Throughout this Agreement, “Welcome” shall mean WELCOME SYSTEMS LIMITED.
“Agreement” means the agreement formed by these Terms and Conditions and the Sales Order Confirmation Form;
“the Customer” means the party with whom Welcome is contracting, and all references to
“you” and “your” herein shall refer to the Customer;
“Services” means collectively, the services the Customer has requested from Welcome, including, without limitation, the Software, Cloud Service, Hardware, Third-Party Technology, consultancy, installation and training as agreed to be provided by Welcome (or our Third-Party Installers) to the Customer and set out on the Sales Order Confirmation Form;
“Designated Equipment” means such computers, cabling, printers and peripherals, network equipment and systems, or other items necessary to execute the Licensed Software as specified in the sales order confirmation form;
“Documents” means the operating manual, user instructions, technical literature and other documentation supplied to the Customer by Welcome for aiding the use of the Software, whether provided online, on paper, or through your Application or Software;
“Hardware” means any Designated Equipment supplied to the Customer by Welcome;
“Intellectual Property Rights” means Welcome’s or any third-party licensor’s patents, trademarks, registered or unregistered trademarks, copyright, know-how, confidential information and other all protected rights in the Software or Services;
“Software” means the version of Welcome’s software or software as a service (“SaaS”) program in executable form as specified in the Sales Order Confirmation Form;
“Personal Data” means any information relating to an identified or identifiable natural person;
“Purchase Price” means the price of the Services stated on the Sales Order Confirmation Form;
“the Site” means the address for delivery of the Services as set out in the sales order confirmation form;
“Third-Party Installer” means any specialist installer appointed by Welcome to install Software and/or provide any training or support in relation to the Services;
“Third-Party Technology” means any solution or software owned by a third party but supplied by Welcome pursuant to these Terms and Conditions;
“your Applications” means all software programs, including any source code for such programs, that you or your users provide and load onto, or create using, any Welcome Services. Services under this Agreement, including Welcome intellectual property, and all derivative works thereof, do not fall within the meaning of the term “your Applications”; and
“your Content” means all text, files, images, graphics, illustrations, information, data (including Personal Data), audio, video, photographs and other content and material (other than Your Applications), in any format, provided by you or your users that reside in, or run on or through, the Services.
2. PRODUCTS AND SERVICES TO BE SUPPLIED
Welcome agrees to deliver the Services to the Customer as set forth in the Sales Order Confirmation Form.
3.1 All quotations are made, and orders accepted subject to these Terms and Conditions and these Terms and Conditions constitute our standard terms upon which we intend to rely. For your own benefit and protection, you should read these Terms and Conditions carefully and, if you do not accept that these Terms and Conditions prevail, you must contact us by telephone and inform a Welcome manager, before you place your order, that you do not intend to be bound by these terms and conditions.
3.2 These Terms and Conditions shall prevail over the Customer’s terms and conditions.
3.3 No variation to these terms and conditions shall be binding unless agreed in writing by a Welcome manager.
3.4 No order submitted by a Customer shall be deemed to be accepted by Welcome unless and until confirmed by way of Welcome sales order confirmation form.
3.5 The quantity, quality and description and any specification for the Services shall be those set out or referred to on the sales order confirmation form.
3.6 Any typographical or clerical omission in any sales literature, quotation, price list, sales order confirmation form or other document issued by Welcome shall be subject to correction without any liability on the part of Welcome.
4. TERM OF AGREEMENT
This agreement is valid for a minimum of 12 months. It cannot be cancelled by the customer before the anniversary date.
In the event that either party wishes to cancel this Agreement, the cancelling party shall provide the other party with sixty (60) days’ written notice, save where the Agreement can be terminated without notice as provided for herein.
All Purchase Prices are quoted in pounds sterling and, unless otherwise stated, exclude Value Added Tax which the Customer shall be additionally liable to pay for.
7. TERMS OF PAYMENT
7.1 Payment for the Services shall be made as follows, in accordance with option(s) selected in the Sales Order Confirmation Form:
7.1.1 Where payment takes place on a monthly basis, payments will be due within thirty (14) days of the date of the invoice; and
7.1.2 Where installation is required, a non-refundable deposit of an agreed proportion of the total Purchase Price is required upon placing the order; the remaining amount of the Purchase Price and all other charges will be payable within 30 days of completion of installation.
