These Terms and Conditions governs the use by you (“User”) of the Platform (“SaaS Services”) of ALTELIUM INSIGHTS LIMITED (incorporated and registered in England and Wales under company registration number 12024365 the registered office of which is at Office 4, Perch Studios, Wesley Lane, Bicester, United Kingdom, OX26 6JU (“Supplier”).
- The Supplier offers a cloud-based software via its Platform under which it provides SaaS Services, particularly reports on the state of health of the traction battery of electric vehicles;
- The Supplier has issued a Licence to Gardx International Limited (“Gardx”) to use the SaaS Services;
- By virtue of the Licence Gardx has issued a Sub-Licence (“Sub-Licence”) to the motor vehicle dealer/ repairer (“Dealer/ Repairer”) for whom the User works to use the SaaS Services in the Territory/ies;
- In accordance with the Sub-Licence, the Dealer/ Repairer has authorised the User to use the SaaS Services;
- The User now agrees to use the SaaS Services in accordance with the Licence and these Terms and Conditions;
- Onboard Diagnostic Devices
- (F) Pursuant to the Sub-Licence, the Supplier and Gardx entered into a Master Hire Agreement in respect of on-board diagnostic devices (“Devices”) in relation to the SaaS Services;
- (G) By virtue of such Master Hire Agreement Gardx has entered into Terms of Re-Hire (“Terms of Re-Hire”) with the Dealer/ Repairer;
- (H) In accordance with the Terms of Re-Hire, the Dealer/ Repairer has authorised the User to use the Devices;
- (I) The User now agrees to use the Devices in accordance with the Terms of Re-Hire and these Terms and Conditions;
IT IS AGREED AS FOLLOWS:
- DEFINITIONS AND INTERPRETATION
The definitions and rules of interpretation in the Schedule to these Terms and Conditions: Schedule: Glossary of Terms shall apply to these Terms and Conditions.
- STRUCTURE OF TERMS AND CONDITIONS
2.1 Section One of these Terms and Conditions relate to the SaaS Services.
2.2 Section Two of these Terms and Conditions relate to the use of Devices.
2.3 Section Three contains general provisions that relate to both Section One and Section Two.
2.4 These Terms and Conditions shall be without prejudice to any rights of the Supplier under the Sub-Licence or the Terms of Re-Hire.
2.5 Any waiver under these Terms and Conditions by the Supplier shall not affect the rights of the Supplier under the Sub-Licence or the Terms of Re-Hire.
SECTION ONE – SAAS SERVICES
- COMMENCEMENT AND DURATION
- This Section One of these Terms and Conditions shall come into force and effect on the effective date of the Sub-Licence and shall continue in force and effect for the term of the Sub-Licence (“Term”) subject to any early termination of the Sub-Licence.
2.1 The right of the User to access and use the SaaS Services are limited to the express rights granted in the Sub-Licence and these Terms and Conditions.
