Contract covering the terms and conditions of use of MotorCheck
Definitions and Interpretations:
In these Terms, the following words shall have the following meanings:
"Access Codes": any user name, password and other identifying information by which the Customer accesses the Database;
"Agreement": the agreement between MotorCheck and the Customer on these Terms.
"CDL VIS Data": data provided by CDL Vehicle Information Services Limited (Company Number: SC264444), which may include data provided by the Driver and Vehicle Licensing Agency and/or other third party licensors.
"CDL VIS EULA": the terms and conditions on which the CDL VIS Data is supplied as notified by MotorCheck to the Customer from time to time, being as at the date of the Schedule as set out in the Appendix.
"Customer": the customer named in the Schedule.
"Customer Application": any application or tool by which the Customer enables Users to access the Database, as approved by MotorCheck from time to time under clause 3.3(d);
"Data": any and all information contained within the Database, including, if applicable, the CDL VIS Data;
"Database": the database specified in the Schedule;
"Fees": the fees payable by the Customer to MotorCheck under this Agreement;
"Guarantee" – The Guarantee provided by MotorCheck in accordance with clause 9 and the appendix to this Agreement.
"Initial Term": the initial term (if any) of this Agreement, as specified in the Schedule;
"Liability": any and all liability of MotorCheck in contract, tort (including, without limitation, negligence) or otherwise whether arising out of, in connection with or in relation to the Services, the Data or (where applicable) the Software or otherwise under or in connection with this Agreement;
"MotorCheck": Motor Data Limited T/A MotorCheck and MotorSpecs (09346806 registered in England and Wales);
"Payment Terms": the payment terms applying to the Fees, as set out in the Schedule;
"Permitted Use": the purposes for and manner in which the Customer and its Users are permitted to access the Database and use the Data, as specified in the Schedule or as otherwise agreed by the parties from time to time;
"Services": the services to be provided by MotorCheck under this Agreement, being either MotorCheck related to Data via Web Service or Online Query, as specified in the Schedule;
"Software": the software provided by MotorCheck for the purpose of accessing Data:
"Software Licence": MotorCheck’s standard software licence for the Software, a copy of which will be provided to the Customer on request;
"User": any person (including without limitation any employee of the Customer) who accesses the Database using the Software or a Customer Application;
"Data via Web Service": the service provided by MotorCheck by which the Customer is enabled to access the Database for the purposes of presenting that information to employees and third parties by means of the Customer’s own front-end applications; and
"Online Query": the service provided by MotorCheck by which the Customer is enabled to access the Database by means of the Software.
References to clauses and schedules are to the clauses of these Terms.
Headings are for convenience only and shall be ignored in interpreting these Terms.
In consideration of the Customer agreeing to pay MotorCheck the Fees and comply with its other obligations under these Terms, MotorCheck:
Agrees to provide the Services to the Customer; and
Licences the Data to the Customer for the Permitted Use for the Initial Term in each case subject to and in accordance with these Terms;
Upon the expiry of the Initial Term and any subsequent terms this Agreement shall automatically renew for a period of 12 months, subject to any lawful termination in accordance with clause 12.
ACCESSING THE SERVICE
Where the Services include Online Query;
MotorCheck shall make the Software available by either download and installation by the Customer or via login online, and
The Customer agrees that the provisions of the Software Licence shall govern its use of the Software;
The Customer shall:
Ensure that Users comply with the terms of the Software Licence, and
Be liable to MotorCheck for any breach of those terms by any User as if that breach were a breach by the Customer.
Where the services include Data via Web Service:
MotorCheck shall provide the Customer with Access Codes for the purpose of accessing the Database by means of Customer Applications;
The Customer shall be responsible for configuring all Customer Applications in order to provide access to the Database;
The Customer shall ensure that Users are able to access the Database only by means of Customer Applications, and shall ensure that Users do not have direct access to the Database other than by those means;
The Customer shall give MotorCheck full particulars of any Customer Application by which the Customer proposes to access the Database from time to time, and the Customer shall only be entitled to use Customer Applications that are approved by MotorCheck in writing (such approval not to be unreasonably withheld).
