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Business User Licence

Business User App Licence Agreement V1 10/ 07/ 20

Business User App Licence Agreement

This Agreement is made the between Business Users of the App and:

 

Ginspiration Limited, a company incorporated (company registration number: 12728701) under the laws of England and Wales whose registered office at 71-75 Shelton Street, London, WC2H 9JQ (“the Developer”), and 

INDEX

1. Definitions

2. Introduction

3. Grant of Licence, Licence Fee and billing

4. Delivery and Support

5. Covid-19

6.Menu and marketing services

7. Confidentiality

8. Term and Termination

9. Ownership of Intellectual Property Rights in the Bespoke Software

10. Other Restrictions and Assignments

11. Infringement of Third Party Intellectual Property Rights

12. Warranty

13. Limitation of Liability

14. Statutory Obligations

15. Notices

16. Integration

17. Severability

18. Assignment

19. Governing Law

20. Dispute Resolution Procedure

21. Announcements and Publicity

22. No Rights under Contracts (Rights of Third Parties) Act 1999

23. Signature

Whereas:

(A)       The Developer has developed an App for use on smartphones under the brand name “Covid Check-In”;

 

(B)       The UK Government has placed certain monitoring and recording obligations on a number of businesses in relation to retail customers visiting their premises as a condition of them being able to re-open for business following the outbreak of Covid-19; 

 

(C)      The Licensee wishes to use the App to receive data about retail customers who have used the App to check-in at their premises, to use the App to link to its own website, for marketing purposes and for Compliance;

 

(D)      The Developer is willing to grant a license to the Licensee for the use of the App under the terms and conditions set out below. 

 

THE PARTIES AGREE AS FOLLOWS: 

 

1.         Definitions

“Agreement”  means this App Licence Agreement;

 

“App” means an application devised and developed by the Developer for use by the Licensee using the Developer’s Intellectual Property and licensed under the mark “Covid Check-In”;

 

“Check-in” means where the App has been used to record the arrival at or departure from Premises of a Party;

 

“Compliance” means such record keeping requirements as the Department of Health and Social Care imposes on businesses in order that they can re-open their premises to retail customers under the Coronavirus Act 2020, the Public Health (Control of Diseases) Act 1984 and/or the Civil Contingencies Act 2004 or such regulations as have been made or may in the future be made under these Acts of Parliament;

 

“Developer’s Intellectual Property” means the copyright in the source code behind and underpinning the App, the data base rights in the App, the business method and/or computer software patent the Developer has in its Covid Check-In system, its unregistered trademark in the Covid Check-In system, and its goodwill in the App and wireless ordering system;

 

“Device” means a smartphone on which the App will work using a QR code and which includes iphones, ipads and android phones;

 

“Documentation” means any documentation and material published by the Developer for the Licensee relating to its use of and accompanying the App in the form of manuals and function descriptions in printed or electronic form from time to time;

 

“Licence Fee” means £10 per month plus value added tax (VAT) at the applicable rate then prevailing;

 

“Marketing Report” means the report containing the data the Licensee requires as set out in the Schedule to this Licence Agreement;

 

“Party” means a group of people who have visited the Licensee’s Premises to buy the Licensee’s products or services and who have remained on those Premises;

 

“Party Leader” means the person nominated on behalf of the Party to record the arrival and departure of the Party from the Licensee’s Premises;

 

“Premises” means any business premises of the Licensee that are open to the public and which take orders from those customers in relation to drinks, snacks, meals, refreshments, hospitality, accommodation or similar services;

 

“Regulatory Report” means the report containing the data the Licensee requires for Compliance as set out in the Schedule to this Licence Agreement;

 

“Release” means a new release of a current version of the App (e.g. release 5.2 instead of 5.1);

 

“Support” means the support, maintenance and upgrades of the App provided to the Licensee;

 

“Term”  means the period during which this Licence Agreement remains in force being the period set out in condition 5 below;

 

“Territory” means the United Kingdom of Great Britain, Northern Ireland and the Republic of Ireland;

 

“Visit” means a visit by a Party to the Premises of a Licensee; and

 

“Warranty Period” means the period during which the Developer warrants to the Licensee that it has a full unencumbered legal right to licence the App to the Licensee.

