App Development Terms

1. Interpretation

     1.1  These terms are a set of relevant Specialist Terms of Service as set out in clause 2.2.2 of the Breeze Basic Terms of Service. They should                         therefore be read in connection with those Basic Terms of Service and incorporate the interpretations from the Basic Terms of Service.

     1.2 Without prejudice to the contents of clause 1.1 of these terms, the following interpretations shall apply in these terms:

           1.2.1 Agreed Specification” has the meaning given in clause 3.1 of the terms.

           1.2.2 “Application” means the application software comprised of the Breeze Software developed for operation on the Operating System.

           1.2.3 “Application (Current)” means the Application and any new releases.

           1.2.4 “Bespoke Software” means software programs developed by Breeze specifically for the Customer as part of the Application.

           1.2.5 “Breeze Software” means the Breeze Standard Software, the Third-Party Software, the Modified Software, the Tools and the Bespoke                       Software.

           1.2.6 “Breeze Standard Software” means the software programs proprietary to Breeze which are to be provided to the

          Client without modification.

           1.2.7 “Delivery Date” means the date on which Breeze delivers the Application to the Client for Testing.

           1.2.8 “Documents” means the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable

           or machine-readable forms supplied by Breeze.

           1.2.9 “Licensed Software” means the Breeze Software (except the Third-Party Software and Modified Software (Third-Party)).

           1.2.10 “Modified Software” means the standard software programs proprietary to the Supplier and/or third parties, modified or to be modified by             the Supplier under this agreement.

           1.2.11 “Modified Software (Third Party)” means Modified Software where the software to be modified is proprietary to a third party.

           1.2.12 “Operating System” means the operating system of the device on which the Application will be used.

           1.2.13 “Ready for Service” means installed, tested and having passed or deemed to have passed the Acceptance Tests.

           1.2.14 “Third-Party Software” means any Open-Source Software and any software programs proprietary to third parties which are to be provided             to the Customer without modification.

           1.2.15 “Tools” means any tools and know-how developed, and methods invented, by Breeze in the course of or as a result of carrying out the                       Proposal of Work, whether or not developed or invented specifically or used exclusively to carry out the Proposal of Work.

2. Application and Documents

      2.1 Breeze shall carry out the Work with commercially reasonable diligence and despatch and, with commercially reasonable skill and expertise,             provide the Application to meet the Agreed Specification.

      2.2 Breeze shall provide the Breeze Software under the terms of this Contract.

      2.3 Breeze shall provide the Third-Party Software and any Modified Software (Third Party) to the Client under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Client, and the Client agrees to be bound to the relevant third parties by such licence terms.

      2.4 Breeze shall provide to the Client from time to time copies of the Documents containing sufficient up-to-date information for the proper use of the Application (Current). These Documents may be supplied in electronic form.

     2.5 The Client may make such further copies of the Documents as are reasonably necessary for the use of the Application (Current) and for training the Client’s personnel in use of the Application (Current). The Client shall ensure that all of Breeze’s proprietary notices are reproduced in any such copy.

      2.6 The Client may provide copies of the Documents to any third party who needs to know the information contained in it, provided that such third party first enters into a confidentiality obligation in accordance with this Contract.

3. Agreement of Specification

      3.1 Within 14 days of entering into this Contract, Breeze and the Client shall negotiate in good faith to agree an industry standard Specification for the project setting out the Deliverables for the project (the “Agreed Specification”).

4. Services

      4.1 Breeze shall develop the Bespoke Software and make the modifications to the Modified Software in accordance with the requirements of the Agreed Specification.

     4.2 Breeze will provide the Application Ready for Service by the Completion Date in the Proposal of Work and the Agreed Specification.

     4.3 Breeze shall use commercially reasonable endeavours to perform any other tasks set out in the Proposal of Work.

     4.4 In performing the Services, Breeze shall comply with the Client’s reasonable instructions to ensure minimal disruption to the Business.

5. Testing

       5.1 The Testing section from Breeze’s Basic Service Terms are repeated here.

6. Application Delivery, Installation and Delays

      6.1 Breeze shall use its commercially reasonable endeavours to deliver each module of the Application to the Client in line with the timeline agreed in the Proposal of Work.

      6.2 Breeze shall supply to the Client, within a reasonable time of delivering the Application, such information and assistance as the Client may reasonably request.

      6.3 If any delivery is delayed at the request of the Client, or because of their acts or omissions, the Proposal of Work shall be amended to take account of such delay. If Breeze can demonstrate that the delay has resulted in an increase in cost to Breeze of carrying out its obligations under this agreement, Breeze may, at its sole discretion, notify the Client that it wishes to increase the Price by an amount not exceeding any such demonstrable cost and shall invoice in line with the Basic Service Terms.