7.2 For all Customers located outside of the United Kingdom, payment is to be made in accordance with the terms set out in the Sales Order Confirmation Form.
7.3 Welcome reserves the right to charge interest and penalties in respect of the late payment of any sum due at the rates and other terms prescribed from time to time in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, both before and after judgement. The Customer shall indemnify and hold harmless Welcome against all costs and expenses (including legal costs on a full indemnity basis) incurred or sustained by Welcome in recovering such sums.
7.4 In addition to Welcome rights under clause 3, Welcome shall be entitled, at its discretion, to disable functionality of the whole or any part of the Services until such time as the payment for the full amount due pursuant to this Agreement has been paid in full.
Welcome rights under this clause 7.3 are without prejudice to any other rights available to Welcome whether arising under this Agreement or otherwise.
8. DISPATCH AND DELIVERY
8.1 Welcome shall use all reasonable endeavours to deliver, install and commission the Services by the date agreed by the parties, or if no such date is agreed, within a reasonable time. However, where applicable, all dates for delivery, installation or commissioning of Services in a quotation or Sales Order Confirmation Form are approximate only and cannot be guaranteed. Time for delivery shall not be of the essence.
8.2 If the Services include SaaS, installation and training will be provided remotely for these Services. Welcome and the Customer shall both use reasonable endeavours to arrange for installation and training. The Customer is responsible for ensuring that the Designated Equipment is compatible with the Service.
8.3 Where applicable, the Customer agrees to co-ordinate its operations with Welcome’s or a Third-Party Installer’s installation schedule and accepts liability for any additional charges incurred as a result of any delays necessitating additional site time which are due to circumstances within the Customer’s direct control.
9. WARRANTY AND LIABILITY
9.1 Welcome warrants to the Customer that the Software will operate in all material respects in accordance with the specification therefor contained in the Documents for a period of 90 days from installation provided that the Software is used in accordance with Welcome recommendations.
9.2 If the Customer notifies Welcome during the agreed 90 day warranty period of any defect or fault in the Software in consequence of which it fails to conform in all material respects with its specification and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Licensed Software or used it for a purpose or in a context other than that for which it was designed, Welcome undertakes to rectify any such defect or fault at its expense, provided that all monies due to Welcome from the Customer in respect thereof have been paid in full.
9.3 Unless otherwise agreed, Welcome’s sole liability in respect of Hardware, Hardware maintenance and Third-Party Technology shall be to pass on to the Customer the benefit of any manufacturer’s warranty, guarantee or maintenance agreement to the extent that it is able to do so.
9.4 Welcome warrants that any services which it has agreed to provide will be provided with reasonable skill and care.
9.5 Nothing in this agreement shall operate to exclude or limit Welcome’s liability for:
9.5.1 death or personal injury caused by Welcome negligence; or
9.5.2 any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
9.5.3 fraud; or
9.5.4 any other liability which cannot be excluded or limited under applicable law.
9.6 Save for any liability of Welcome’s accepted under this Agreement, Welcome shall not be liable for any Customer or third party:
9.6.1 loss of revenue;
9.6.2 loss suffered by a Customer third party;
9.6.3 loss of actual or anticipated profits;
9.6.4 loss of contracts;
9.6.5 loss of the use of money;
9.6.6 loss of anticipated savings;
9.6.7 loss of business;
9.6.8 loss of opportunity;
9.6.9 loss of goodwill;
9.6.10 loss of reputation;
9.6.11 loss of, damage to or corruption of data;
9.6.12 failure by the Customer to keep up to date back up copies of its programs and data;
9.6.13 ex gratia or other payments made by the Customer; or
9.6.14 indirect or consequential loss, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise.
9.7 Save for any liability of Welcome has accepted under this Agreement, Welcome’s entire liability under this Agreement shall not exceed the equivalent of 12 months’ charges in the 12 months preceding the incident which triggered Welcome ‘s liability under this Agreement.
9.8 The Terms and Conditions set out above are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law.
9.9 In the event that Welcome discontinues or no longer supports a particular Service and advises the Customer within sixty (60) days’ notice thereof, Welcome shall in no way be liable for any liability arising, whether directly or indirectly, from the use of any Welcome Service or technology that is no longer supported or updated by Welcome. This provision shall survive the termination of the Agreement.
