Customer Licence Agreement
PLEASE READ THIS CUSTOMER LICENCE AGREEMENT (“LICENCE”) CAREFULLY
We, Garashield Limited, a company incorporated and registered in England and Wales with company number 10094029 whose registered office is at Suite A1 Arden Press House Arden Press Way, Letchworth Garden City, England SG6 1LH (“Garashield”) are the entire legal and beneficial owner of the Garashield Software.
Garashield is willing to license you (the “Customer”) to use the Garashield Software on the terms set out in this Licence.
1.1 The definitions and rules of interpretation in this clause apply in this Licence.
“ADG Ltd” means Auto Data Guru Ltd, a company incorporated and registered in England and Wales with company number 09103584 whose registered office is at 12 The Broadway, St. Ives, Cambridgeshire, England PE27 5BN.
“Affiliate” includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.
“Credit” means the equivalent of £1.205 (or such other amount as Garashield shall from time to time notify the Customer) which the owner of the credit can use against the cost of an individual Order. Each credit can be redeemed against one individual Order. A credit has a duration of 1 year. Credits shall be construed accordingly.
“DVLA” means the Driver and Vehicle Licensing Agency.
“DVLA Data” means VRM lookup, including vehicle identification number, make, model, colour, date of first registration, body, fuel type and CO2.
“DVLA Data Caching” means the temporary or permanent storage of DVLA Data.
“End-user” means a consumer who contracts with the Customer.
“Garashield Software” the computer program listed in Annex 1 and any Maintenance Release which is acquired by the Customer during the subsistence of this Licence.
“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.
“Maintenance Release” release of the Garashield Software that corrects faults, adds functionality or otherwise amends or upgrades the Garashield Software, but which does not constitute a New Version.
“New Version” any new version of the Garashield Software which from time to time is publicly marketed and offered for purchase by Garashield in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
“Order” means each individual order by the Customer for a vehicle service, maintenance or repair job documented by the Garashield Software. An Order is placed each time the Customer creates a new job on the Garashield Software. Orders shall be construed accordingly.
“Portal” means the portal used by the Customer and End-users to access data in respect of the End-users vehicle.
“Specification” the document detailing the specification of the Garashield Software which is annexed to this Licence.
“Technical Data” means data about a vehicle, including but not exclusive to, data obtained from a VRM lookup, including vehicle identification number, make, model, colour, date of first registration, body, fuel type, CO2, MOT status, tax status, and technical data used in the service, maintenance and repair of vehicles including but not exclusive to relevant recalls, diagnostics plug location, timing belt interval, tyre pressures, torque settings, engine oil, fluids and brake pads and discs minimums.
1.2 “Holding company” and “subsidiary” mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
1.3 Clause, Schedule and paragraph headings shall not affect the interpretation of this Licence.
1.4 Unless the context otherwise requires:
1.4.1 words in the singular shall include the plural and in the plural shall include the singular;
1.4.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.4.3 a reference to one gender shall include a reference to the other genders; and
1.4.4 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.
1.5 In the case of conflict or ambiguity between any provision contained in the body of this Licence and any provision contained in the schedules or appendices, the provision in the body of this Licence shall take precedence.
1.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.7 References to clauses and Schedules are to the clauses and Schedules of this Licence and references to paragraphs are to paragraphs of the relevant Schedule.
1.8 The Schedules and Annexes form part of this Licence and shall have effect as if set out in full in the body of this Licence. Any reference to this Licence includes the Schedules and Annexes.
2.1 On receipt of the Fees and in consideration of the Fees paid by the Customer to Garashield, Garashield grants to the Customer a non-exclusive licence to use the Garashield Software and any data generated by the Garashield Software until such time that the Customer has used all of its Credits.