 

1.2      The headings in this Agreement are for convenience only and shall not affect its interpretation. 

 

2.         Introduction

2.1      Unless the context otherwise so requires:

(i) references to statutory provisions include those statutory provisions as amended or re-enacted,

(ii)  references to any gender include all genders, and

(iii) words denoting the singular include the plural and vice versa

2.2      In the case of conflict between a provision contained in the body of this Agreement and any provision contained in any Schedule, the provision in the body of this Agreement will take precedence.

 

3.         Grant Of License, License Fee and billing

3.1      In consideration of the obligations undertaken by the Licensee under this Agreement and in consideration of the payment by the Licensee to the Developer of the License Fee specified in Clause 3.2 the Developer grants to the Licensee a non-exclusive and non-transferable license to use store, load, install, execute and/or display the App and any Documentation delivered in connection therewith in the Territory, all subject to the terms and conditions of this Agreement.  The Licensee shall be entitled to use the App on an unlimited number of the Licensee’s Devices and/or servers and/or computers in respect of use of the App by an unlimited number of outlets whether equity or franchised.

3.2      The consideration for the license granted to the Licensee by this Agreement shall be the payment by the Licensee to the Developer of the monthly Licence Fee set out in the Schedule to this Licence Agreement.  The Developer shall provide the Licensee with a VAT invoice electronically.  Unless the Developer has agreed an initial free trial period, the App will not go live in the Licensee’s Premises until the Developer has received payment in full of the Licence Fee.

3.3      Where a Licensee agrees to buy additional premium services from the Developer, it shall pay a fee for those services in addition to the basic Licence Fee as set out in the Schedule to this Licence Agreement.

 

4.         Delivery And Support

4.1      Delivery of the App shall be deemed to have occurred when the Licensee has received the App in the medium, format and specification as required of the Developer by the Licensee.  The Developer shall be responsible for full and proper installation of the App.

4.2      In connection with the delivery of the App, the relevant Documentation may be delivered in either printed or electronic form.

4.3      Support of the App licensed hereunder shall be provided by the Developer and, for the avoidance of any doubt, the Licensee shall be entitled to receive free Releases of the App during the Term.

4.4      Where the Licensee notifies the Developer that the App is not functioning, then the Developer will endeavour to rectify any issue within 2 working days.

 

5.         Covid-19

5.1      The Developer has developed the App to enable the Licensee to be able to fulfil its Compliance obligations.  Where the Licensee has its own Covid-19 policy, the Developer will upload that to the App on its behalf.

5.2      It is the responsibility of the Licensee to ensure that the Party Leader scans the QR code on the Device’s App to Check-in to the Premises.  The Party Leader should enter details of those in the Party on the App so that the Party Leader can identify them at a later date where contact tracing is required.  This remains the case where those in the Party are under the age of 18 years.

5.3      Where appropriate, the Licensee will also ensure that all employees, visitors or contractors (who are not customers in a Party) use the App to Check-in at their Premises.  

5.4      The Developer can only provide accurate reports to the Licensee when all Visits to the Premises are properly recorded by means of scanning the QR code when a Party Checks-in at the Premises.

5.5      In the event that the Licensee is subsequently notified by a Party Leader, or an person or organisation responsible for the control of communicable diseases, that a member of a Party and/or an employee, contractor or visitor has tested positive for the virus Covid-19, then the Licensee will be able to download a Regulatory Report to enable contact tracing to be carried out. 

5.6      It is the Licensee’s responsibility to process any personal data in accordance with the EU General Data Protection Regulation 2016 and/or the Data Protection Act 2018.  The Licensee is responsible for ensuring that it has the requisite authorisation to process personal data with the Information Commissioner’s Office.  Where the Licensee is provided with a Regulatory Report it will be the data controller of the personal data contained in that report.

5.7      In the event that a subsequent virus or illness (other than Covid-19) triggers a public health response of a like scale to Covid-19 such that contact tracing will or may be required by public health authorities, then the terms of this Licence Agreement will apply but if additional reporting requirements are mandated, then the Developer reserves the right to charge the Licensee for those in the same way as any other premium service.

 

 

6.         Menu and marketing services

The Developer will provide a functionality on the App which will enable a Licensee to be able to upload its menu, price list, opening times, service details or wine list to the App. 

6.2      Where the Licensee has an entry policy to its premises, the Licensee will also be able to upload this to the App.

