unless specified in the Order Schedule, the installation is limited to one production server only and there is no provision for a test/training system which must be ordered separately if required.

6. Warranty

6.1 The Licensor warrants that, provided the Program is operated in accordance with the Licensors’ instructions, the Program will perform in accordance with the specification contained within the Documentation existing at the date of the Program’s delivery.

6.2 The Licensor warrants that the Documentation will provide adequate instruction to enable the staff of the Licensee to make full and proper use of the Program.

6.3 The consultancy and training services provided by the Licensor to the Licensee in respect of the Program will be of the quality to be expected of a supplier in similar trade and of experience and will enable the staff of the Licensee who attend such training to make full and proper use of the Program.

6.4 The Program shall comply with all laws, bye-laws and regulations that may apply and the Licensee shall procure that its staff, agents and contractors do so as well, and the Licensee warrants that it will do nothing that shall cause the Licensee or the Program to be in breach of any applicable laws, bye-laws and regulations.

6.5 The Program will be free from viruses, worms, Trojan horses, cancelbots, and other contaminants and any codes or instructions that may or will be used to access, modify, delete, corrupt, deteriorate, alter or damage any data, files or other computer programs used by the Licensee.

6.6 The Licensor warrants that it has sufficient resources to properly perform its obligations in accordance with the terms of this Agreement and will have sufficient resources to carry out its obligations to the Licensee at all times.

6.7 The Licensor will use only properly trained, competent, experienced staff to perform its obligations under this Agreement.

6.8 In no event shall the Licensor be liable for operational difficulties caused by or arising from the integration of the Program with any third-party equipment or software or any modifications to the Program.

6.9 The Licensor does not represent, nor does it give any warranty, guarantee or undertaking of any kind that the Program is free from errors or mistakes.

6.10 The terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations (including, but not limited to, any implied warranty as to satisfactory quality or fitness for a particular purpose) express or implied by statute, common law, trade usage, course of dealing or otherwise, all of which are hereby excluded to the full extent permitted by law.

7. Copyright

7.1 The Intellectual Property Rights in the Program and Documentation are and shall remain the property of the Licensor and the Licensee acknowledges that it shall gain no title right or interest in the Program or Documentation by virtue of this Agreement.

7.2 The Licensee shall only make such back up or other copies of the Program and the Documentation as are reasonable for the use of the Program in accordance with this Agreement but shall not otherwise be entitled to copy them. The terms of this Licence apply to all copies made of the Program and the Documentation as it applies to the original copies of them as supplied by the Licensor.

7.3 All copies of the Program and the Documentation are the property of the Licensor and licensed to the Licensee for the Licence Period. On termination of this Agreement for any reason all copies of the Program and the Documentation shall be returned immediately to the Licensor at the expense of the Licensee or the Licensee shall provide a certificate signed by a director or other officer of the Licensee confirming the following:

i. that all copies of and reference to the Program have been deleted from any and all computer held files and/or storage.

ii. that the Program has not been loaded or accessed since the date of termination of this Agreement, save for purposes of effecting the terms of this agreement, or backing-up any data owned by the Licensee which may be stored on or by the Program.

iii. that all programs written in the Program have been deleted from any and all computer held files and/or storage and that no such programs have been in existence or use since the date of termination of this Agreement.

iv. that the original Program and Documentation have been irretrievably erased or destroyed and cannot be referred to or accessed in any way.

8. Non-disclosure

8.1 The Licensee agrees that the Program (including, without limitation, its structure, sequence, organisation and screen presentation) and the Documentation are the secret and confidential information of the Licensor and shall not be distributed to external sources without the prior written consent of the Licensor.

8.2 Insofar as it is necessary to disclose aspects of the Program to the Licensee’s employees, such disclosure by the Licensee is permitted on a ‘need to know’ basis and solely to enable such employees to make use of the Program as permitted by this Agreement.

8.3 The Licensee shall take all reasonable precautions to ensure that those persons who, with the Licensee’s consent, have access to the Program and Documentation are aware of and accept these conditions.

8.4 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under this Agreement.

9. The Licensee’s Obligations

9.1 The Licensee shall ensure that:

i. Adequate supervision and control of the use of, and access to, the Program and the Documentation is provided to its employees in accordance with this Agreement and any instructions or advice reasonably given by the Licensor.

ii. the Licensor’s maintenance and support staff shall have full, free, and timely access to the Program either by remote access or visit to the Licensee’s Premises at the request of the Licensor, who shall make all such requests to the Licensee in writing no less than 7 days in advance, with permission from the Licensee not to be unreasonably withheld or delayed.

iii. provision is made for adequate working and storage space and other such facilities as the Licensor may reasonably require and that any common law or statutory requirements relating to a healthy and safe place of work at the Licensee’s Premises are followed by the Licensee.

iv. the Program is not under any circumstances altered, modified, adjusted, or interfered with except by the Licensor’s authorised staff, with the agreement of the Licensor in writing, or as may be permitted by law; and its own trained and experienced staff are available at the Licensee’s premises where faults may include, interface with or be dependent upon the Licensee or third party-supplied hardware or software; and

v. that the terms of the Order Schedule are complete and accurate

9.2 The Licensee shall indemnify the Licensor against all claims from any third party if the Licensee or its agents and employees allow the Program to be altered, adjusted, or interfered with other than provided for under this Agreement, or as may be necessary in order for the Licensee to use the Program for the purposes authorised herein.