2.2 The Customer shall obtain a copy of the Garashield Software as follows:
2.2.1 on receipt of the device fee (such fee to be determined and notified by Garashield to the Customer), Garashield will deliver to the Customer a device (“the Device”) or if agreed between the parties and paid for by the Customer, multiple Devices, with the Garashield Software pre-installed on the Device(s). The risk of the Device(s) will pass to the Customer on delivery; or
2.2.2 the Customer will download and install the Garashield Software onto their own device from distribution platforms including the Google Play Store, the App Store maintained by Apple Inc. or from such other digital distribution platform that Garashield makes the Garashield Software available for download by the Customer.
2.3 The Customer is permitted to install as many copies of the Garashield Software onto their own devices as may be necessary for its lawful use. The Customer shall take steps to prevent unauthorised copying of the Garashield Software.
2.4 The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Garashield Software in whole or in part.
2.5 The Customer may not use any such information provided by Garashield or obtained by the Customer during any such reduction permitted under clause 2.3 to create any software whose expression is substantially similar to that of the Garashield Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.6 The Customer shall not:
2.6.1 sub-license, assign or novate the benefit or burden of this Licence in whole or in part;
2.6.2 allow the Garashield Software to become the subject of any charge, lien or encumbrance; and
2.6.3 deal in any other manner with any or all of its rights and obligations under this Licence, without the prior written consent of Garashield, such consent not to be unreasonably withheld or delayed.
2.7 Garashield may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Licence, provided it gives written notice to the Customer.
2.8 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
2.9 Notwithstanding clause 5, a party assigning any or all of its rights under this Licence may disclose to a proposed assignee any information in its possession that relates to this Licence or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 2.9 shall be made until notice of the identity of the proposed assignee has been given to the other party.
2.10 The Customer shall:
2.10.1 notify Garashield as soon as it becomes aware of any unauthorised use of the Garashield Software by any person;
2.10.2 pay, for broadening the scope of the licences granted under this Licence to cover the unauthorised use, an amount equal to the fees which Garashield would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 4.5, from such date to the date of payment.
2.11 The Customer shall permit Garashield to inspect and have access to any premises (and to the devices and computer equipment located there) at or on which the Garashield Software is being kept or used, and have access to any records kept in connection with this Licence, for the purposes of ensuring that the Customer is complying with the terms of this Licence, provided that Garashield provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
3. MAINTENANCE RELEASES
Garashield will provide the Customer with all Maintenance Releases generally made available to its customers. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
4.1 The Customer shall pay to Garashield licence fees of £1.205 (or such other amount as Garashield shall from time to time notify the Customer) per Order (“a Credit”) in respect of each use of the Garashield Software (“the Fees”)
4.2 The Customer shall purchase Credits via a credit system which will be provided to the Customer by Garashield. The Customer can use the credit system via the console section of the Garashield system. The Customer agrees and acknowledges that each time it places an Order on Garashield Software, it uses one Credit which shall be deducted from the total number Credits which have been paid for by the Customer.
4.3 The Fees shall be paid by the Customer to Garashield in advance in respect of each Order on the Garashield Software in accordance with this clause 4.
4.4 All sums payable under this Licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
4.5 If the Customer fails to make any payment due to Garashield under this Licence by the due date for payment, then, without limiting Garashield’s remedies under clause 10.1, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5. CONFIDENTIALITY AND PUBLICITY
5.1 Each party shall, during the term of this Licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
5.2 The Customer shall make, or permit any person to make, any public announcement concerning this Licence without the prior written consent of Garashield (such consent not
to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
6.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Licence (or any products, including Garashield Software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
6.2 Each party undertakes:
6.2.1 contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
6.2.2 if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
7. GARASHIELD’S WARRANTIES
7.1 Garashield warrants that the Garashield Software will conform in all material respects to the Specification for a period of 90 days from the date of this Licence (the “Warranty Period”). If, within the Warranty Period, the Customer notifies Garashield in writing of any defect or fault in the Garashield Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Garashield Software or used it outside the terms of this Licence for a purpose or in a context other than the purpose or context for which it was designed, Garashield shall, at Garashield’s option, do one of the following:
7.1.1 repair the Garashield Software;
7.1.2 replace the Garashield Software; or
7.1.3 terminate this Licence immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer as at the date of termination (less the Fees in respect of
the number of Credits used by the Customer at the date of termination) on return of the Garashield Software and all copies thereof (and the Device(s), if applicable),
provided the Customer provides all the information that may be necessary to assist Garashield in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Garashield to re-create the defect or fault.