6.3      The Developer will not be responsible for any errors or omissions in any documents uploaded by a Licensee to the App.

6.4      All Licensee’s documents to be uploaded shall confirm to any technical specifications laid down by the Developer to ensure it does not impair the functioning or speed of functioning of the App on Devices.

 

 

7.         Confidentiality

7.1      Each party to this Agreement agrees not to disclose to any third party any confidential information or trade secrets of the other party.  Each party to this Agreement shall take reasonable measures to ensure that confidentiality is maintained, including, without limitation, through confidentiality undertakings or other appropriate measures by employees and/or consultants.  The duty of confidentiality shall not apply to information which is already in the public domain at the time of disclosure.

7.2      The confidentiality obligations set forth herein shall survive any termination of this Agreement.

 

8.         Term and Termination

8.1      This Agreement shall commence on the date specified on page 1 of this licence and shall, unless terminated earlier in accordance with this Condition 8, continue in force in perpetuity subject only to payment of the Licence Fee.

8.2      Either the Licensee or the Developer may terminate this Agreement at any time by serving at 1 months’ prior written notice on the other party.  Where a Licensee serves notice, it will have to pay the Licence Fee for that month and for the one month of its notice period.

8.3      The Licensee may terminate this Agreement immediately on written notice if the Developer fails to perform any of its obligations under this Agreement or if an application for bankruptcy, company reorganization, insolvency, winding up or any other similar procedure is instituted in respect of the Developer. 

8.4      Termination of this Agreement shall not relieve either party to this Agreement from any liability which at the time of such termination had already accrued to that party. 

 

9.         Ownership of Intellectual Property Rights in the Software

9.1      The Developer’s Intellectual Property rights in the App are and will remain at all times the sole and exclusive property of the Developer and the Licensee has no right, title or interest in or to those, except as expressly set forth in this Agreement.  

 

10.      Other Restrictions and Assignments

10.1    This Agreement grants the Licensee the right to use the App for internal purposes only in its outlets.  The Licensee must protect the App and Documentation in a manner consistent with Developer’s rights expressed in this Agreement.  The Licensee may not sublicense, modify, distribute or create derivative works based on the App or any part thereof without the Developer’s consent.

 

11.      Infringement of Third Party Intellectual Property Rights

11.1    The Developer shall indemnify and hold the Licensee harmless against any and all direct damages, losses and reasonable costs and expenses (including without limitation reasonable solicitor’s and counsel’s fees) that may be incurred by the Licensee in respect of any third party action or claim alleging that the App or the Documentation infringes the intellectual property rights of such third party, provided that:

(a)          the Licensee provides the Developer with written notice of any such action or claim;

(b)          the Licensee will permit the Developer to assume and control the defence and settlement of any such action or claim;

(c)          the Licensee will not prejudice the defence of the action or claim.

 

11.2    If the App or the Documentation infringes the intellectual property rights of a third party and such infringement disrupts the Licensee’s use of such App or Documentation, the Developer shall, at its own expense elect to either:

(a)          procure the right for the Licensee to continue using the App and the Documentation in accordance with the provisions of this Agreement; and/or

(b)          make such alterations, modifications or adjustments to the App or the Documentation so that the infringing App or Documentation becomes non-infringing without incurring any material diminution in performance or function; and/or

(c)          replace the App or the Documentation with a non-infringing substantially similar substitute.

 

If the Developer modifies or replaces the App or the Documentation, the Licensee shall have the same rights in respect thereof as it would have had under this Agreement.

 

 

 

12.      Warranty

12.1    The Developer warrants that during the Warranty Period it has the full unencumbered legal right to licence the App to the Licensee and that for the Term of this Agreement:

(a) the App shall be reasonably fit for purpose and will perform in accordance with the Documentation; and

(b) the App is properly recorded on the media or in the files to be downloaded; and 

(c) the App is free and shall remain free from any material defect in workmanship and corresponds with the Licensee’s specifications.

 

12.2    If, during the Warranty Period, the App does not perform substantially in accordance with the Documentation or is not recorded properly on the media or files to be downloaded, the Licensee’s (non-exhaustive) remedy, shall be repair or replacement of the non-conforming App.  Any replacement App will be warranted for the remainder of the original Warranty Period.  This warranty shall be without prejudice to any other of the Licensee’s remedies, rights, warranties and conditions whether express or implied and whether arising by common law, statute or otherwise which shall remain unaffected.

