These terms were last updated on 2 April 2016.
"Access Fee" - means the joining fee and thereafter a monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the website.
"Confidential Information" - includes all information exchanged between the parties to this agreement, whether in writing, electronically or orally, including the Software but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Data" - means any data inputted by You or on your behalf for the purpose of using the Software or facilitating your use of the Services.
"Intellectual Property Right" - means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Software" - means the software available (as may be changed or updated from time to time by CDN) via the website.
"CDN" - means Car Delivery Network Ltd, which is a company registered in England.
"You" - means the person reading this document and includes your employees, consultants, representatives and agents where applicable.
2.1 CDN grants You the right to access and use the Software via the Website with the user roles according to your subscription type. This right is non-exclusive and non-transferable and limited by these terms.
2.2 CDN reserves the right to reject or cancel your subscription to the Software at any time and for any reason and without notice to You.
3.1.1 Upon registration of your organisation within CDN for full access to the Software, an invoice for the Access Fee will be issued to the billing contact. Further invoices will be issued following each subsequent purchase of credit. All invoices are payable upon receipt. A proportion of the Access Fee shall be taken as credit in respect of subsequent monthly fees on the first day of each month following initial payment. You must ensure that sufficient credit is purchased to enable automatic collection of the monthly fee. Where there is insufficient credit, the account will be suspended until further credit is purchased. For the avoidance of doubt, credit is non-transferable and non-refundable. You are responsible for payment of all taxes and duties in addition to the Access Fee.
3.1.2 CDN reserves the right to waive or change the basis for the calculation of the Access Fee and the monthly fee at any time. Any changes will be communicated to You via the Website.
You must only use the Software and Website for your own lawful internal business purposes, in accordance with these terms and any notice sent by CDN or condition posted on the website.
You will ensure that all usernames and passwords required to access the Software are kept secure and confidential. You will immediately notify CDN of any unauthorised use of your passwords or any other breach of security and CDN will reset your password.
As a condition of these terms, when accessing and using the Software, You must:
not attempt to undermine the security or integrity of CDN's computing systems or networks or, where the software is hosted by a third party, that third party's computing systems and networks;
not use, or misuse, the Software in any way which may impair the functionality of the Software or Website, or impair the ability of any other user to use the Software or website;
not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Software is hosted;
not transmit, or input into the Software any files that may damage any other person's computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use);
not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software or the website except as is strictly necessary to use either of them for normal operation; and
not allow any unauthorised access to, or use of the Software and, in the event of any such unauthorised access or use, promptly notify CDN.
Use of the Software may be subject to limitations, including but not limited to monthly transaction volumes, the number of calls you are permitted to make against CDN’s application programming interface. Any such limitations will be specified within the Software.
As a condition of these terms, if you use any communication tools available through the website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Software including (but not limited to): offers of goods or services for sale, files that may damage any other person's computing devices or software, content that may be offensive to any of our other users, or material in violation of any law (including material that is protected by copyright or trade secrets which you do not have the right to use). When You make any communication on the website, You represent that You own the content of the communication. CDN is under no obligation to ensure that the communications on the website are legitimate or that they are related only to the use of the Software. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, CDN does reserve the right to remove any communication at any time in its sole discretion.
You shall defend, indemnify and hold harmless CDN against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Your use of the Software, provided that:
You are given prompt notice of such a claim;
CDN provides reasonable co-operation to You in the defence and settlement of such claim, at Your expense; and
You are given sole authority to defend or settle the claim.
Save for the provisions in clause 5.2.1, unless the relevant party has the prior written consent of the other or unless required to do so by law:
Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these terms. Neither party will, without the prior written consent of the other, disclose or make any confidential information available to any person, or use the same for its own benefit, other than as contemplated by these terms.
Each party's obligations under this clause will survive termination of these terms.
The provisions of clauses 4.1.1 and 4.1.2 shall not apply to any information which:
is or becomes public knowledge other than by a breach of this clause;
is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
is independently developed without access to the confidential information.
Title to, and all Intellectual Property Rights in the Software, the Website and any documentation relating to the Software remain the property of CDN (or its licensors).
5.2.1 Save for any Data which constitutes personal data under the Data Protection Act 1998, CDN shall be free to copy, disclose, distribute, incorporate and otherwise use the Data and images, sounds, text and other things embodied therein for any and all commercial or non-commercial purposes. CDN adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. CDN expressly excludes liability for any loss of Data no matter how caused.
5.2.3 You shall ensure that you are entitled to transfer the relevant personal data to CDN to lawfully use, process and transfer and ensure all relevant third parties have been informed of and have given their consent to such use, processing and transfer as required by all applicable data protection legislation including the transfer and storage of personal data outside the EEA.
5.3.1 If You enable third-party applications for use with the Software, You acknowledge that CDN may allow providers of those third-party applications to access your Data as required for the interoperation of such third-party applications with the Software. We shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by third-party application providers.
5.3.2 Links to third-party websites on the Website are provided solely for your convenience. You acknowledge that the use of any third-party websites is done so solely at your own risk. CDN makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of such third-party website. CDN does not endorse or approve any third-party website nor the content of any third-party website made available via the Website.