7.2 Garashield does not warrant that the use of the Garashield Software will be uninterrupted or error-free.
7.3 The Customer accepts responsibility for the selection of the Garashield Software to achieve its intended results and acknowledges that the Garashield Software has not been developed to meet the individual requirements of the Customer.
7.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
7.5 Garashield does not warrant that the Technical Data or the DVLA Data is correct or accurate.
8. LIMITS OF LIABILITY
8.1 Except as expressly stated in clause 8.2:
8.1.1 Garashield shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
188.8.131.52 special damage even if Garashield was aware of the circumstances in which such special damage could arise;
184.108.40.206 loss of profits;
220.127.116.11 loss of anticipated savings;
18.104.22.168 loss of business opportunity;
22.214.171.124 loss of goodwill;
126.96.36.199 loss or corruption of data;
188.8.131.52 loss arising due to any defect or inaccuracy in the Technical Data and / or the DVLA Data,
provided that this clause 8.1.1 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 8.1.2 or any other claims for direct financial loss that are not excluded by any of clause 184.108.40.206 to 220.127.116.11 inclusive of this clause 8.1.1;
8.1.2 the total liability of Garashield, whether in contract, tort (including negligence) or otherwise and whether in connection with this Licence or any collateral contract, shall in no circumstances exceed a sum equal to the total Fees paid by the Customer to Garashield; and
8.1.3 the Customer agrees that, in entering into this Licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Licence or (if it did rely on any representations, whether written or oral, not expressly set out in this Licence) that it shall have no remedy in respect of such representations and (in either case) Garashield shall have no liability in any circumstances otherwise than in accordance with the express terms of this Licence.
8.2 The exclusions in clause 7.4 and clause 8.1 shall apply to the fullest extent permissible at law, but Garashield does not exclude liability for:
8.2.1 death or personal injury caused by the negligence of Garashield, its officers, employees, contractors or agents;
8.2.2 fraud or fraudulent misrepresentation;
8.2.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
8.2.4 any other liability which may not be excluded by law.
8.3 All references to “Garashield” in this clause 8 shall, for the purposes of this clause and clause 18 only, be treated as including all employees, subcontractors and suppliers of Garashield and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 18.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer acknowledges that:
9.1.1 all Intellectual Property Rights in the Garashield Software and any Maintenance Releases belong and shall belong to Garashield and the Customer shall have no rights in or to the Garashield Software other than the right to use it in accordance with the terms of this Licence; and
9.1.2 all Intellectual Property Rights in any data generated by the Garashield Software belongs and shall belong to Garashield and the Customer shall have no right in or to such data other than the right to use it in accordance with the terms of this Licence.
9.2 Garashield undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Garashield Software (or any part thereof) in accordance with the terms of this Licence infringes the UK Intellectual Property Rights of a third party (“Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 9.2 shall not apply where the Claim in question is attributable to possession or use of the Garashield Software (or any part thereof) by the Customer other than in accordance with the terms of this Licence.
9.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, Garashield’s obligations under clause 9.2 are conditional on the Customer:
9.3.1 as soon as reasonably practicable, giving written notice of the Claim to Garashield, specifying the nature of the Claim in reasonable detail;
9.3.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Garashield (such consent not to be unreasonably conditioned, withheld or delayed);
9.3.3 giving Garashield and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Garashield and its professional advisers to examine them and to take copies (at Garashield’s expense) for the purpose of assessing the Claim; and
9.3.4 subject to Garashield providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Garashield may reasonably request to avoid, dispute, compromise or defend the Claim.
