"Contract" means the agreement between VEHICLE MANAGEMENT SYSTEMS LIMITED and the Garage upon these terms and conditions.
"Contract Price" means the amount payable by the Garage.
"Garage" means the organisation or entity which requests the Software who are using the Software exclusively for business purposes. It shall not include a consumer within the meaning of the Consumer Rights Act 2015.
"My Garage" means the Company known as VEHICLE MANAGEMENT SYSTEMS LIMITED.
"My Garage Control Panel" means the My Garage Control Panel website or the My Garage App.
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Licence" means permitted access to the My Garage Control Panel, My Garage Control Panel App and Software pursuant to the terms and conditions of this Contract.
"Mobile App Services" means the provision of the Software and any applications for mobile devices designed and built by My Garage and provided to the Garage including additions and enhancements as an ongoing supported service.
"Software" means any Software devised and licensed by My Garage including the My Garage Control Panel and My Garage App and provided to the Garage including additions and enhancements as an on-going supported service by means of a data service connected by the internet to the Garage's computers and/or to mobile devices.
ACCESS TO THE SOFTWARE
Acceptance of the Contract for access to the Software occurs upon receipt by My Garage of payment. Provided that the Garage pays the Contract Price as it falls due, the Contract shall continue in full force and effect until terminated by either party in accordance with clause 10.
Any dates for access to the Software are approximate only and time is not of the essence.
PAYMENT FOR ACCESS TO THE SOFTWARE
The Garage shall pay to My Garage the Contract Price negotiated between them.
LICENCE AND PERMITTED USE
In consideration of the Contract Price, and subject to the terms of the Order, My Garage grants to the Garage a limited, non-exclusive and non-transferrable licence to gain access to the Software in accordance with the terms of this Contract for as long as Contract Price is paid every month and subject to the conditions below.
All Intellectual Property Rights relating to the Software and any enhancements or updates shall be the property of My Garage and the Garage shall have no rights thereto except for the licence to use it granted by this Contract.
The Garage shall not allow the use of the Software by, or for the benefit of, any person other than an employee of the Garage;
The Garage shall not transfer or distribute to any other person, whether by licence, loan, rental, sale or otherwise, anything relating to the Software.
The Garage shall notify My Garage as soon as it becomes aware of any unauthorised use by any person, of the Software.
The Garage has no right, and shall not permit any third party, to copy adapt, reverse engineer, decompile, disassemble, modify or make error corrections, additions or enhancements to the Software in whole or in part.
The Garage shall not use any information provided by My Garage to create any software whose expression is substantially similar to that of the Software, nor use any information in any manner which would be restricted by any copyright subsisting in it;
The Garage shall not;
sub-licence, assign or novate the benefit or burden of this Contract in whole or in part;
allow the Software, to become the subject of any charge, lien or encumbrance; and
deal in any other manner with any or all of its rights and obligations under this Contract,
without the prior written consent of My Garage.
The Garage shall maintain adequate security measures to safeguard the Software from unauthorised access use or copying.
The Garage undertakes to treat as confidential and keep secret information received in connection with the Software and user information and not to use it for purposes other than in relation to the Contract and not to disclose any part of it to any person without the consent of My Garage. This provision will remain in force following termination of the Contract but subject to the information becoming part of the public domain.
The Garage shall indemnify My Garage fully against loss, damages or expenses which it may suffer or incur including professional fees and cost of staff time on a full indemnity basis to the fullest extent possible and without any duty to mitigate, as a result of the infringement of the Intellectual Property Rights of any third party as a result of the performance of the Contract by My Garage in accordance with the Garage's instructions, or as a result of reliance on information or data supplied by the Garage which has been provided to a third party on behalf of the Garage.
THE OBLIGATIONS OF THE GARAGE
The provision of the Software set out above are provided subject to the following conditions which shall comprise the obligations of the Garage. The Garage agrees to;
Provide data, information and operational systems and equipment suitable for use with the Software, including without limitation, sufficient internet band width and connectivity;
Be responsible for fully co-operating with My Garage and in particular, shall provide all information required by My Garage;
To investigate any possible problem and to determine to the best of its ability the cause and then to notify My Favourite Garage;
To promptly implement any solutions, guidance and instructions provided by My Garage and to promptly perform system tests as requested by My Garage;
To provide written descriptions of problems as requested by My Garage;
WARRANTIES
My Garage warrants that the Software will substantially perform the functions and have the features as described.
