Activation Date: the date on which the Customer completes the 'Create a new account' form and is then activated by Euro Car Parts Ltd.
Amazon Web Services: the suite of Cloud computing services which creates an on-demand computing platform where clients of the Business can stream the Videos, use of which is subject to Amazon Web Services' terms and conditions.
App: the free application software known as ‘VIEWMECH’ developed by Euro Car Parts Ltd which incorporates the Licensed Software (including any New Versions).
ECP: means Euro Car Parts Ltd Limited (company number 02680212), trading as ECP.
Apple Store: the online remote-accessed location where the Apps will be made available for downloading using the Customer's Apple ID. For the avoidance of doubt, if the Customer does not have an Apple ID, they will need to create one before they can download the App.
Business: the car garage business operated by the Customer.
Conditions: these terms and conditions as amended by ECP in accordance with condition 13.4
Contract: the contract between ECP and the Customer for the supply of services described in the Subscription Package in accordance with these Conditions.
Customer: means the person, firm or company who purchases a Subscription Package from ECP.
Data Protection Law: means the Data Protection Act 1998 as may be amended from time to time.
Force Majeure Event: an event beyond the reasonable control of the parties including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of ECP or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
Garage Dashboard: the online hub which stores information, including but not limited to Videos, Personal Data and information in connection with the Business and App.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all equipment in the App 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 that subsist or will subsist now or in the future in any part of the world.
Licensed Software: the Standard Software, the Third Party Software and the Open-Source Software.
Licensed Users: anyone who downloads the App from the Apple Store, or is given access to the App by the Customer.
Minimum Term: 12 months from the Activation Date.
Mobile Device: any Apple iOS device including iPhones, iPads, iPods, and other Apple equipment on which the App will operate whether provided by ECP or otherwise.
New Version: a new release of all or any part of the App in which previously identified faults have been remedied or to which any modification, enhancement, revision or update has been made, or to which a further function(s) have been added.
Normal Working Hours: the hours 09:30 to 16:30 GMT, Monday to Friday, except Bank Holidays in England and Wales.
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the App.
Personal Data: data subject to protection under Data Protection Law.
Renewal Term: a time period equal to the Minimum Term, which shall commence on the expiry of the Minimum Term, or any anniversary of the Renewal Term (as the case may be).
Sign Up Fee: the one-off, non-refundable fee payable by the Customer on purchase of a Sign Up Kit.
Sign Up Kit: the iPod 6, iPod charger, protective case, handheld grip, and any replacement or additional equipment purchased by the Customer from ECP.
Standard Software: the software programs proprietary to ECP.
Subscription Charges: the charges specified in the Subscription Package.
Subscription Packages: the subscription VIEWMECH’s website: viewmech.com
Term: the Minimum Term and any Renewal Term.
Initial Payment: 30 days on a one-off basis per Customer which commences as soon as we activate your account upon receipt of you submitting the 'Create a new account' form.
Third Party Licences: all third party licences relating to the Third Party Software and all licences relating to any Open-Source Software.
Third Party Software: the software programs proprietary to third parties which form part of the App.
Videos: the videos created by the Customer using the App.
Virus: any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
a reference to a party includes its personal representatives, successors or permitted assigns; and
a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
a reference to writing or written includes emails.
The Customer will be entitled to download a version of the App from the Apple Store in accordance with the terms and conditions of the Apple Store to use free of charge during the Trial Period. At the end of the Trial Period, access to the App will be terminated unless the Customer purchases a Sign Up Kit and a Subscription Package.
During the Term and subject to these Conditions, the Customer will be provided access to the Licensed Software and the Garage Dashboard.
The Customer must purchase a Sign Up Kit in order to access and purchase a Subscription Package.
ECP will send the Sign-Up Kit as soon as practicable to the address provided by the Customer following receipt of the Customer's order.
Any dates quoted for delivery of the Sign-Up Kit are approximate only, and the time of delivery is not of the essence. ECP shall not be liable for any delay in delivery of the Sign-Up Kit that is caused by a Force Majeure Event or the Customer's failure to provide ECP with adequate delivery instructions or any other instructions that are relevant to the supply of the Sign-Up Kit.