Where the services include the provision of CDL VIS Data the CDL VIS EULA shall apply to the provision of such CDL VIS Data and the Customer agrees to comply with the CDL VIS EULA and to procure and ensure compliance with the same by any person utilising the Services. In the event of any conflict between these Terms and the CDL VIS EULA, the provisions of the CDL VIS EULA shall prevail in relation to the CDL VIS Data. The CDL VIS EULA is available for download here.
USE OF DATA
The Customer shall use the Data only for the Permitted Use.
The Customer shall only permit the following persons to access the Database using the Services:
Access using Online Query: only the Customer’s employees or other personnel;
Access using Data via Web Service: the Customer’s employees or other personnel OR customers of the Customer.
The Customer shall:
Ensure that each User accessing the Database under clause 4.2 complies with the restrictions on how the Data may be used as set out in this Agreement and, if applicably, the CDL VIS EULA;
Ensure that MotorCheck has the right to bring proceedings directly against that User for any breach of those restrictions and
Without limitation to clause 4.2(b), be liable to MotorCheck for any breach of those restrictions by any User as if that breach were a breach by the Customer.
The Customer agrees:
Not to use any computerized or automated tool or application to search, index, test or otherwise obtain information from the Database, other than the Software or a Customer Application approved by MotorCheck under clause 3.3(d).
Not to systematically download Data or to store Data in a way that allows for later "offline" retrieval without accessing the Database as stored on the MotorCheck systems and not to refuse MotorCheck Data for any purpose other than the terms outlined in this Agreement and particularly within the listed Permitted Use;
Not to create any copy of the Database or of any part of the Database, or to create any other databases derived in whole or in part from the Data;
Not to use the Data to provide credit-reference services or moveable asset enquiry services to any other person; and
Not to permit any other person (including without limitation any User) to do any of the above.
The Customer agrees to assist MotorCheck in correcting or preventing any unauthorised use of the Data, and acknowledges that MotorCheck may from time to time implement tools or other controls on the Database to regulate or restrict unauthorised use (including without limitation any use of computerized or automated applications that are used to search, index, test or obtain information from the Database).
The Customer shall promptly notify MotorCheck of any infringements of copyright or database right in the Database or any unauthorised use of which the Customer becomes aware. The Customer shall cooperate fully with the MotorCheck in investigating any such unauthorised uses and taking reasonable steps to prevent a reoccurrence.
The Customer shall:
Comply with all applicable legislation in relation to its use of the Data, and
Ensure that it has all necessary registrations and licences for its use of the Data.
The Customer acknowledges that the Data is of a sensitive and confidential nature and includes Copyright data, and accordingly that a high level of security and confidentiality is necessary in relation to the Data.
Without limitation to the following provision of this clause, the Customer agrees to comply with any and all reasonable requirements notified to it by MotorCheck from time to time for the purpose of maintaining the security of the Data.
The Customer shall ensure that
All Access Codes are kept strictly confidential, and in particular (without limitation)
That the Access Codes are not disclosed to any User; and shall maintain appropriate technical and organisational security measures and procedures to prevent: unauthorised access to the System by any person; or unauthorised disclosure or obtaining of any Access Codes.
MotorCheck may issue new Access Codes to the Customer from time to time, and will do so within a reasonable time after the Customer requests that it do so. Except where MotorCheck considers a shorter period necessary for maintaining the security of any Data, any new Access Codes will come into force (and the previous Access Codes cease to apply) 24 hours after the new Access Codes are notified to the Customer.
The Customer shall inform MotorCheck immediately upon the Customer becoming aware of:
Any unauthorised access to the System;
Any unauthorised disclosure or obtaining of any Access Codes; or
The loss or theft of any equipment which the Customer (or any User) uses to access the Services.