2.2 The User agrees to comply with the terms of the Sub-Licence and these Terms and Conditions.
- USAGE RIGHTS OF THE SAAS SERVICES AND DOCUMENTATION
3.1 Scope of Use. Notwithstanding anything in these Terms and Conditions, the User shall not whether before, during or after the Term:
(a) save to the extent expressly permitted under these Terms and Conditions, to the minimum extent permitted by Applicable Law: (i) access, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, translate, localise, adapt, rent, lease, loan, create or prepare derivative works of, all or any portion of the Platform, the SaaS Services and/or the Documentation (as applicable) in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform or the SaaS Services;
(b) access or use of (in whole or in part) the Platform, the SaaS Services, any or the Documentation: (i) in order to build or enhance a competitive product or service; (ii) in order to build or enhance a product or service using similar ideas, features, functions or graphics of (in whole or in part) the Platform, the SaaS Services or the Documentation; or (iii) to copy any ideas, features, functions or graphics of (in whole or in part) the Platform, the SaaS Services or the Documentation; or (iv) in any manner that is or may be competitive to the Supplier or any of its Affiliates;
(c) attempt to obtain, or assist third parties in obtaining, unauthorised access to or interfere with the proper working of (in whole or in part) the SaaS Services or Documentation, including any attempt to circumvent security, licence control or other protection mechanisms;
(d) except to the extent expressly permitted in these Terms and Conditions, use the Platform, the SaaS Services, or the Documentation to provide services to any third party or otherwise commercialise or attempt to commercialise (whether for money or other consideration) the Platform, the SaaS Servicesor the Documentation;
(e) whether directly or indirectly: (i) disclose to, or permit the disclosure to, any Supplier Competitor, or permit any Supplier Competitor to access or use, the Platform, the SaaS Services, the User Instance, the Documentation, any Supplier Confidential Information or materials comprising Supplier IPR; or (b) otherwise disclose or use the Platform, the SaaS Services the Documentation, any Supplier Confidential Information or materials comprising Supplier IPR other than as expressly permitted under these Terms and Conditions;
(f) use the Platform or the SaaS Services as an application software provider or in any time-sharing or other commercial arrangement of any kind that makes the Platform or the SaaS Services available to third-parties primarily for the third party’s own use (unless it is expressly agreed to in writing by the parties);
(g) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property, and, in each case, the Supplier reserves the right, without liability or prejudice to its other rights to the User or other Service Recipient, to disable the User’s or Service Recipient’s access to any material that breaches the provisions of this clause;
(h) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems;
(i) modify, interfere with, or disrupt the security, integrity or performance of the Platform or the SaaS Services, including the Platform’s source code, API or any third-party code or data contained therein;
(j) permit direct or indirect access to or use of the Platform or the SaaS Services in a way that circumvents the contractual usage terms, or use any of Platform or the SaaS Services to access or use any of Supplier IPR except as expressly permitted under these Terms and Conditions.
3.2 Unauthorised Access. The User shall use all reasonable endeavours and take all steps required to prevent any unauthorised access to, or use of, the Platform or the SaaS Services and, in the event of any such unauthorised access or use, immediately notify the Supplier in writing.
- 4. USER’S OBLIGATIONS
4.1 Notwithstanding anything in these Terms and Conditions, the User shall not bring any claim, action or proceeding against the Supplier, its Personnel or subcontractors under or in connection with these Terms and Conditions, the Services or the performance of the Supplier’s other obligations under these Terms and Conditions.
4.2 General. The User shall (a) without affecting its other obligations under these Terms and Conditions, comply with all Applicable Laws applicable to it in the exercise of its rights and the performance of its obligations under these Terms and Conditions and its other activities in connection with these Terms and Conditions (including the access and use of the Services); (b) carry out all User responsibilities and obligations set out in these Terms and Conditions in a timely and efficient manner and in accordance with any timeframes or timetables set out herein; (c) comply with all reasonable instructions and flow-down terms and where applicable, made available by the Supplier to the User from time to time; (d) promptly notify the Supplier if the User becomes aware of any breach of these Terms and Conditions by the User; (e) provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the User or a third party) reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects.
SECTION 2 – USE OF ON-BOARD DIAGNOSTIC DEVICES
- 1. COMMENCEMENT AND DURATION
This Section Two of these Terms and Conditions shall come into force and effect on the effective date of the Terms of Re-Hire and shall continue in force and effect for the term of the Terms of Re-Hire (“Term”) subject to any early termination of the Terms of Re-Hire.
- 2. TERMS OF RE-HIRE
2.1 The right of the User to access and use the Devices are limited to the express rights granted in the Terms of Re-Hire and these Terms and Conditions.