10.1 Where installation is part of the Services, Welcome may make available a qualified engineer at the Site at a mutually convenient time during Welcome normal working hours to supervise the installation of the relevant Services. The Customer shall be responsible for satisfying itself that its network environment is suitable for the receipt and operation of the Services, for preparing the Site and staff in accordance with any instructions given by Welcome, for providing all necessary labour and materials and for making ready all equipment and machinery not supplied by Welcome. Installation will be deemed to be completed on the earlier of the issue of written confirmation that the Services have been installed or the date that the Customer commences use of the Licensed Software.
10.2 Where it is necessary for Welcome employees to be present at the Site overnight, suitable accommodation and subsistence must be provided at the Customer’s expense.
10.3 Where connection is required to other systems (i.e. PABX, ePOS etc.), the Customer will supply the relevant protocol to Welcome, and where appropriate, contract for the development of interfaces in advance.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in the Software and any modifications thereof shall belong to Welcome or its licensors for the duration of the Agreement and after termination of this Agreement.
11.2 Welcome shall defend the Customer against any claim that the normal use of the Software infringes the Intellectual Property Rights of any third party and shall indemnify the Customer against any award made against the Customer in respect of such a claim by a competent court of jurisdiction, provided that Welcome is given immediate and complete control of such claim, that the Customer does not prejudice Welcome’s defence of such claim, that the Customer gives Welcome all reasonable assistance with such claim and that the claim does not arise as a result of the use of the Software otherwise than in accordance with the terms of its license or in combination with any equipment (other than the Designated Equipment) or programs not supplied or approved by Welcome.
11.3 You may not, or cause or permit others to:
11.3.1 remove or modify any program markings or any notice of Welcome or its licensors’ proprietary rights;
11.3.2 make the programs or materials resulting from the Services (excluding your Content) available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific Services you have acquired);
11.3.3 modify, make derivative works of, disassemble, decompile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs) unless required to be permitted by law for interoperability, or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Welcome;
11.3.4 perform or disclose any benchmark or performance tests of the Services without Welcome’s prior written consent;
11.3.5 perform or disclose any of the following security testing of the Services Environment or associated infrastructure without Welcome’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
11.3.6 license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Software or Welcome materials available, to any third party, other than as expressly permitted under the terms of the applicable Sales Order Confirmation Form.
11.4 Welcome shall have the right to replace or change all or any part of the Services in order to avoid any infringement, whether current or threatened.
11.5 The foregoing states the entire liability of Welcome to the Customer in respect of the infringement of the Intellectual Property Rights of any third party.
11.6 The rights granted to the Customer under this Agreement are also conditioned on the following:
11.6.1 except as expressly provided herein or in the Sales Order Confirmation Form, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
11.6.2 The Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Services.
12. CUSTOMER’S OBLIGATIONS
During the continuance of this Agreement the Customer shall:
12.1 Ensure that the Services are used only in accordance with the Manual or advice from qualified Welcome employees only;
12.2 where applicable, make so many back-up copies of the Software and of the Customer’s databases and computer records as may be necessary in accordance with best computing practice;
12.3 apply all updates to the Services as issued by Welcome;
12.4 not alter or modify the Services in any way whatsoever nor permit the Services or Software to be combined with any other programs;
12.5 ensure that you promptly return to us without any set off, counterclaim or any other similar deduction, any money or funds that have been sent to the Customer in error which relate to Welcome or its services within 5 days of us notifying the Customer of the error.
12.6 not request, permit or authorise anyone other than Welcome to provide support services for the Software;
12.7 co-operate fully with Welcome personnel in the diagnosis of any error or defect in the Software;
12.8 permit designated employees and sub-contractors of Welcome access to the Customer’s offices and to such of the Customer’s software and computer systems as is necessary to enable Welcome to provide the Service;
12.9 make available to Welcome free of charge all information facilities and services reasonably required by Welcome to perform the Service;
12.10 have installed such telecommunication facilities as are reasonably required by Welcome for testing and diagnostic purposes at the Customer’s expense; and
12.11 ensure in the interests of health and safety that Welcome personnel, if on the Customer’s premises for the purposes of this Agreement, are at all times accompanied by a member of the Customer’s staff familiar with the Customer’s premises and safety procedures.
13. DATA PROTECTION
13.2 Welcome acts as the data processor on behalf of the Customer, the data controller, and undertakes the processing of the Customer’s data within all boundaries of the Agreement. Welcome does not share or utilize any data of the Customer’s without prior explicit permission for either marketing or statistical analysis purposes.