ECP shall have no liability for any failure to deliver the Sign-Up Kit to the extent that such failure is caused by a Force Majeure Event, the Customer's failure to provide ECP with adequate delivery instructions for the Sign-Up Kit or any relevant instruction related to the supply of the Sign-Up Kit.
ECP recommends that the Sign-Up Kit is used by the Customer in connection with the App only. ECP accepts that it cannot prohibit the Customer from installing any software, music or other content on any part of the Sign-Up Kit, other than the Licensed Software which is created or provided by ECP in the course of its normal operation. However, ECP will not accept any liability for any malfunction and/or defect associated with installing such software, music or other content on any part of the Sign-Up Kit.
Title and risk in the Sign-Up Kit shall remain with ECP until delivery of the Sign-Up Kit, at which point title and risk shall transfer to the Customer.
The App enables the Customer to create Videos that can be uploaded to the Garage Dashboard and that are hosted by and stored using Amazon Web Services. The clients of the Business will be able to stream the Videos subject to the Customer providing them with the necessary information (including, but not limited to, correct links and passwords).
The Customer requires a reliable wireless broadband connection in order to use the App. ECP shall not be responsible for issues in relation to inadequate or unreliable wireless broadband capability.
The Customer acknowledges and agrees that the Customer is responsible for uploading, managing, storing and deleting Videos via Amazon Web Services in accordance with Amazon Web Services' terms and conditions during the Term.
The Customer also acknowledges and agrees that ECP shall have no control over Videos and as such shall not be liable for any damage suffered by the Customer as a result of any use of the Video by any third party.
The Customer is solely responsible for the content of the Videos and the Customer hereby indemnifies ECP and shall keep ECP indemnified against any and all costs, losses, expenses and damages howsoever incurred by Euro Car Parts Ltd: relating a breach of condition 4.3 and any claim by a third party in relation to any allegation that any Video uploaded by the Customer infringes any third party rights, or contains defamatory, violent, discriminatory, offensive or illegal material.
The Customer is solely responsible for obtaining the consent of members of ECP and any third party that may appear in, or be identifiable from any Video and the Customer agrees that ECP shall have no liability in respect of any claims resulting from the Customer's failure to obtain the necessary consents.
From time to time, ECP may use the Videos and anonymised statistics about the Customer's use of the App for the purpose of marketing ECP to other prospective subscribers. The Customer agrees that ECP may use such materials for this purpose.
The Sign-Up Fee is payable by the Customer via Account on the date on which the Customer orders the Sign-Up Kit.
The Subscription Charges are payable in arrears on a monthly basis. Payment of the first Subscription Charge will be taken the same day that the Customer signs up to a Subscription Package. All future payments of the Subscription Charges will be taken on that same day each month during the Term.
The Subscription Charges and all other payments including the Sign-Up Fee due from the Customer are inclusive of VAT.
If you are in a partnership arrangement of two or more persons, each partner shall be joint and severally liable for the payment of the Sign-Up Fee and the Subscription Charges.
After expiry of the Minimum Term or the Renewal Term (as the case may be) ECP may increase the Subscription Charges by giving the Customer written notice.
ECP and/or its licensors own all Intellectual Property rights in the App. Except as expressly stated otherwise, these Conditions do not grant the Customer any rights or licences in respect of the App or any related documentation. Title to the App and the ECP brand shall remain vested in ECP or its licensors. Any rights not expressly granted in these Conditions are reserved to ECP
ECP confirms that it has all necessary rights in relation to the App, to grant the rights to the Customer under these Conditions.
The Customer shall use reasonable endeavours to prevent any infringement of the Intellectual Property Rights in the App and shall promptly report to ECP any such infringement that comes to its attention. In particular, the Customer shall:
ensure that each Licensed User, before starting to use the App is made aware that the App is proprietary to ECP (or the appropriate third parties) and that it may only be used in accordance with these Conditions; and
ensure that the terms and conditions of use of the Apple Store and Amazon Web Services do not conflict with any of the terms of ownership detailed in this condition 6.
The Customer hereby indemnifies ECP and shall keep ECP indemnified against any and all costs, losses, expenses and damages howsoever incurred by ECP relating to ECP use of any materials supplied by the Customer that result in a claim, or potential claim against ECP by a third party relating to the alleged or actual infringement of a third party's rights.
