Terms and Conditions for use of INDICATA
The Customer's attention is particularly drawn to the provisions of condition 9 (Limitation of liability).
These are the terms and conditions on which we supply Indicata to you. By using Indicata, by interacting with the Indicata Website or carrying out business or transactions from emails sent by Indicata you confirm that you have read, understood and accept these terms and conditions which will bind you and your employees.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS YOU ARE NOT LICENSED TO USE INDICATA AND YOU MUST STOP ANY USE IMMEDIATELY.
1.1 The following definitions and rules of interpretation apply in this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in condition 2.1.
Conditions: these terms and conditions as amended from time to time in accordance with condition 13.8.
Contract: the contract between the Supplier and the Customer for the supply of Indicata in accordance with these Conditions.
Customer OR you: the person or firm who purchases Indicata from the Supplier.
Indicata: the provision of use of Indicata Live Market Overview software, a real-time evaluation tool giving a market overview based on current supply and demand [the specific package of Indicata to be provided to the Customer is set out in the Order].
Intellectual Property Rights: 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.
Order: the Customer's order for the supply of Indicata, as set out in the Customer's purchase order form.
Subscription Fee: means the cost of the package of Indicata the Customer purchases as set out in the written confirmation of Order, payable in accordance with condition 5.
Supplier OR us OR we: Autorola Limited whose registered office is at Oakfield House, Tytherington Business Park, Tytherington, Macclesfield SK10 2XA (and which is registered in England and Wales under company registration number 03372055).
User: a person or firm who accesses Indicata
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Indicata in accordance with these Conditions. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.2 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any illustrations or descriptions of Indicata contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of Indicata described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SUPPLY OF INDICATA
3.1 In consideration of payment by the Customer of the Subscription Fee and the Customer agreeing to abide by these terms and conditions, the Supplier hereby grants to you a non-exclusive, non-transferable licence to use Indicata as set out in these terms and conditions.
3.2 The number of permitted Users or network use eligibility will be set out in the Order.
3.3 The Supplier reserves the right to change Indicata or the Website from time to time.
3.4 The Supplier does not guarantee that the Website or any content on it will always be available or be uninterrupted. The Supplier may suspend or withdraw or restrict the availability of all or any part of the Website for business and operational reasons.
3.5 The Suppler shall issue the Customer with a username and password for each of the total number of Users specified in the Order as soon as reasonably practicable after acceptance of an Order.
3.6 The username and password are unique to the User and the Customer shall ensure that the User keeps the username and password confidential. If usernames and passwords are used by unauthorised users or by more than the allocated number of Users then the Supplier shall be entitled to charge at its standard rates for the increased number of actual Users.
4. CUSTOMER'S OBLIGATIONS
4.1 The Customer shall (and shall ensure that all Users shall):
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with the Supplier in all matters relating to Indicata;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply Indicata, and ensure that such information is complete and accurate in all material respects;
(d) ensure and warrant to the Supplier that all material provided to the Supplier including any advertising material whether uploaded directly to the Website or any other site or provided directly to the Supplier is complete true and accurate in all material respects;
(e) keep usernames and passwords secure and confidential;
(f) inform the Supplier immediately in writing if it believes that usernames and/or passwords have been disclosed to unauthorised persons (whether intentionally or otherwise);
(g) comply with all applicable laws and regulations including any relevant import or export regulations; and
(h) ensure that all Users and permitted employees are aware of, understand and adhere to these terms and conditions.
4.2 The Customer shall not (and shall ensure that no Users shall):
(a) copy or download Indicata the Website or any part of them except where such copying is incidental to normal use of Indicata, or where it is necessary for the purpose of back-up or operational security;
(b) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify Indicata;
(c) make alterations to, or modifications of, the whole or any part of Indicata, nor permit Indicata or any part of it to be combined with, or become incorporated in, any other programs or software;
(d) copy content from the Website or extract or reutilise the whole or any part of data from it;
(e) disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of Indicata nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of Indicata with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of Indicata with another software program; and
(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(iii) is not used to create any software which is substantially similar to Indicata;
(f) provide or otherwise make available Indicata in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person without prior written consent from us;
(g) post or upload or publish any material that is unlawful, threatening, abusive, libellous, indecent, immoral or offensive onto the Website or to any website likely to be accessed by Indicata;
(h) place any advert on the Website or your own or any other website for any vehicle to which you do not have full legal title without the consent of the owner;
(i) place any advert or material on the Website or your own or any other website which contains false or misleading information;
(j) knowingly place any material on the Website or your own or any other website that contains any virus or malicious material;
(k) use Indicata via any communications network or by means of remote access unless specifically authorised in writing by us.