 

13.      Limitation of Liability

13.1    The liability of the Developer under or in connection with this Agreement, whether arising from contract, negligence or howsoever, shall be limited as follows:

(i) in the case of liability arising from death or injury to persons or from the Developer’s’ fraud, there shall be no limit.

(ii) in the case of liability for loss or damage to physical property, including all actions, claims, demands, costs and expenses in respect thereof or in relation thereto the limit for any one event or series of connected events shall not exceed £1 million.

(iii) in respect of any other breach of its obligations under this Agreement the limit for any one event or series of connected events shall not exceed £1 million.

(iv) in the event of loss or damage caused by the Licensee’s hosting environment for which the Developer does not maintain, the Developer shall have no liability.

 

14.      Statutory Obligations

14.1    Both parties shall in all matters arising in the performance of this Agreement conform with all the statutes, orders, regulations and bye-laws applicable to this Agreement.  In the event that either party necessarily incurs costs to which it would not otherwise be liable due to the other party's failure to comply with any law, or any order, regulation or bye-law having the force of law, the other party shall reimburse the amount of such costs.

 

15.      Notice

All notices or other communications required or permitted to be given under this Agreement shall be in writing and in English and shall be sent by registered post addressed as follows: 

 

If to the Licensee:       

To the address set out of page 1 of this Licence Agreement

 

If to the Software Developer:            

Richard Kiernan

Ginspiration Limited

71-75 Shelton Street, London, WC2H 9JQ

 

Either party may change its address by giving notice to the other party in the manner set out above. 

 

16.      Integration

16.1    This Agreement contains the entire understanding between the parties with respect to its subject matter, and supersedes any and all related prior written or oral agreements between the parties.  No modification, amendment, waiver, termination or discharge of this Agreement shall be binding upon the parties unless in writing and signed by both parties. 

16.2    A waiver, express or implied, by either party of any right, or of any failure to perform or any breach by the other party, shall not constitute or be deemed to constitute a waiver of any other right. 

 

17.      Severability

17.1    If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid, illegal or unenforceable provision eliminated.

17.2    In the event of any such severance, the parties shall negotiate in good faith with a view to replacing the provisions so severed with legal and enforceable provisions that have similar economic and commercial effect to the provisions so severed.

 

18.      Assignment

18.1    The Developer agrees that neither this Agreement nor any of its benefits or rights shall be directly or indirectly assigned, transferred, divided or shared by the Developer to or with any third party without the prior written consent of the Licensee. 

 

19.      Governing Law

This Agreement is governed by and interpreted in accordance with the laws of England.  

 

20.      Dispute Resolution Procedure

20.1    The parties shall attempt in good faith to promptly resolve any dispute or claim arising out of this Agreement through negotiations between their respective senior management who have the authority to settle such disputes or claims. Any such negotiations are to commence within 21 days of either party receiving written notification of any such dispute or claim form the other.

20.2    If there is failure to reach agreement between the parties within a period of 30 days or such other length of time as the parties may agree upon (starting from the date the dispute or claim was first referred to senior management) then the parties shall attempt in good faith to resolve the dispute by mediation to be conducted by a mediator appointed by CEDR.

20.3    The parties agree to use all reasonable endeavours to ensure that all negotiations and mediation will be conducted in confidence and without prejudice to the rights of the parties or any of them in any future proceedings.  The provisions of this Condition 20 are without prejudice to the rights of the Licensee and the Developer to seek injunctive relief or any other equitable remedy in any competent court of law.

 

21.      Announcements and Publicity

21.1    Neither party shall make any announcement relating to this Agreement or its subject matter without the prior written approval of the other party except as required by law or by any legal or regulatory authority.

 

22.      No rights under Contracts (Rights of Third Parties) Act 1999

22.1    A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

23.      Signature

23.1    When the Licensee returns an unamended version of this Licence Agreement to the Developer using the Developer’s portal, it shall be deemed to have signed the Licence Agreement.

 

SCHEDULE

 

 

BASIC LICENCE FEE FOR THE APP:               £10.00 per month plus VAT.

© 2020 Ginspiration Limited, R71-75 Shelton Street, London, WC2H 9JQ