In consideration of the Subscription Charges, ECP grants the Customer, subject to these Conditions, a non-exclusive, non-transferable licence to use the Licensed Software for any purpose relating to the Business and to sub-license the Licensed Software to any Licensed User in accordance with condition 6.
If required by the Customer and subject to the type of Subscription Package purchased, ECP may tailor the Garage Dashboard and client-landing page to include the logos and branding of the Customer. To the extent that this service is required, the Customer grants ECP a non-exclusive, non-transferrable, royalty-free licence to use the Customer's logos, branding and any other intellectual property as required.
The Customer shall comply with any Third Party Licences and shall indemnify and hold ECP harmless against any loss or damage incurred as a result of the Customer's breach of such terms. A breach by the Customer of any Third-Party Licence is a breach of these Conditions.
Except as permitted these Conditions, the Customer shall not:
sub-license, rent, lend, assign or transfer in any other way the Licensed Software to any person without the prior written consent of ECP;
give access to the Licensed Software through any network of computers to users who are not employees or agents of the Customer;
allow any person other than a representative of ECP to modify, repair or maintain any part of the App, without ECP prior written consent;
make adaptations or variations of the Licensed Software without the prior consent of ECP and
disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law.
The Customer is responsible for ensuring that they have downloaded any New Version which becomes available via the App Store. ECP shall not be responsible for informing the Customer directly that they are not using the most up-to-date version of the App or that a new version is available.
The Customer acknowledges that older versions of the App may not continue to be supported.
The Customer shall be responsible for checking the accuracy and completeness of the migrated data and shall give sufficient details to ECP of any inaccuracies or omissions for them to check. If such data includes Personal Data, ECP shall return all copies of such Personal Data to the Customer on completion of the data migration process.
During the Term, technical support is available by email during Normal Working Hours to provide assistance to the Customer.
ECP shall use reasonable endeavours to assist the Customer in the use of the App and to provide work arounds or solutions for any problems encountered in a timely manner. The Customer shall promptly notify ECP of all problems.
Within one working day of such notification, ECP shall acknowledge receipt of the notification and shall determine, in consultation with the Customer, the seriousness of the defect;
if a notified defect substantially impairs the Business, ECP shall start work on correcting the defect within twenty four hours of determining the seriousness of the defect, use all reasonable efforts to correct the defect as soon as possible and keep the Customer informed of progress towards correction of the defect;
if a notified defect, while not substantially impairing the Business, causes those operations to become significantly slowed or causes substantial inconvenience, ECP shall commence work on correcting the defect within two working days of receipt of such notification and shall use all reasonable efforts to correct the defect as soon as possible; and
in all other cases, ECP shall start work on correcting the defect as soon as ECP workload allows and shall use reasonable efforts to correct the defect.
The Customer shall not at any time give ECP details to any Licensed User in the event of a fault with the App. Any correspondence in relation to faults shall only be between the Customer and ECP.
ECP may, in the course of rectifying any problems the Customer encounters or to increase functionality, revise or update the Licensed Software. ECP shall update the Licensed Software remotely, and the Customer agrees that they will ensure the Sign-Up Kit is kept fully charged and within access to a wireless broadband network to ensure updates can take place accordingly.
Whilst an update is in progress, the Customer may be temporarily prevented from using the App.
The Customer undertakes that it shall not at any time disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by ECP (including any employees, agents, consultants or subcontractors or any group members) and any other confidential information concerning ECP business or its products which the Customer may obtain, except as permitted by condition 8.2.
The Customer may only disclose ECP’s confidential information:
tto its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. The Customer shall ensure that its employees, officers, representatives or advisers to whom it discloses ECP’s confidential information to also complies with this condition 8; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
The Customer shall not use ECP confidential information for any purpose other than to perform its obligations under the Contract.
All materials, equipment and tools, drawings, specifications and data supplied by ECP to the Customer shall, at all times, be and remain the exclusive property of ECP, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to ECP, and shall not be disposed of or used other than in accordance with ECP' written instructions or authorisation.