4.3 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of Indicata until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this condition 4.3; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Subscription Fee for Indicata shall be as set out in the Order confirmation sent by us.
5.2 The Subscription Fee is dependent on the package of Indicata selected and if the Customer upgrades Indicata at any time the Supplier shall be entitled to charge the relevant price for the upgraded package.
5.3 The Supplier reserves the right to increase the charges for Indicata by 5% on an annual basis with effect from each anniversary of the Commencement Date.
5.4 The Customer shall authorise payment of the Subscription Fee to be taken in twelve equal monthly payments in accordance with the direct debit instructions on the Order. The first such payment shall be taken by the Supplier within 7 days of the Commencement Date. Thereafter, the Customer shall make such direct debit payments monthly. The Customer shall ensure that the bank account designated by them for the direct payment has sufficient cleared funds for each payment. Time for payment shall be of the essence of the Contract. The Supplier shall issue a VAT receipt for each payment.
5.5 All amounts payable by the Customer under the Contract are stated exclusive of value added tax chargeable from time to time (VAT). The Customer shall pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of Indicata at the same time as payment is due for the supply of Indicata.
5.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under condition 10 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this condition 5.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with Indicata shall be owned by the Supplier (or our third party licensors). You acknowledge that the rights in Indicata are licensed (not sold) to you in accordance with these terms and conditions, and that you have no rights in, or to, Indicata other than the right to use them in accordance with these terms and conditions.
6.2 The Customer acknowledges that it has no right to have access to Indicata in source code form.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by these terms and conditions.
6.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing Indicata to the Customer and other customers.
7. DATA PROTECTION AND DATA PROCESSING
7.1 The Customer and the Supplier acknowledge that for the purposes of the Data Protection Act 2018, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data (as each terms is defined in that Act) and each party will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
7.2 The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer's instructions.
7.3 The Supplier may authorise a third party (subcontractor) to process the Personal Data.
8.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, or to such of its employees, officers, representatives, subcontractors or advisers who need to know such information and to the extent required for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this condition 8. Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
9. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION.
9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to condition 9.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business or business interruption;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
9.3 The Customer acknowledges that:
(a) information provided by Indicata is data collated from third party sources. The Supplier does not moderate or verify such data and as such is not responsible and makes no warranties for the accuracy, currency, authenticity, completeness or quality of such data;
(b) Indicata provides general market information and not specific commercial or investment advice on which the Customer should rely. Any decisions taken by the Customer are commercial decisions taken at its own risk and the Customer shall ensure that it carries out its own due diligence before entering into any commercial decision or transaction;
(c) specific product details or adverts are for information only. Any sale or purchase arrangements made between the Customer and any third party as a result of using Indicata are at the sole risk of the Customer;
(d) where the Website contains links to other sites and resources provided by third parties, these links are provided for the Customer's information only. Such links should not be interpreted as approval by the Supplier of those linked websites or information the Customer may obtain from them. The Supplier has no control over the contents of those sites or resources.
9.4 Subject to condition 9.1,the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the Subscription Fee for the year in which the circumstances giving rise to the claim arose.
9.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.6 The Customer shall indemnify the Supplier against all costs claims damages and losses suffered or incurred by the Supplier arising out of or in connection with any material breach by the Customer its agents or employees of these terms and conditions which for the avoidance of doubt shall include a breach of condition 4.
9.7 This condition 9 shall survive termination of the Contract.
10. TERM AND TERMINATION
10.1 The Contract shall commence on the Commencement Date and shall continue for a period of 12 months. Thereafter, the Contract may be terminated by either party giving not less than 30 days' written notice to the other party. The Customer notes and agrees that the initial minimum term of the Contract is therefore 13 months.
10.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
10.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Indicata under the Contract if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in condition 10.2(b) to condition 10.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all outstanding payments for Indicata;
(b) The licence to use Indicata and software granted pursuant to these terms and conditions shall cease with immediate effect and the Customer shall cease to use Indicata.
11.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
12. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control including without limitation failure of public or private telecommunications networks.
13.1 Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract [without the prior written consent of the Supplier].
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email at 9.00am on the first Business Day after sending.
(c) This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
13.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
13.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this condition shall limit or exclude any liability for fraud.
13.7 Third parties rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
13.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
13.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.