9.4 If any Claim is made, or in Garashield’s reasonable opinion is likely to be made, against the Customer, Garashield may at its sole option and expense:
9.4.1 procure for the Customer the right to continue to use the Garashield Software (or any part thereof) in accordance with the terms of this Licence;
9.4.2 modify the Garashield Software so that it ceases to be infringing;
9.4.3 replace the Garashield Software with non-infringing Garashield Software; or
9.4.4 terminate this Licence immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer as at the date of termination (less the Fees in respect of the number of Credits used by the Customer at the date of termination) on return of the Garashield Software and all copies thereof (and the Device(s), if applicable),
provided that if Garashield modifies or replaces the Garashield Software, the modified or replacement Garashield Software must comply with the warranties contained in clause 7.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Licence been references to the date on which such modification or replacement was made.
9.5 This clause 9 constitutes the Customer’s exclusive remedy and Garashield’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 8.1.
10. TECHNICAL AND DVLA DATA
10.1 The Customer acknowledges that Garashield uses Technical Data and DVLA Data in the Garashield Software in order to assist with the correct identification of vehicles. The Customer acknowledges that the Technical Data and DVLA Data is provided to Garashield by ADG Ltd, is used on an “as is” basis and that no warranty is given by Garashield as to its accuracy. The Customer shall use the Technical Data and DVLA Data in accordance with this Licence.
10.2 The Customer acknowledges and agrees as follows in relation to its use of the Technical Data and DVLA Data:
10.2.1 it shall not offer for sale or sell the Technical Data without the prior written consent of ADG Ltd. In such circumstances, the Customer agrees that it shall notify Garashield in writing of its request for consent from ADG Ltd (who shall request ADG Ltd’s consent on behalf of the Customer). Garashield shall notify the Customer of ADG Ltd’s response to its request for consent; and
10.2.2 it shall not disclose, reveal or make available a vehicle’s full or partial vehicle identification number (“VIN”) (being more than the last 2 digits) to its customers and/or by businesses that are not permitted to receive the full or partial VIN (as set in the business classifications defined by the DVLA guidelines).
10.3 The Customer agrees and acknowledges that DVLA Data Caching is only permitted in the following circumstances:
10.3.1 for a limited period of 24 hours, to allow multiple hits against a single record as part of a customer’s continuous enquiry; and
10.3.2 for a limited period, where it is necessary to retain the results of a data record for auditing or contractual issues. In such circumstances, the DVLA Data must be held in archive records and must only be retained by the Customer if necessary for this purpose.
10.4 The Customer agrees that the storage of DVLA Data for future use or in order to create an alternative database is not permitted by the Customer under any circumstances. The Customer acknowledges that the DVLA is permitted to exercise regular checks to ensure compliance with this clause 10.4.
10.5 The Customer agrees and acknowledges that it is permitted to display the following DVLA Data to its customers free of charge: make, model, colour, date of first registration, body, fuel type and CO2. The Customer is not permitted to provide to its customers any other DVLA Data free of charge in any environment or medium which shall include invoices and quotations.
10.6 The Customer shall not display Keeper Change and Cherish Transfer events including timeline event descriptions in any circumstances.
10.7 The Customer shall not at any time refer to the data used within the Garashield Software as being supplied by the DVLA.
10.8 The Customer shall not use DVLA’s logo without the express permission of DVLA.
10.9 Garashield shall have the right to make additional charges to the Customer (in addition to the Fees) and/or Garashield shall be indemnified by the Customer in respect of the following:
10.9.1 Customer misuse of the Technical Data and/or DVLA Data;
10.9.2 Customer failure to implement solutions which were previously advised by Garashield to the Customer;
10.9.3 changes to the Customer’s environment which affect its operation and/or interaction with the Technical Data and/or the DVLA Data; and/or
10.9.4 dealing with problems for the Customer which are not caused by a defect in the Technical Data and/or DVLA Data.