13.3 Welcome shall only carry out those actions in respect of the Personal Data processed on behalf on the Customer as expressly authorised by the Customer and as disclosed in this Agreement.
13.4 Welcome takes all security measures as are required under applicable law to protect Personal Data processed by Welcome on behalf of the Customer against unlawful forms of processing.
13.5 Welcome agrees that it shall maintain all Personal Data confidential and shall not disclose any Personal Data to any Third Party, save as disclosed herein or with the Customer’s prior consent.
13.6 Save as disclosed herein, Welcome shall not sub-contract any of its rights or obligations under this Agreement.
13.7 Nothing in this Agreement shall prevent either party from complying with any legal obligation imposed by a regulator or court. Both parties shall however, where possible, discuss together the appropriate response to any request from a regulator or court for disclosure of information.
13.8 To allow Welcome to fulfil the Agreement’s requirements, the Customer (data controller) hereby confirms this contract is lawful and warrants that Customer’s Personal Data will be processed in compliance with all applicable laws. Customer will be liable for all data protection breaches, penalties, fines, or regulatory ordinances resulting from Customer’s unlawful use of Personal Data and shall indemnify and hold harmless Welcome for any damages sustained in relation to such unlawful use of Personal Data.
13.9 The Customer shall be responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from your Content and your Applications, including any viruses, Trojan horses, worms or other programming routines contained in your Content or your Applications that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.
13.10 Upon termination, Welcome will maintain records of the Customer’s data for a given time period as required by applicable law. Where required, the Customer may contact Welcome which will make this data available upon request to comply with any legal order, ordinance or judgment. Welcome does not commit to keeping records of Customer data for longer than required by law after termination.
14. SOFTWARE LICENSE
Where the Services include Software:
14.1 In consideration and upon payment of the Purchase Price for the Software, Welcome grants to the Customer a nonexclusive, non-transferable license to use the Software on the Designated Equipment at the Site subject to these terms and conditions.
14.2 The Customer shall treat the Software and the Documents as strictly confidential and shall not divulge the whole or any part thereof to any third party, provided that this section shall not apply to information which was rightfully in the Customer’s possession prior to disclosure by Welcome, which is already public knowledge or becomes so at a future date (otherwise than as a breach of this section).
14.3 The Customer shall ensure that its employees comply with the provisions of this sub-clause.
14.4 The Customer shall not have the right to transfer, assign or grant any sub-license to a third party without Welcome’s prior written consent.
14.5 Except to the extent and in the circumstances expressly required to be permitted by law, the Customer shall not alter, modify, adapt or translate the whole or any part of the Software in any way whatsoever nor permit the whole or any part of the Software to be combined with or to become incorporated in any other programs nor decompile, disassemble or reverse engineer the Licensed Software or any part thereof nor attempt to do any of such things. To the extent that local law grants to the Licensee the right to decompile the Software in order to obtain information necessary to render the Software interoperable with other computer programs used by the Customer, Welcome hereby undertakes to make that information readily available to the Customer and the Customer agrees to make such requests of Welcome before attempting to decompile the Software. Welcome shall have the right to impose reasonable conditions such as a reasonable fee for doing so. In order to ensure that the Customer receives the appropriate information, the Customer must first give Welcome sufficient details of the Customer’s objectives and the other software concerned.
14.6 The Customer may only make copies of the Software for operational security and back-up purposes but shall make no other copies thereof. Such copies and the media on which they are stored shall be the property of Welcome and the Customer shall ensure that all such copies bear the same proprietary notices as the original. The provisions of this license shall apply to all such copies as they apply to the Software. No copies may be made of any Documents without the prior written consent of Welcome.
15. CLOUD SERVICES
15.1 Welcome may make available certain Cloud Services for trial, non-production purposes. Cloud Services for trial purposes are issued under a separate Agreement. Cloud Services acquired for trial purposes are provided on an “as is” and “as available” basis and may not be used with production data that has not been masked, anonymized or otherwise rendered unreadable. Welcome does not provide technical or other support or offer any warranties for such Services.
15.2 Welcome may make available “Free Productions” for certain Cloud Services under this Agreement. Free Productions ordered by You are described in the Service Specifications applicable to Your order and are provided solely for You. All rules relating to security of Data remains as in 6.1 – 3.