The Customer is responsible for all use of the Services made by means of its Access Codes, and must pay any fees and charges incurred for those Services whether or not it authorises these fees and charges.
RECORDS AND AUDITING
The Customer shall:
maintain records of the use of Data in the form specified by MotorCheck from time to time, and including (without limitation) particulars of all Users and the Data accessed by each User; and
Permit MotorCheck (or its duly authorised agent or representative) access to those records for the purposes of inspection and audit, including the right to take copies of or extracts from the same.
The Customer agrees that MotorCheck may from time to time pass on copies of the records maintained under clause 6.1, along with details of the Fees payable by the Customer and any other information relating to the Customer or the Services, to any licensor of Data accessed by the Customer or any User.
MotorCheck will invoice the Fees to the Customer monthly on the same day of each month.
The Customer shall pay the Fees in accordance with the Payment Terms by electronic transfer to MotorCheck’s bank account as notified by MotorCheck to the Customer from time to time.
All sums payable under this Agreement are exclusive of VAT, which shall be payable at the same time as the sum to which it relates.
MotorCheck may revise the Fees annually on the anniversary of the Commencement Date with not less than 28 days’ notice in writing to the Customer.
If the customer fails to pay any amount payable by it under this Agreement, MotorCheck shall be entitled but not obliged to charge the Customer interest on the overdue amount, payable by the Customer immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly. MotorCheck reserves the right to claim interest and/or compensation.
MotorCheck warrants that;
It shall exercise reasonable care and skill in the provision of the Services; and
It has the right to enter into this Agreement and to licence the Customer to access and use the Data in accordance with this Agreement.
The Customer acknowledges that:
It has assessed for itself the suitability of the Database for its requirements;
The content and accuracy of the Database is outside the control of MotorCheck; and
The nature of the information in the Database is such that it is not appropriate for the Customer or any other person to make commercial decisions based solely on that information, and accordingly (without limitation to this clause 8.2). MotorCheck does not warrant that the Database will:
Meet the Customer’s requirements; or
Be free of errors or omissions.
The warranties and conditions stated in this Agreement are in lieu of all other warranties, conditions or other terms, whether express or implied, statutory or otherwise, all of which are expressly excluded, including, without limitation, any implied warranties or conditions as to satisfactory quality, fitness for a particular purpose or as to the use of reasonable skill and care.
The Guarantee set out in the Appendix to this Agreement shall be incorporated into this Agreement and MotorCheck and the Customer shall comply with the obligations imposed thereby.
The Guarantee shall constitute the only basis of a claim by the Customer against MotorCheck.
The Customer shall not have a claim against MotorCheck in the event that it fails to comply with its obligations under the Guarantee or if it fails to comply with the claims procedure set out therein.
The Guarantee constitutes the total and maximum liability of MotorCheck to the Customer and any liability not provided for by the Guarantee shall be excluded.
Nothing in this Agreement shall limit MotorCheck’s liability for:
Personal injury or death caused by its negligence; or
Subject to clause 8.3, MotorCheck shall have no Liability for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):
Loss of revenue; loss of actual or anticipated profits (including for loss of profits on contracts); loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to or corruption of data; or
Any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, whether or not such loss or damage is of a type specified in clause 10.1 above.
Subject to clauses 8.3, 9 and 10.1 above, MotorCheck’s total Liability for any one claim or series of connected claims shall be limited to the greater of:
The total Fees payable to the Customer in the period of one month ending on the date of that event (or first in the series of connected events).
The Customer shall indemnify and keep indemnified MotorCheck from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation any direct or indirect consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with the Customer’s negligence, default or breach of these Terms, including without limitation any unauthorised use of the Data.
MotorCheck may suspend the Services (and thus all access to the Database by the Customer and its Users) with immediate effect and without prior notice if:
Any Fees or other sum due from the Customer to MotorCheck are overdue; or
The Customer is in breach of any of the other terms of this Agreement until such time as all outstanding Fees or other sums are paid or all such breaches remedied, as applicable.