10.10 The Customer acknowledges that it shall not have or acquire any Intellectual Property Rights in the Technical Data and/or DVLA Data other than the right to use it in accordance with the terms of this Licence. The Customer acknowledges that all and any Intellectual Property Rights which exist in relation to in the Technical Data and/or DVLA Data shall belong to ADG Ltd except where such rights belong to any other third party licensor.
11. DURATION AND TERMINATION
11.1 Without affecting any other right or remedy available to it, either party may terminate this Licence with immediate effect by giving written notice to the other party if:
11.1.1 the other party fails to pay any amount due under this Licence on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
11.1.2 the other party commits a material breach of any other term of this Licence which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
11.1.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
11.1.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
11.1.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
11.1.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
11.1.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
11.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.3 to clause 11.1.9 (inclusive);
11.1.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
11.2 Any provision of this Licence that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Licence shall remain in full force and effect.
11.3 Termination or expiry of this Licence shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Licence which existed at or before the date of termination or expiry.
11.4 On termination for any reason:
11.4.1 all rights granted to the Customer under this Licence shall cease;
11.4.2 the Customer shall cease all activities authorised by this Licence;
11.4.3 the Customer shall immediately pay to Garashield any sums due to Garashield under this Licence;
11.4.4 the Customer shall immediately return to Garashield the Device(s) provided by Garashield under this Licence, if applicable; and
11.4.5 the Customer shall immediately destroy or return to Garashield (at Garashield’s option) all copies of the Garashield Software then in its possession, custody or control and, in the case of destruction, certify to Garashield that it has done so.
11.5 Any provision of this Licence which expressly or by implication is intended to come into or continue in force on or after termination of this Licence including clause 1, clause 5, clause 6, clause 7 (except clause 7.1), clause 8, clause 11.
No failure or delay by a party to exercise any right or remedy provided under this Licence or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Licence, the rights and remedies provided under this Licence are in addition to, and not exclusive of, any rights or remedies provided by law.
14. ENTIRE AGREEMENT
14.1 This Licence, the schedules and the documents annexed as appendices to this Licence or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
14.2 Each party acknowledges that, in entering into this Licence, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Licence or not) (“Representation”) other than as expressly set out in this Licence.
14.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Licence.
14.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this Licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.1 If any provision or part-provision of this Licence 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 this Licence.
16.2 If any provision or part-provision of this Licence is deemed deleted under clause 16.1 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.
This Licence may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Licence.
18. THIRD-PARTY RIGHTS
A person who is not a party to this Licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
19. NO PARTNERSHIP OR AGENCY
19.1 Nothing in this Licence is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20. FORCE MAJEURE
Neither party shall be in breach of this Licence nor liable for delay in performing, or failure to perform, any of its obligations under this Licence if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this Licence by giving 3 days’ written notice to the affected party.
21.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
21.2 Any notice shall be deemed to have been received:
21.3 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
21.3.1 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.
21.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.
22. GOVERNING LAW AND JURISDICTION
22.1 This Licence and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Licence or its subject matter or formation (including non-contractual disputes or claims).
ANNEX 1 – SPECIFICATION
The Garashield software helps to ensure that vehicle service & repair companies comply with a variety of procedures when carrying out vehicle service, maintenance and repair work, and provides visibility of this compliance to vehicle owners and other interested parties.
The Garashield Software connects, automates and validates processes that are often disconnected, manual and/or go unchecked. It helps garages to deliver SMR work to a known standard by adding checks, evidencing, data validation, authorisation processes and reminders into a garage’s normal workflow, and replacing many traditional paper-based procedures.
Garashield Software also collects data about garage operations, provides direct access to a range of industry stakeholders and provides real-time auditing, recording and reporting of data and media, which is accessible to garages, vehicle owners and other interested parties. It does this via a cloud-based web application and tablet-based software application.