KITMAN SOFTWARE LICENCE
1. Operative provisions:
The Company has agreed to grant the Licensee a non-exclusive licence to use the computer software program and associated documentation listed in the Schedule and to provide certain services to the Licensee
In this agreement unless the context otherwise requires:
'ACTUAL DELIVERY DATE' means the actual date that the Licensed Program Materials are delivered by the company in accordance with clause 4 below
'ADDITIONAL CHARGES' means the charges at the Company's rates from time to time for work undertaken on a time and materials basis
'CDPA' means the Copyright Designs and Patents Act 1988
'DELIVERY DATE' means the estimated date for the delivery of the Licensed Program Materials set out in the schedule
'LICENCE FEE' means the monthly/annual fee for the licence
'LICENSED PROGRAM' means the Kitman software program in object code form including any New Release of the same
'LICENSED PROGRAM MATERIALS' means the Licensed Programs and the Program Documentation
'NEW RELEASE' means any improved modified or corrected version of any of the Licensed Programs or Program Documentation from time to time issued by the Company
'PROGRAM DOCUMENTATION' means the instruction manuals user guides and other information to be made available from time to time during this agreement by the Company at its discretion in either printed or machine readable form to the Licensee
'PROGRAM SPECIFICATIONS' means the technical specifications from time to time published by the Company in respect of the Licensed Program
'SERVICES' means the provision of delivery of Technical Support and training services in accordance with respectively clauses 4,5 and 13 below
'SITE' means the address for delivery of the Licensed Program Materials specified by the Licensee and set out in the Schedule
'USE' means the copying or transmission of the Licensed Programs or processing of the instructions contained within the Licensed Programs or (as the case may be) the Program Documentation
2. Grant of licence and provision of services
2.1 The Company in consideration of the payment by the Licensee from time to time of the Licence Fee in accordance with clause 3 below hereby:
2.1.1 grants to the Licensee a non-exclusive licence to Use the Licensed Programs (and where appropriate the Program Documentation) and to possess and refer to the Program Documentation; and
2.1.2 undertakes to the Licensee to provide the Services upon the terms and conditions of this agreement.
3. Licence Fee
3.1 The Licence Fee shall include the cost of:
3.1.1 delivery of the Licensed Program Materials and any New Release thereof to the Site;
3.1.2 the provision of the Services
3.2 The Licence Fee (together with value added tax thereon) shall be levied by the Company monthly in advance with effect from the Actual Delivery Date and shall be payable by the Licensee immediately by direct debit or standing order.
3.3 The Company reserves the right to charge the Purchaser interest in respect of the late payment of any sum due under this agreement (as well after as before judgement) at the rate of 8 per cent per annum above the base rate from time to time of Barclays Bank plc from the due date thereof until payment.
3.4 The licence fee does not cover any (including without prejudice to the generality of the foregoing) material changes modification additions to bolt-ons or rewrites requested by the Licensee such bespoke work will be charged by the Company and on terms to be negotiated and agreed separately to this Agreement.
4.1 The Company shall use all reasonable endeavours to deliver one copy of each of the Licensed Program and the Program Documentation to the Site on the Delivery Date or as soon thereafter as is possible.
4.2 If the Company shall fail to deliver the Licensed Program Materials within 15 days of the Delivery Date the Licensee shall be entitled to either:
4.2.1 without prejudice to any other rights or remedies it may have hereunder or at law terminate this agreement upon written notice to the Company; or
4.2.2 after consultation with the Company specify by notice to the Company such revised delivery date as it shall in its reasonable opinion think fit making time of the essence.
5. Technical Support
5.1 With effect from the Actual Delivery Date and for the duration of this agreement the Company shall provide in respect of each of the Licensed Programs Technical Support within such Response Time as shall be indicated in the Schedule
5.2 Technical Support shall comprise all or any of the following:
5.2.1 advice by telephone, post or email on the Use of the Licensed Program.
5.2.2 information and advice by telephone, post or email on forthcoming New Releases of the Licensed Programs
5.2.3 upon request by the Licensee, the diagnosis of faults in the Licensed Program and the rectification of such faults (remotely or by attendance on Site as determined by the Company) by the issue of fixes in respect of the Licensed Program and the making of all necessary consequential amendments (if any) to the Program Documentation.