MotorCheck may suspend the Services in the event that it is temporarily unable to perform the Services as a result of the unavailability of the Data or any other circumstances rendering the Services incapable of performance.
MotorCheck shall give the Customer notice of any suspension as soon as reasonably practicable after that suspension comes into effect.
Either party may terminate this Agreement by not less than three months’ notice in writing to the other, such writing to expire on or after the last day of the Initial Term (if any).
Either party may give notice in writing to the other terminating this Agreement with immediate effect if:
The other party commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified of the breach; or
If an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or if a receiver is appointed of any of the other party’s assets or undertakings of if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order or if the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
MotorCheck may terminate this Agreement by notice in writing to the Customer if any Fees or other sum due from the Customer to MotorCheck remain outstanding more than 14 days after the due date for payment of those Fees or that other sum.
MotorCheck may at any time terminate this Agreement by notice in writing to the Customer in the event that it is unable to perform the Services as a result of the unavailability of the Data or any other circumstances rendering the Services incapable of performance.
Termination of this Agreement however caused shall be without prejudice to any rights or liabilities accrued at the date of termination.
The following provisions of this Agreement shall survive termination: Definitions & Interpretations, 12.5, 12.7, Confidentiality, Notices and General.
Upon termination of this Agreement (at any time for any reason):
All sums owed to MotorCheck by the Customer shall become payable immediately;
The Customer’s rights under clause 2 shall cease immediately; and
Any Software Licence shall terminate immediately.
Notice may not be validly given by email.
Each party agrees and undertakes that during the term of this Agreement and thereafter it will keep confidential and will not use for its own purposes not without the prior written consent of the other party disclose to any third party all information of a confidential nature (including trade secrets and information of commercial value) which may become known to that party from the other party ("confidential information") unless the information is public knowledge or already known to that party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of that party from a third party.
To the extent necessary to implement the provisions of this Agreement each party may disclose the confidential information to those of its employees as may be reasonably necessary or desirable provided that before any such disclosure each party shall make those employees aware of its obligations of confidentiality under this Agreement and shall at all times procure compliance by those employees with them.
Any notice or other communication given under this Agreement shall be in writing and shall be served by one of the following methods:
Delivering it personally;
Sending it by registered first-class post;
To the address and for the attention of the relevant party as specified in clause 13.3 or as otherwise notified by that party to the other party from time to time.
Any such notice or other communication shall be deemed to have been received: if delivered personally, at the time of delivery; in the case of registered first-class post, 48 hours from the time of posting; in the case of fax, at the time of transmission.
If deemed receipt under clause 14.2 occurs other than between the hours of 9am and 5pm (at the recipient’s local time) on a Business Day, then the notice shall be deemed to be received at 9am on the next Business Day.
The contact details for each party are as follows: Motor Data Ltd., t/a: MotorCheck, Kemp House, 160 City Road, London, EC1V 2NX, United Kingdom. Email: firstname.lastname@example.org). Marked for the attention of the Managing Director. Customer: You (your details submitted on registration)
Any notice or other communication given under any clause that expressly excludes service of such notice by email (including without limitation the Termination clause) shall not be validly served if sent by email.
The Customer shall not assign, transfer, charge or deal in any other manner with this Agreement or its rights under it or part of it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Agreement, without the prior written consent to MotorCheck.
MotorCheck may assign, transfer, charge or deal in any other manner with the benefit and burden of this Agreement.
No Partnership or Agency: Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other.
Entire Agreement: This Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, negotiations and discussions between the parties relating to it.
Amendments: Save as expressly provided in this Agreement, no amendment or variation of this Agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.
Waiver: The failure of a party to exercise or enforcement of it at any time or times thereafter.
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
Rights of Third Parties: A person who is not a party to this Agreement has no right to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of England and Wales and each party hereby irrevocably submits to the exclusive jurisdiction of the English Courts.
Solus Supply: During the contract period the customer agrees to use only MotorCheck for the supply of any vehicle registration number or VIN linked data.