2.2 The User agrees to comply with the terms of the Terms of Re-Hire and these Terms and Conditions.
- 3. CARE OF DEVICES
3.1 User shall:
(a) not open any Device, not remove any labels from, add labels to and/or interfere with the Devices, their working mechanisms or any other parts of them and shall take reasonable care of the Devices and only use them for their proper purpose in a safe and correct manner in accordance with the Documentation;
(b) notify Supplier immediately after any breakdown, loss and/or damage to the Devices;
(c) take adequate and proper measures to protect the Devices from theft, damage and/or other risks;
(d) keep the Devices at all times in its possession and control and not to remove the Devices from the country where Dealer/ Repairer is located and/or the country where Supplier is located without the prior written consent of Supplier;
(e) not continue to use Devices where they have been damaged and will notify Supplier immediately if the Devices are involved in an accident resulting in damage to the Devices, other property and/or injury to any person; and
(f) ensure that only persons adequately and sufficiently qualified and trained to operate the Devices use the Devices;
(g) not use the Devices for any purpose other than specified in the Terms of Re-Hire;
(h) not repair, attempt to repair, modify, or alter the Devices without the prior written permission of Supplier;
(i) not deal with ownership or any interest in the Devices. This includes but is not limited to selling, assigning, mortgaging, pledging, charging, securing, hiring, withholding, exerting any right to withhold, disposing of and/or lending.
SECTION THREE – GENERAL PROVISIONS
- PRIVACY AND DATA
2.1 Exclusions. The provisions of this clause shall not apply to any Confidential Information to the extent that: (a) it is or becomes generally available to the public (other than as a result of its disclosure by the Receiving Party or its Permitted Recipients in breach of this clause); (b) it was available to the Receiving Party on a non-confidential basis before disclosure by the Disclosing Party; (c) it was, is or becomes available to the Receiving Party on a non-confidential basis from a person who is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party; (d) the parties agree in writing it is not confidential or may be disclosed; or (e) the Receiving Party can evidence that it is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party and without referencing or using any Confidential Information of the Disclosing Party.
2.2 Non-disclosure and Use. Each party shall keep the other party’s Confidential Information secret and confidential and shall not: (a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with these Terms and Conditions (including, in the case of the Supplier, performing the Services and its other obligations under these Terms and Conditions, monitoring, supply chain management, subcontracting, governance, audit and compliance) or otherwise as permitted under these Terms and Conditions, (each a Permitted Purpose); or (b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause. Notwithstanding anything in these Terms and Conditions, the User shall not disclose or permit the access to, use or disclosure of, any Confidential Information of the Supplier by or to any Supplier Competitor.
2.3 Permitted Disclosures. A party may disclose the other party’s Confidential Information to those of its Permitted Recipients who need to know such Confidential Information for the Permitted Purpose, provided that: (a) it informs such Permitted Recipients of the confidential nature of the Confidential Information before disclosure; and (b) at all times, it is responsible for such Permitted Recipients’ compliance with the confidentiality obligations set out in this clause.
2.4 Other Disclosures. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure. A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure. The Supplier may disclose the User’s Confidential Information to a shareholder of, or investor in, the Supplier or its Affiliates or a person considering the purchase of the Supplier’s or any of its Affiliate’s shares or business, where that person reasonably needs to be provided with information about these Terms and Conditions, is subject to reasonable confidentiality obligations and for use in connection with such shareholding, investment or purchase or any other Permitted Purpose.
2.5 Reservation of Rights and No Warranties. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these Terms and Conditions are granted to the other party, or are to be implied from these Terms and Conditions. Except as expressly stated in these Terms and Conditions, no party makes any express or implied warranty or representation concerning its Confidential Information.
Anti-Corruption. The User shall: (a) comply with all Applicable Laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including the Bribery Act 2010 (the “Relevant Requirements”); (b) not engage in any activity, practice or conduct abroad which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; (c) have and shall maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and will enforce them where appropriate.
- INFORMATION SECURITY
The User shall comply with the provisions of any Information Security Policy issued by the Supplier from time to time.
- INTELLECTUAL PROPERTY RIGHTS
Notwithstanding any other provision of these Terms and Conditions, all Intellectual Property Rights in and to the Supplier IPR, shall vest in and remain vested in the Supplier.
- 6. SUSPENSION
6.1 Right to Suspend. The Supplier may (but shall not be obliged to) suspend the SaaS Services (whether in whole or in part) or the User’s right to access and/or use the SaaS Services and/or the Support Services (or any part thereof) if: (a) the Supplier considers that such suspension is necessary or desirable to ensure the integrity, security, functionality or operation of the SaaS Services or the Supplier Systems (or any part thereof) or any data or information stored on, processed by or incorporated in the SaaS Services or the Supplier Systems; (b) the User is in breach of the Acceptable Use Policy (or the Supplier reasonably suspects that any of the User is in breach of the Acceptable Use Policy); (c) the Supplier knows or reasonably suspects that an Authorised User has disclosed his/her user credentials or passwords or such credentials or passwords are otherwise compromised; and/or (d) in circumstances where the Hosting Provider has threatened to or has actioned its right to suspend or cease provision of the hosting services (in whole or in part) provided by that Hosting Provider in respect of the SaaS Services or the Support Services(or part thereof); and/or (e) if the User has not paid any amount due and payable by the Dealer/ Repairer under these Terms and Conditions.