10. Support services

10.1 The Licensor shall provide to the Licensee the Support Services commencing from delivery of the Program for the period specified in the Order Schedule. The Support Services relate only to the Program and comprise:

10.2 Fault diagnosis and where feasible recommendations for correction, following the reporting of any problem relating to the Program by telephone by the Licensee to the Licensor. Diagnosis and solution of operational problems will be carried out remotely from the location of the installation of the Program. SLA is 1hr business critical, 24hrs other.

10.3 Reasonable telephone support on the routine use and operation of the Program.

10.4 Reasonable telephone advice and assistance on user procedures and on ideas and methods intended to assist the Licensee in obtaining the best possible use from the Program.

10.5 One copy of any new version of the Program released by the Licensor, including related documentation if appropriate. (Please note that the installation / training which is required for a major new release may be subject to additional charge at our prevailing day rate as set out in clause 3.4. Minor releases are installed using remote support at no additional cost).

10.6 Notification (either in writing or via e-mail or by publication on the CMIS-UK web site) of all major problems and errors experienced by the Licensor and its customers with the Program which relate to its user base generally10.2 The Support Services do not extend to any defects or errors resulting from any modifications or enhancements made to the Program by or on behalf of the Licensee or without the Licensor’s consent or resulting from incorrect use of the Program.

10.7 Provision of the Support Services does not imply any guarantee that the Licensor will be able to assist the Licensee in achieving any results which are not technically possible.

10.8 Any support and maintenance services which are outside the scope of this Agreement will, at the Licensee’s request and the Licensor’s option, be provided at the Licensor’s then standard rates as set out in clause 3.4.

11. Intellectual Property

11.1 The Licensor warrants that the Program and the Documentation does not infringe the Intellectual Property Rights of any third party. The Licensor shall indemnify the Licensee against any damages (including costs) that may be awarded or agreed to be paid in respect of any claim by a third party that the Program, or any use by the Licensee in compliance with the terms of this Agreement, infringes any third party’s Intellectual Property Rights, provided that the Licensee:

i. promptly notifies the Licensor of any such claim.

ii. gives the Licensor the sole conduct of the defence and settlement of any such claim and at no time admits liability; and acts in accordance with the reasonable instructions of the Licensor and gives the Licensor all such assistance as it may reasonably require defending or settle such claim. Note the Licensor in seeking to have sole conduct of the defence and settlement will need to ensure it acts in the best interest of the licensee , and provides an indemnity to the licensee as it has provided for in 11.1

11.2 The warranty in Clause 11.1 does not extend to claims arising directly or indirectly from modifications, upgrades or other amendments made to the Program by or on behalf of the Licensee.

11.3 If the Program infringes any Intellectual Property Rights of any third party, or such infringement is alleged, the Licensor may procure the right of the Licensee to continue to use the Program or to modify or replace the Program to stop such infringement or allegation provided that the Program as modified or replaced substantially meets the requirements of the Documentation. If, after the Licensor has used its reasonable endeavours, the foregoing has not been achieved, the Licensor may end this Agreement immediately by giving 1 month notice to the Licensee, in which case the Licensee shall be entitled to receive a pro-rata refund of all sums paid to the Licensor in advance.

12. Data Protection

12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12.1 is in addition to, and does not relieve, remove, or replace, a party’s obligations under the Data Protection Legislation.

12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Licensor is the data controller, and the Licensee is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

12.3 The Licensee will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Licensor.

12.4 The Licensor will comply with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred to it.

12.5 The Licensor will notify the Licensee without undue delay on becoming aware of a Personal Data breach.

12.6 The Licensor will at the written direction of the Licensee delete or return Personal Data and copies thereof to the Licensee unless required by applicable Data Processing Law to store the Personal Data.

12.7 For details on how the Licensor may store the personal date of the Licensee when using the Licensor’s website, please refer to PRIVACY POLICY.

13. Liability

13.1 Nothing in this Agreement shall limit the Licensor’s liability to the Licensee for death or personal injury resulting from the Licensor’s negligence.

13.2 Subject to the other provisions of this Clause 13, the Licensor’s entire liability under or in connection with the Agreement (whether arising from negligence, breach of contract or otherwise) shall not exceed £1,000,000.