7. Bug Free Guarantee

       7.1  If any module of the Application fails in some material respect to pass any repeated Acceptance Tests within 45 days of its Delivery Date, then the Client may, by written notice to Breeze, choose at its sole discretion:

              7.1.1. to fix (without prejudice to the Client’s other rights and remedies) a new date for carrying out further tests on the module of the Application on the same terms and conditions.

              7.1.2. to permit installation of the module of the Application subject to such change of acceptance criteria, amendment of the Agreed Specification as, after taking into account all the relevant circumstances, is reasonable.

8. Acceptance

      8.1  Acceptance of Breeze Software shall be deemed to have occurred on whichever is the earliest of:

             8.1.1. the signing by the Client of an Acceptance Certificate for the final module of the Application to pass the Acceptance Tests;

             8.1.2. the expiry of 45 days after the Delivery Date; or

             8.1.3. the use of the Application by the Client in the normal course of the Business.

9. Software Licence and Documents

       9.1  Breeze grants, subject to the terms of this agreement, the Client the non-exclusive right to use the Licensed Software and the Documents for any purpose related to the Business.

       9.2 The Client shall comply with the Third-Party Licences and shall indemnify and hold Breeze harmless against any loss of damage that it may suffer or incur as a result of the Client’s breach of such terms.

       9.3 Breeze may treat the Client’s breach of any Third-Party Licence as a breach of this agreement.

10. Transfer or Reproduction of Licensed Software

         10.1  The Client may make such copies of the Licensed Software as are reasonably necessary for use in accordance with this agreement and for the purposes of backup and security. The Client has no right to make, or authorise the making of, any other copies of the Licensed Software.

          10.2 Breeze shall at all times own all copies of all or any part of the Licensed Software. For copies recorded on a tangible medium, the Client shall place on each copy of all or any part of the Licensed Software a clearly visible label indicating that the copy is the property of Breeze, and reproducing Breeze’s proprietary rights notice. For electronic copies, the Client shall ensure that all proprietary notices contained in the Licensed Software shall be maintained in such copies and shall display, when the software is run, in the same way as in the case of the Licensed Software as supplied by Breeze. The Client shall keep all copies of the Licensed Software in a secure place when not in use and shall, at all times, keep all such copies in its possession or control.

          10.3 The Client shall not:

                   10.3.1 sub-license, rent, lend, assign or transfer in any other way this agreement or the Licensed Software to any person without the prior written consent of Breeze; and

                   10.3.2  gives access to the Licensed Software through any network of computers to users who are not employees or agents of the Client.

11. Use and Adaptation of Licensed Software

       11.1  The Client may use the Licensed Software with other software.

       11.2 The Client may not make adaptations or variations of the Licensed Software without the prior consent of Breeze.

       11.3 The Client may not disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law.

12. Breeze Warranties

        12.1  Breeze warrants and represents that:

                 12.1.1. The Licensed Software at the Acceptance Date, and for 3 months after that date, will perform, in all material respects, on the Operating System in accordance with the Agreed Specification.

                 12.1.2 The Application is in compliance with all applicable laws and regulations.

        12.2 The sole remedy for breach of the warranty under this Clause 12.1.1 shall be correction of Defects by Breeze in line with clause 7 of these terms from notification by the Client of the Defect that constitutes such breach.

        12.3 The warranties set out in Clause 12.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this agreement. Without limitation, Breeze specifically denies any implied or express representation that Breeze Software will be fit:

                  12.3.1 to operate in conjunction with any hardware items or software products other than with those that are identified in the Documents as being compatible with Breeze Software; or

                   12.3.2 to operate uninterrupted or error-free.

        12.4 Breeze does not warrant or guarantee that it will be able to rectify all Defects.

        12.5 Any unauthorised modifications, use or improper installation of the Application (Current) by, or on behalf of, the Client shall render all Breeze’s warranties and obligations under this agreement null and void.

        12.6 Breeze shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than by normal recovery or diagnostic procedures have been made by the Client’s personnel or third parties without the permission of Breeze.

13. Client Warranties

        13.1 The Client:

                13.1.1. warrants to Breeze that it will at all times comply with all applicable laws and regulations with respect to its activities under this agreement and in connection with any part of Breeze Software;

                13.1.2 shall take reasonable steps not to introduce any Virus or Vulnerability to Breeze Software or the network and information systems of Breeze; and

                13.1.3. shall indemnify Breeze against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Breeze arising out of any non-compliance by the Client with Clause 13.1.1, and Clause 13.1.2.