In the event of a problem with the Software (and subject to the right of termination below) the Garage's sole remedy shall be limited to fixing or re-installation of the programme.
My Garage does not warrant that the use of, and access to the Software will be uninterrupted or error-free and specifically does not warrant that the Software will be provided in case of lack of internet connectivity as a result of a fault by My Garage, the data host, the Garage or any third party.
The Garage accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that they are not provided to meet the individual requirements of the Garage.
My Garage does not provide a warranty beyond any provided by a third party manufacturer of software or other equipment.
In the event of a warranty claim, My Garage shall have the option to do one of the following;
Fix or re-install the programme, provided that the Garage supplies all the information that may be necessary to assist My Garage in resolving the problem; or
Terminate this Contract immediately by notice in writing to the Garage.
The warranty shall not apply if;
The Software is not used in accordance with the terms of this Contract and the instructions of My Garage including the use of specified and appropriate equipment;
The Software is altered, modified or converted by the Garage or any third party;
Any problem or failure results from a third party's or the Garage's equipment or software not supplied by My Garage or for any reason outside My Garage's control;
SUPPORT
The Software is supported by My Garage. Enhancements and updates shall be provided to the Garage from time to time and Garage and public access may be affected during this process.
My Garage does not support:
Any software, programmes, accessories, attachments, machines, systems or other items or hardware not explicitly defined as Software.
Rectification of lost or corrupt data or programmes.
Support of the Software which have been modified or altered by any person other than My Garage.
Diagnosis and/or rectification of potential or actual faults not associated with the operation of the Software;
Corrections or data corruption caused by the Garage, its employees or agents or by any third party or other software.
EXEMPTIONS AND LIMITATIONS OF LIABILITY
The Garage accepts that it is responsible to select how the Software will meet its specific requirements. The Garage accepts that the Software cannot be tested in every possible combination. In particular, My Garage does not accept any liability for whether the Garage's Order will meet the Garage's requirements.
Liability is excluded for any losses whether direct or indirect in connection with whether the Software fulfils the requirements of any communication or interface with third party software of any description.
Liability is excluded for any losses whether direct or indirect in connection with whether the operation of Software is uninterrupted or error free or arising from a lack of internet connectivity as a result of a fault by My Garage, the data host, the Garage or any third party.
Liability is excluded for any losses whether direct or indirect in connection with the loss or corruption of data including any losses in connection with the cost of replacement, recovery of reconstruction of Garage's or third party's tapes, discs, records, documents or media.
The Garage shall always inform My Garage of any alleged loss in connection with this Contract and shall afford it a reasonable opportunity of correcting the alleged default.
Whilst My Garage may accept liability for death or personal injury directly caused by its act or omission or for direct physical damage to Garage's tangible property, it will not be liable for any loss or damage howsoever caused (even if foreseeable) as follows:
Where the Contract has terminated;
Any alleged losses arising from a default which has been corrected;
Any loss of profits; or
Any loss of data or failure to comply with Data Protection Legislation
Any loss of business; or
Depletion of any goodwill and/or similar losses; or
Any loss of anticipated savings; or
Any loss of goods; or
Any loss of contract; or
Any loss of use; or
Any loss caused by My Garage acting under the instruction of the Garage, its employees or agents;
Any loss caused by the lack of competent staff conversant with and proficient in, the Software and the operating systems environment.
My Garage will not be liable for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
My Garage's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Contract shall in all circumstances and for all losses arising out of one incident, be limited to the total Contract Price.
Where My Garage has introduced the Garage to any third party as the supplier of any goods or services including training to the Garage, My Garage gives no warranty or guarantee as to the suitability or quality of the goods or services provided.
The Garage acknowledges that the Contract Price has been calculated on the basis that My Garage excludes and/or limits its liability to the Garage in accordance with the Contract and that the exclusions and limitations contained in the Contract are fair and reasonable in all the circumstances known at the date of the Contract.