13.3 This Agreement sets out the entire agreement and understanding between the parties in connection with is subject matter. In particular, but without limitation, the Licensee warrants and represents that in entering into this Agreement it

13.4 has not relied upon any statement of fact or opinion made by the Licensor, its officers, servants or agents which has not been included expressly in this Agreement

13.5 Notwithstanding Clause 13.2 the Licensor shall not be liable to the Licensee or any other person for or in respect of:

i. Loss of profits

ii. Loss of sales or business.

iii. Loss of agreements or contracts.

iv. Loss of anticipated savings.

v. Loss of use or corruption of software, data, or information.

vi. Loss of or damage to goodwill.

vii. Indirect or consequential loss.

14. Termination

14.1 Either party may terminate this Agreement on not less than three months’ notice to the other , save that such notice shall expire at the end of the first Licence Period set out in the Order Schedule and subsequently at the end of the notice period..

14.2 The Licensor may terminate this Agreement immediately by notice if:

i. a resolution is passed, or an order is made for the winding up of the Licensee (otherwise than for the purpose of a bona fide re-construction or amalgamation) or the Licensee becomes subject to an administration order, or a receiver or administrative receiver is appointed over any of the Licensee’s property or assets, or the Licensee is dissolved; or

ii. the Licensee undergoes a change of ownership or control to which the Licensor reasonably objects.

iii. On termination of this Agreement:

iv. The Licensee shall immediately pay to the Licensor all the Licensor’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, the Licensor shall submit an invoice, which shall be payable by the Licensee immediately on receipt.

v. The Licensee shall return anything belonging to the Licensor which has not been fully paid for. If the Licensee fails to do so, then the Licensor may enter the Licensee’s premises and take possession of them. Until they have been returned, the Licensee shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement.

vi. Termination of this Agreement will require full payment of remainder of 12-month initial contract term for user licenses only, based on number of users stated in original signed Agreement.

14.3 Termination of this Agreement will be without prejudice to any accrued rights of either party and will not affect obligations which are expressed not to be affected by expiry or termination of this Agreement.

15. Assignment and Sub-contracting

15.1 On the prior notice and written consent of the licensee the Licensor shall be entitled to sub-contract the performance of any of its obligations under this Agreement, and to assign all or any of its rights and obligations under this Agreement.

15.2 This Agreement and the rights granted to the Licensee under this Agreement are personal to the Licensee, which may not without the written consent of the Licensor, assign, mortgage, charge or dispose of all or any of its rights and obligations under this Agreement, or sub-contract or otherwise delegate the performance of any of its obligations under this Agreement.

16. Force Majeure

16.1 Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion and industrial action.

17. Notices

17.1 Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation will be delivered by email.

18. General

18.1 Any delay, forbearance or indulgence by either party in exercising any right, power or remedy under this Agreement shall not operate as a waiver of that right, power or remedy or preclude its exercise at any subsequent time.

18.2 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 the Agreement

18.3 This Agreement may not be amended, modified, varied or supplemented except in writing signed by an authorised signatory of the Licensor and the Licensee.

18.4 This Agreement shall be construed in accordance with English law. The parties hereby submit to the exclusive jurisdiction of the English Courts.

18.5 The Licensor will seek in writing approval from the Licensee to announce the award of this contract in press releases and on its website and list the licensee as a client in its marketing materials such as Company PowerPoint’s and Mailers, and shall not make any such announcement without prior written approval from the Licensee.

18.6 Both parties agree that they shall not, for a period of 12 months after expiry, non-renewal or termination of this Agreement approach the other party’s employee’s whether directly or indirectly with any offers of employment. Each party will hold the other responsible for any losses it incurs due to any breach of this clause.

18.7 The Licensor agrees to provide this Agreement solely in the English language and all functionality, documentation and communication shall be carried out in English. The Licensor agrees to implement the solution described in this Agreement to servers configured in English.

18.8 This Agreement requires that the number of user licenses in place must be retained for the full 12 month initial contract term unless amended, by agreement and in writing, between the Licensee and Licensor.

19. Hosted Solution

19.1 In the event that the Program is provided via a Hosted Service as specified in the Order Schedule, the Licensor shall provide a hosted website including Rubi software, Rubi SQL database and a daily backup (available for download by the Licensee where requested). This means that if the Licensor suffers a total loss of service from our cloud-based servers the Licensor would use a verified hosted solution to provide a seamless service whilst the issue is resolved.

19.2 Under no circumstances will the Licensor be held responsible for any loss arising from loss of internet connectivity or the failure of hardware owned by the Licensee. Under these circumstances, the Licensor will do everything possible to restore service as soon as possible.

19.3 It is the responsibility of the Licensee to download available daily backups.

20. Bespoke Requirements

20.1 Bespoke work requests may be made by the Licensee and, subject to agreement, and a fixed price for the completion of the bespoke work will be provided prior to commencement. The Licensor reserves the right to decline to carry out such works which may affect the overall usage of the system.

Please view our End User Licencing Agreement (EULA) here.