You acknowledge that:
6.1.1 You are authorised to use the Software and the Website and to access the information that You access using the Software and the Website (whether that information is your own or that of anyone else).
6.1.2 If you are using the Software and accessing the Website on behalf of or for the benefit of an organisation (whether a body corporate or not) then CDN will assume that You have the right to do so and that organisation will be liable for your actions or omissions (including any breach of these terms).
6.1.3 The provision of, access to, and use of, the Software is on an "as is, where is" basis and at your own risk.
6.1.4 CDN does not warrant that the use of the Software will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software. CDN is not in any way responsible for any such interference or prevention of your access or use of the Software.
6.1.5 It is your sole responsibility to determine that the Software meets the needs of your business.
CDN warrants that it has all necessary licences, consents and permissions necessary for the performance of its obligations under these terms. CDN does not warrant that the Software will meet your requirements or that it will be suitable for your purposes. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
These terms are for trade users only. You warrant and represent that You are a trade user and You are acquiring the right to access and use the Software and agreeing to these terms for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Software, the Website or these terms.
7.1 You recognise that the Software facilitates access to a variety of users for the provision of vehicle transportation and delivery and CDN accepts no responsibility for those services and it is a matter for You to confirm your contractual relationship with any customer or service provider.
7.2 To the maximum extent permitted by law, CDN excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of data, profits and savings) or damage resulting, directly or indirectly, from the use of, or reliance on, the Software or caused by errors or omissions in any information provided by the Supplier. For the avoidance of doubt, nothing in these terms excludes the liability of CDN for death or personal injury caused by CDN’s negligence or for fraud or fraudulent misrepresentation.
7.3 If You suffer loss or damage as a result of CDN's negligence or failure to comply with these terms, any claim by You against CDN arising from CDN's negligence or failure will be limited in respect of any one incident, or series of connected incidents to the Access Fees paid by You in the previous twelve months.
7.4 If You are not satisfied with the Software, your sole and exclusive remedy is to terminate these terms in accordance with Clause 8.
There will be no refund for any remaining prepaid period.
These terms will continue for the period covered by the Access Fee paid in clause 3.1. These terms will automatically continue for the same period unless either party terminates these terms by giving notice to the other party at least 30 days before the end of the relevant payment period.
8.4.1 breach any of these terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
8.4.2 breach any of these terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment more than 30 days overdue); or
8.4.3 the paying subscriber goes into liquidation or has a receiver or manager appointed of any of its assets or becomes insolvent, or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction, terminate these terms and your use of the Software and the Website;
8.4.4 suspend for any definite or indefinite period of time, your use of the Software and the Website;
8.4.5 take either of the actions in sub-clause 3 and 4 of this clause 8(4) in respect of any other persons in your organisation or who have access to your information or that of your organisation
CDN has the right to terminate these terms in writing with immediate effect.
Termination of these terms is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. On termination of this agreement You will:
8.5.1 remain liable for any accrued charges and amounts which become due for payment before or after termination; and
8.5.2 immediately cease to use the Software and the Website.
Clauses 3.1, 3.6, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these terms.
8.6 Upon Termination
CDN may destroy or otherwise dispose of any of the Data in its possession following termination.
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting CDN. If You still need technical help, please check the support provided online by CDN or failing that email us at email@example.com.
9.2.1 CDN undertakes that the provision of the Software will be performed with reasonable skill and care. Whilst CDN intends that the Software should be available 24 hours a day, seven days a week, it is possible that on occasion it may be unavailable to permit maintenance or other development activity to take place. If for any reason CDN have to interrupt the Software for longer periods than CDN would normally expect, we will use reasonable endeavours to publish in advance details of such activity on the website.
9.2.3 You recognise that the Software facilitates access to a variety of users for the provision of vehicle transportation and delivery and CDN accepts no responsibility for those services and it is a matter for You to confirm your contractual relationship with any customer or service provider.
If either party waives any breach of these terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
You may not assign or transfer any rights to any other person without CDN's prior written consent.
Terms are governed by the laws of England and Wales and you hereby submit to the exclusive jurisdiction of the courts of England and Wales for all disputes arising out of or in connection with these terms, without reference to any conflicts of laws.
If any part or provision of these terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this agreement will be binding on the parties.
Any notice given under these terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to CDN must be sent to firstname.lastname@example.org or to any other email address notified by email to you by CDN. Notices to you will be sent to the email address which you provided when setting up your access to the software.
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Nothing in these terms is intended to or shall operate to create a partnership between You and CDN or to authorise You or CDN to act as agent for the other.
CDN shall have no liability to You under these terms if it is prevented from or delayed in performing its obligations under these terms by acts, omissions or accidents beyond its reasonable control. CDN will notify You of any such event as soon as reasonably practicable together with its expected duration.
If any dispute arises in connection with these terms, the parties shall attempt in good faith to resolve such dispute. If the parties are unable to resolve the dispute within 30 days of such dispute being notified to the other party, the parties agree to enter into mediation to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed, the mediator will be nominated by CEDR. Neither party may commence any court or arbitration proceedings in relation to any dispute arising out of these terms until it has attempted to settle the dispute by mediation and the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.