Each of the limitations and exclusions set out above is to be construed as a separate limitation or exclusion, applying where other limitations or exclusions are held inapplicable or unreasonable, and shall remain in force despite termination of the Contract.
CONFIDENTIALITY AND DATA PROTECTION
Garages are subject to the acceptance of the My Garage Control Panel Data Processing Agreement
TERMINATION
My Garage may terminate this Contract immediately by giving written notice to the Garage if;
The Contract Price or any part of it is not paid to My Garage.
The Garage commits any other breach of any of the provisions of the Contract and, if the breach is capable of remedy, fails to remedy it within 14 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
The Garage may terminate in line with the terms agreed as part of their My Garage membership.
Either party may terminate immediately if:
Termination of this Contract will not affect either party's accrued rights (including rights to be paid) as at the date of termination. However, following termination the Garage will be unable to gain access to any of the data incorporated within the My Garage Control Panel database and My Favourite Garage shall have no obligation to provide such access.
Prior to termination pursuant to this clause 10, the Garage may extricate the data that is available within the reports in the My Garage Control Panel, but shall have no right to receive data in any alternative format or media nor to receive any services to transfer the data to a successor provider.
Upon termination of this Contract, in line with My Garage App users rights to data portability, My Garage App users will be offered the ability to move their account to another garage on the My Garage App or to use the app without a Linked Garage. After this period, any remaining Data will be deleted irretrievably after a reasonable period of not more than 6 months. The Garage may request in writing that the deletion shall take place within a shorter period of time with the agreement of My Garage.
FORCE MAJEURE
Neither My Garage nor the Garage shall be liable for any loss or damage caused by delay or failure to fulfil its obligations under this Contract where such delay or failure is due to any cause beyond the control of My Garage or the Garage, as the case may be, including (without limitation) acts of God, war or warlike action, civil disorder, insurrections or riots, fire, storm, flood, explosions, earthquakes, epidemics or quarantine restrictions, sabotage, government disorders, priorities or regulations affecting materials or facilities, court orders, strikes actual or threatened, labour troubles causing cessation, slowdown or interruption of work, failure, cessation or interruption of the data hosts equipment causing interruption or loss to the Software Services, inability to obtain necessary governmental or regulatory authority approval, delay or cancellation of any commercial air or transport service, or any cause to the extent it is beyond the parties' reasonable control. If My Garage is prevented from fulfilling all or part of the Contract due to force majeure, the Garage may make alternative arrangements and will not be liable to pay for what is not provided. The Garage must make all payments due before or after the event of force majeure.
GENERAL
My Garage may assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Contract. The Garage cannot assign or otherwise transfer this Contract without the prior written consent of My Favourite Garage.
No variation to this Contract will be valid or binding unless it is recorded in writing and signed by or on behalf of the parties.
The Contracts (Rights of Third Parties) Act 1999 will not apply to this Contract and no third party will have any right to enforce or rely on any provision of this Contract.
My Garage's failure at any time to require strict performance by the Garage of any provision of the contract shall not waive or diminish My Garage's rights subsequently to demand strict performance of any part of the Contract.
Provisions which by their intent or terms are meant to survive the termination of this Contract will do so.
If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Contract will not be affected.
Any notice to be delivered under this Contract must be in writing and delivered by pre-paid first class post to or left by hand delivery at the registered address or place of business of the notified party, or sent by email to an authorised representative. Notices sent by post shall be deemed to be delivered on the second business day after posting; notices delivered by hand will be deemed to have been received at the time the notice is left at the proper address; Notices sent by email will be deemed to have been received on the next business day after transmission.
WHOLE CONTRACT
The Contract and the documents referred to, contain the whole Contract between the parties relating to the transactions contemplated by the Contract and supersede all previous Contracts between the parties relating to these transactions.
The Garage acknowledges that in agreeing to enter into this Contract it has not relied on any representation, promise, statement or warranty or other assurance except those set out in the contract and the documents referred to in it.
Nothing shall prejudice either party's right to a cause of action in fraudulent misrepresentation.
APPLICABLE LAW
The Contract shall be subject to the laws of England and Wales and the Garage irrevocably submits to the exclusive jurisdiction of the English Courts.