5.2.4 the creation and despatch to the Licensee from time to time at the Company's sole discretion of fixes in respect of the Licensed Program.
5.2.5 the creation and despatch to the Licensee from time to time at the Company's sole discretion of a New Release.
5.3 The Licensee shall supply in writing to the Company a detailed description of any fault requiring Technical Support under clause 5.2.3 and the circumstances in which it arose forthwith upon becoming aware of the same.
5.4 Technical Support shall not include the diagnosis or rectification of any fault resulting from:
5.4.1 the improper use operation or neglect of either the Licensed Program Material or the equipment
5.4.2 the modification of the Licensed Program or their merger with any other software
5.4.3 the failure by the Licensee to implement recommendations in respect of or solutions to faults previously advised by the Company
5.4.4 any repair adjustment alteration or modification of the Licensed Program by any person other than the Company without the Company's prior written consent
5.4.5 the Licensee's failure to install a New Release of the Licensed Program within 14 days of the receipt of the same
5.4.6 the use of the Licensed Program for a purpose for which they were not designed
5.5 The Company shall upon request by the Licensee provide Technical Support notwithstanding that the fault results from any of the circumstances described in clause 5.4 above. The Company shall in such circumstances be entitled to levy Additional Charges in the manner set out in clause 5.7 below.
5.6 Without prejudice to clause 5.5 above the Company shall be entitled to levy reasonable Additional Charges in the manner set out in clause 5.7 below if Technical Support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licensee's request to have been unnecessary.
5.7 Additional Charges shall be levied by the Company before commencing such work and shall be payable by the Licensee (together with value added tax thereon) immediately.
6. Property and confidentiality in the licensed program material
6.1 The Licensed Program Materials contain confidential information of the Company and all copyright trade marks and other intellectual property rights in the Licensed Program Materials are the exclusive property of the Company.
6.2 The Licensee shall not:
6.2.1 save as provided for in clause 7 below make back-up copies of the Licensed Program Materials
6.2.2 reverse compile, copy or adapt the whole or any part of the Licensed Program Materials for the purposes of correcting errors in the Licensed Program Material
6.2.3 save solely for the purposes expressly permitted by and in accordance with s.296A(1) CDPA or s.50B(2) CDPA copy adapt or reverse compile the whole or part of the Licensed Program Materials
6.2.4 assign transfer sell lease rent charge or otherwise deal in or encumber the Licensed Program Materials or use the Licensed Program Materials on behalf of any third party or make available the same to any third party or
6.2.5 remove or alter any copyright or other proprietary notice on any of the Licensed Program Materials.
6.3 The Licensee shall:
6.3.1 keep confidential the Licensed Program Materials and limit access to the same to those of its employees agents and sub-contractors who either have a need to know or who are engaged in the Use of the Licensed Programs (including where appropriate the Program Documentation)
6.3.2 reproduce on any copy (whether in machine readable or human readable form) of the Licensed Program Materials the Company's copyright and trade mark notices
6.3.3 notify the Company immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any third party and
6.3.4 without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of the Company in the Licensed Program Materials.
6.4 The Licensee shall inform all relevant employees agents and sub-contractors that the Licensed Program Materials constitute confidential information of the Company and that all intellectual property rights therein are the property of the Company and the Licensee shall take all such steps as shall be necessary to ensure compliance by its employees agents and sub-contractors with the provisions of clause 6.
7. Copying of the licensed program material
7.1. The Licensee shall be entitled to make one back-up copy of each of the Licensed Program. Any such copy shall in all respects be subject to the terms and conditions of this agreement and shall be deemed to form part of the Licensed Program.
7.2. The Licensee shall not be entitled to copy in whole or in part the Program Documentation.
8.1 Subject to the exceptions set out in clause 8.4 below and the limitations upon its liability in clause 10 below the Company warrants that:
8.1.1 its title to and property in the Licensed Program Material is free and unencumbered and that it has the right power and authority to licence the same upon the terms and conditions of this agreement;
8.1.2 it will perform the Services with reasonable care and skill.
8.2 The Licensee shall give notice to the Company as soon as it is reasonably able upon becoming aware of a breach of warranty.
8.3 Subject to clause 8.4 below the Company shall remedy any breach of the warranties set out in clause 8.1.2 above by the provision of Technical Support free of charge.