16.1 Welcome reserves the right to terminate this Agreement immediately:
16.1.1 if the Customer commits any material breach of the terms of this Agreement and, if such breach is capable of remedy, fails to remedy the breach within 30 days of receipt of a notice from Welcome requesting that the Customer remedy the breach; or
16.1.2 if the Customer ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement); or
16.1.3 if the Customer becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to the Customer; or
16.1.4 if a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of the Customer, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
16.1.5 if the ability of the Customer’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of the Customer’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
16.1.6 If any process is instituted which could lead to the Customer being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
16.2 Forthwith upon termination of the license the Customer will return the Software and all copies of the whole or any part thereof to Welcome or, at Welcome’s option, shall destroy the same and certify to Welcome that they have been so destroyed. The Customer shall also cause the Software to be erased from the Designated Equipment (or shall allow Welcome to erase the Software from the Designated Equipment) and shall certify to Welcome that the same has been done. Termination of the license shall not affect any accrued rights or liabilities of either party. For the avoidance of doubt, there shall be no refund of any element of the Purchase Price by reason of termination of the license.
17. SUSPENSION OF ACCOUNT
Welcome may temporarily suspend your password, account, and access to or use of the Services if you or your users violate any provision of this Agreement, or if, in Welcome’s reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality. Welcome will use its best endeavors to provide notice to you of any such suspension in Welcome’s reasonable discretion, based on the nature of the circumstances giving rise to the suspension. Welcome will use reasonable efforts to re-establish the affected Services promptly after Welcome determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, Welcome will make available to you your Content as existing in the Services environment on the date of suspension. Welcome may terminate the Services under an order if any of the foregoing causes of suspension is not cured within 30 days after Welcome’s initial notice thereof. Any suspension or termination by Welcome under this paragraph shall not excuse you from your obligation to make payment(s) under this Agreement.
18.THIRD PARTY TECHNOLOGY
Where applicable, Welcome uses certain Third-Party Technology in relation to the Services. The Customer undertakes to comply with the terms of the end user license terms of the Third-Party Technology, copies of which are held at:
While Welcome may supply Hardware in association with certain Services, Welcome does not make any agreement to service or maintain Hardware, other than to pass on the benefit of any manufacturer’s maintenance agreement accompanying such hardware, to the extent that it is able to do so, except by separate special arrangement. In the event that the Customer requires Welcome personnel to assist with a hardware problem, Welcome will charge the Customer for the actual telephone, remote connection, and/or site visits at Welcome’s current listed rate, unless the hardware concerned is covered by Welcome under a separate agreement. All costs of CD’s, shipping and transport expenses as well as staff and travel costs will be paid in full by the Customer.
20. FORCE MAJEURE
Welcome shall not be liable for any failure to supply or delay in supplying Services to the extent that the same is caused by any factor beyond Welcome reasonable control and Welcome reserves the right to cancel, vary or suspend supply or performance of the Services in such circumstances.
No forbearance, delay or indulgence by either party in enforcing these terms and conditions shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
22. ENTIRE AGREEMENT
The Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof provided that nothing in this term shall limit a party’s liability for fraudulent misrepresentation.
No addition to or modification of any of these terms and conditions shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties.
24. THIRD PARTY RIGHTS
A person who is not a party to the Agreement has no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
Notwithstanding that the whole or any part of any terms and conditions of the Contract may prove to be illegal or unenforceable, the other provisions of the Contract and the remainder of the term or condition in question shall remain in full force and effect.
You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity without prior written consent by Welcome.
27. NO ENCUMBRANCES
If you grant a security interest in any portion of the Services, the secured party shall have no right to use or transfer the Services or any deliverables, and if you decide to finance your acquisition of the Services, you will follow Welcome policies regarding financing. The foregoing shall not be construed to limit the rights you may otherwise have with respect to separately licensed Third-Party Technology licensed under open source or similar license terms.
Export laws and regulations of the United Kingdom and any other relevant local export laws and regulations apply to the Services. You agree that such export laws govern your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no Personal Data, information, software programs and/or materials resulting from Services (or direct product thereof) will exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
29. ENGLISH LAW
The Contract shall be governed and construed in accordance with English Law and any grievance will be adjudged under the nonexclusive jurisdiction of the English Courts.