6.2 Exercise of the Right to Suspend. Unless the Supplier reasonably believes that an immediate suspension is required in accordance with clause 6.2 and to the extent practicable, Supplier will provide reasonable advance notice of any suspension of access and/or use of the SaaS Services (in whole or in part) to User and provide the User a reasonable opportunity (in the Supplier’s reasonable opinion) to take steps to avoid any such suspension (to the extent possible or practicable). The Supplier shall not exercise its rights under clause 6.1 in a manner which is disproportionate or capricious. If any suspension under clause 6.1 requires the User to take any action(s) in order to implement that suspension, the User shall promptly take or procure the taking of such action(s) as the Supplier may require or request to give effect to the suspension.
- 7. VARIATIONS AND CHANGE
7.1 Variations. Unless otherwise expressly stated in these Terms and Conditions, no variation to these Terms and Conditions shall be valid unless it is in writing and signed by a duly authorised representative of the Supplier and the User or otherwise made in accordance with the remainder of this clause.
- 8. NOTICES
8.1 Address. Any notice, request, consent, claim, demand, waiver, or other communications given to a party under or in connection with these Terms and Conditions shall have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this clause):
If to Supplier: Altelium Insights Limited
Office 4, Perch Studios, Wesley Lane, Bicester OX26 6JU, United Kingdom
Ed Grimston/ The Directors
and by email to firstname.lastname@example.org
If to the User: by email to the User at the address held by the Supplier.
8.2 Deemed Receipt. Any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting; or (c)if sent if sent by email, provided the sender receives no notice of non-delivery or equivalent, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
9.1 Assignment and other dealings. Neither party may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under these Terms and Conditions, however, the Supplier may assign or novate these Terms and Conditions (in whole or in part): (a) to an Affiliate as part of an internal restructure of its corporate group; (b) to any person which purchases all or substantially all of the assets or business of the Supplier; or (c) (including by an assignment by way of security) for the purposes of, or in connection with, the financing (whether in whole or in part) of any of its working capital or other requirements, and, in each case, the Dealer/ Repairer shall enter into such documents as are reasonably requested by the Supplier for such purpose. Except as otherwise expressly provided in these Terms and Conditions, these Terms and Conditions are binding on each Party’s successors and permitted assignees, which successors and assignees shall also have the right to enforce the provisions of these Terms and Conditions.
9.2 Waiver. A waiver of any right or remedy under these Terms and Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions 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 these Terms and Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
9.3 Rights and remedies. The rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
9.4 Entire agreement. These Terms and Conditions (including the documents referred to in it) constitutes the entire agreement between the parties relating to the subject matter of these Terms and Conditions and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into these Terms and Conditions 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 these Terms and Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms and Conditions.
9.5 Severance. If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms and Conditions. If any provision or part-provision of these Terms and Conditions is deemed deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
9.6 Third party rights. Except to the extent expressly set out in these Terms and Conditions by reference to this clause these Terms and Conditions does not give rise to any rights (including under the Contracts (Rights of Third Parties) Act 1999) for any person that is not a party to these Terms and Conditions to enforce any term of these Terms and Conditions. No consent from a third party (including any person having the right to enforce any provision of these Terms and Conditions other than the parties hereto) shall be required for the variation (including any release or compromise in whole or in part of any liability) or termination of these Terms and Conditions, even if that variation or termination affects the benefit conferred on any or all of those third parties.
9.7 Governing Law. These Terms and Conditions 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.
9.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including any non-contractual disputes or claims) arising out of or in connection with these Terms and Conditions or its subject matter or formation.
- SCHEDULE – GLOSSARY OF TERMS