8.4 The Company shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in clause 5.4 above.
8.5 Without prejudice to the foregoing the Company does not warrant that the Use of the Licensed Programs will meet the Licensee's data processing requirements or that the operation of the Licensed Program (including where in machine-readable form the Program Documentation) will be uninterrupted or error free.
8.6 Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the Licensed Program Materials and the provision of the Services are hereby excluded.
9 Limitation of liability
9.1 The following provisions set out the Company's entire (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Licensee in respect of:
9.1.1 any breach of its contractual obligations arising under this agreement; and
9.1.2 any representation statement or tortious act or omission including negligence arising under or in connection with this agreement.
AND THE LICENSEE'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 9.
9.2 Any act or omission on the part of the Company or its employees agents or sub-contractors falling within clause 9.1 above shall for the purposes of this clause 9 be known as an 'Event of Default'.
9.3 The Company's liability to the Licensee for death or injury resulting from its own or that of its employees' agents' or sub-contractors' negligence shall not be limited.
9.4 Subject to the limits set out in clause 9.5.1 below the Company shall accept liability to the Licensee in respect of damage to the tangible property of the Licensee resulting from the negligence of the Company or its employees agents or sub-contractors.
9.5 Subject to the provisions of clause 9.3 above the Company's entire liability in respect of an Event of Default shall be limited to damages of an amount equal to:
9.5.1 £5,000 in the case of an Event of Default falling within clause 9.4 above; and
9.5.2 in the case of any other Event of Default the aggregate of the Licence Fee paid in the immediately preceding period of 12 months for the site affected up to a maximum of £5,000.
9.6 Subject to clause 9.3 above the Company shall not be liable to the Licensee for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Licensee as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Licensee incurring the same.
9.7 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.
9.8 The Licensee hereby agrees to afford the Company not less than 30 days (following notification thereof by the Licensee) in which to remedy any Event of Default hereunder.
9.9 Except in the case of an Event of Default arising under clause 9.3 above the Company shall have no liability to the Licensee in respect of any Event of Default unless the licensee shall have served notice of the same upon the Company within 12 months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
9.10 Nothing in this clause shall confer any right or remedy upon the Licensee to which it would not otherwise be legally entitled.
10 Intellectual property rights indemnity
10.1 The Company will indemnify and hold harmless the Licensee against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Licensed Program Materials by the Licensee infringes the patent copyright registered design or trade mark rights of said third party (an 'Intellectual Property Infringement') provided that the Licensee:
10.1.1 gives notice to the Company of any Intellectual Property Infringement forthwith upon becoming aware of the same;
10.1.2 gives the Company the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the Company; and
10.1.3 acts in accordance with the reasonable instructions of the Company and gives to the Company such assistance as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents.
10.2 The Company shall reimburse the Licensee its reasonable costs incurred in complying with the provisions of clause 10.1 above.
10.3 The Company shall have no liability to the Licensee in respect of Intellectual Property Infringement if the same results from any breach of the Licensee's obligations under this agreement.
10.4 In the event of an Intellectual Property Infringement the Company shall be entitled to its own expense and option either to:
10.4.1 procure the right for the Licensee to continue using the Licensed Program Materials; or
10.4.2 make such alterations modifications or adjustments to the Licensed Program Materials so that they become non-infringing without incurring a material diminution in performance or function; or
10.4.3 replace the Licensed Program Material with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
10.5 If the Company, in its reasonable judgement is not able to exercise any of the options set out in clauses 10.4.1, 10.4.2 or 10.4.3 above within 14 days of the date it received notice of the Intellectual Property Infringement then the Licensee, without prejudice to any other right or remedies it may have hereunder or at law shall be entitled to terminate this agreement by 7 days notice upon the Company. Upon any such termination the provision of clause 18.3 below but not 17.4 shall apply.
10.6 The provisions of clause 10 above shall not apply to this clause 10.
11. Risk in the licensed program materials
11.1 Risk in the Licensed Program Materials will pass to the Licensee upon the actual delivery date. If subsequently the Licensed Program Materials are (in whole or part) destroyed damaged or lost the Company will upon request replace the same subject to the Licensee paying its then prevailing charges.
12.1 Each of the parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this agreement save that which is:
12.1.1 already in its possession other than as a result of a breach of this clause; or
12.1.2 in the public domain other than as a result of a breach of this clause.
12.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 12 above by its employees agents and sub-contractors.
13.1 The Company shall provide to the Licensee commencing upon the Actual Delivery Date the training services as agreed between the parties
13.1.1 Any additional training services requested by the Licensee shall be provided by the Company for Additional Charges levied on the basis set out in clause 5.7 above.
14. Health and Safety
14.1 The Company shall have no liability to the Licensee in respect of any Health and Safety instructions contained within the Licensed Program the parties hereto acknowledge such information is for guidance only.
15. Duration of agreement
15.1 This agreement shall continue until terminated in accordance with the provisions of clause 17 below.
16. Licensee's representatives
16.1 The Licensee shall notify the Company the identity of the persons at the site who shall act as the sole contact point for the provision by the Company of its Technical Support.
17.1 This agreement may be terminated:
17.1.1 forthwith by the Company if the Licensee fails to make the Licence Fee Payments by the due date.
17.1.2 after an initial period of three months by the licencee giving 1 month notice
17.1.3 forthwith by either party if the other commits any material breach of any term of this agreement (other than one falling within 17.1.1 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same.
17.1.4 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
17.2 Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
17.3 Within 30 days of the termination of this agreement howsoever and by whomsoever occasioned the Licensee shall at the Licensor's sole option either return all copies of the Licensed Program Materials in its possession or control to the Company or shall destroy them and a duly authorised officer of the Licensee shall certify in writing to the Company that the Licensee has complied with its obligations as aforesaid.
18. Force majeure
18.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires strikes insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority.
18.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
18.3 If a default due to an event of Force Majeure shall continue for more than 24 weeks then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of termination of this agreement.
19.1 The waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any proceedings breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
20.1 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within 12 hours) to the address or to the facsimile number of the other party set out in this agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served ( if delivered) at the time of delivery ( if sent by post) upon the expiration of 48 hours after posting and ( if sent by facsimile transmission) upon the expiration of 12 hours after despatch if a confirmation notice is available to prove such transmission.
Notices to the Company:
Facsimile Number 0330 088 1957
21. Invalidity and severability
21.1 If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provision not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
22. Entire agreement
22.1 The Company shall not be liable to the Licensee for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this agreement other than those representations agreements statements or undertakings confirmed by a duly authorised representative of the Company in writing or expressly incorporated or referred to in this agreement.
22.2 The Licensee accepts that the Licensed Program Materials were not designed and produced to its individual requirements and that it was responsible for their selection.
23.1 This agreement shall be binding upon and endure for the benefit of the successors in title of the parties hereto.
24. Assignments and sub-licensing
24.1 The Licensee shall not be entitled to assign or otherwise transfer this agreement nor any of its rights or obligations hereunder nor sub-licence the use (in whole or in part) of the Licensed Program Materials without the prior written consent of the Company.
25. Third Party Rights
25.1 No person who is not a party to this agreement (including any employee, officer, agent, representative or sub-contractor of either party) shall have right to enforce any term of this agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties which agreement must refer to this clause 24.1.
25.2 Even if a person who is not a party to this agreement (including an employee, officer, agent, representative or sub-contractor of either party) has a right to enforce any term of this agreement by virtue of section 1 of the Contracts (Rights of Third Parties) Act 1999, the parties may, notwithstanding section 2 (1) of the Contracts (Rights of Third Parties) Act 1999, vary or cancel this agreement by agreement between them without requiring the consent of such party.
26.1 Save insofar as otherwise expressly provided all amounts stated in this agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable.
27.1 Headings to clauses in this agreement are for the purpose of information and identification only and shall not be construed as forming part of this agreement.
28.1 This agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the non-exclusive jurisdiction of the English courts.
The address of the site location is that notified in the Licensee's application for a licence
Technical Support is offered to the Licensee as an additional feature payable monthly in advance and is offered as follows:
Provision: between the hours of 9am to 5pm Monday to Friday inclusive (excluding Public Holidays).
Response Time: within 4 working hours from receipt of support call.
Facility: support via telephone, facsimile and email to nominated personnel
updates of system fixes
KitMan is provided with an Online User Guide. Additional onsite training is available as agreed between the parties
Free 30 Day Software Trial
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