In these Conditions the terms "data controller", "data processor", "data subject" and "processing" bear the respective meanings given them in the Data Protection Act 1998; "data" includes Personal Data; and Customer Personal Data means any Personal Data provided by or on behalf of the Customer:
Subject to condition 9.5, ECP shall:
only carry out processing of any Customer Personal Data on the Customer's instructions;
iimplement appropriate technical and organisational measures to protect any Customer Personal Data against unauthorised or unlawful processing and accidental loss or damage; and
only transfer Customer Personal Data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject.
shall comply with the Seventh Data Protection Principle relating to date security; and
provide the Customer with logins and passwords to enable the Customer to access the Garage Dashboard.
ECP shall promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Personal Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.
ECP will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which ECP carries out under the Contract.
The Customer acknowledges and agrees that ECP may use the Personal Data collected from Licensed Users for marketing purposes and the Customer agrees to comply with their obligations under the Data Protection Act 1998 and all subsequent amendments. The Customer agrees that all logins and passwords shall be kept secret and shall defend and hold ECP harmless from and against any losses, costs and damages resulting from the Customer's failure to do so.
Except as expressly provided otherwise, the Contract does not transfer ownership of, or create any licences (implied or otherwise) in, any Intellectual Property Rights in any data.
ECP warrants that, as far as ECP is aware:
the Licensed Software belongs to ECP and/or it has the necessary rights to license all UK Intellectual Property Rights in and to the Licensed Software to the Customer;
use of the Licensed Software does not infringe the UK Intellectual Property Rights of any third party;
(subject to condition 10.8) the Licensed Software will perform in accordance with the details of the Subscription Package during the Minimum Term; and
the Licensed Software complies with all applicable law.
The sole remedies for breach of the warranties in conditions 10.1.1 and 10.1.2 are that ECP may, at its sole discretion:
replace all or part of the Licensed Software with functionally equivalent software;
modify the App as necessary to avoid such claim;
procure for the Customer a licence from the relevant claimant to continue to use the App; or
if conditions 10.2.1 to 10.2.3 are not feasible (in ECP’ reasonable opinion) terminate the Contract on notice in accordance with condition 12.
The sole remedy for breach of the warranty under condition 10.1.3 shall be correction of defects within a reasonable time from notification by the Customer of the defect that constitutes such breach.
The warranties set out in this condition 10 are in lieu of all other express or implied warranties or conditions. ECP does not warrant the Licensed Software will operate in conjunction with any hardware items or software products other than those identified in the Subscription Package as being compatible with the Licensed Software or operate uninterrupted or error-free.
Any unauthorised modifications, improper use or installation of the Apps by, or on behalf of, the Customer, external causes or use other than as permitted under these terms and conditions shall render all ECP' warranties and obligations under these Conditions null and void.
ECP shall not be obliged to rectify any particular defect if attempts to rectify such defect other than by normal recovery or diagnostic procedures have been made by the Customer's personnel or third parties without the permission of ECP.
The Customer:
warrants to ECP that it will at all times comply with all applicable laws with respect to its activities under the Contract and any part of the Licensed Software;
shall not access, store, distribute or transmit or cause, suffer or allow to be accessed, stored, distributed or transmitted any Virus; and
shall indemnify ECP against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by ECP arising out of any non-compliance by the Customer with these Conditions.
ECP shall use all reasonable endeavours to ensure that the Apps will (subject to these Conditions) be available and accessible at all times following the Activation Date. The Customer accepts that there may be occasional delays, interruptions or failures in the App due to the inherent nature of the internet and the need to carry out maintenance, repairs or modifications to the App ("Downtime"). ECP will have no liability to the Customer for any loss or damage resulting as a consequence of any Downtime and specifically excludes the same to the extent permitted by law.
Neither party excludes or limits liability to the other party for:
fraud or fraudulent misrepresentation or any other criminal act
death or personal injury caused by ECP negligence or defects in the App or Sign-Up Kit;
a breach of any terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
any matter for which it would be unlawful for the parties to exclude liability.
Subject to condition 11.1, ECP shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
any loss of profits, use, business, business opportunities, revenue, turnover, reputation or goodwill;
any loss or corruption of data or information;
loss of anticipated savings or wasted expenditure (including management time);
any loss or liability under or in relation to any other contract; or
any indirect or consequential loss.
Subject to condition 11.1, ECP' total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the Contract shall be limited to the Subscription Charges paid by the Customer during the 12 month period immediately before the date on which the claim arises but shall exclude the Sign-Up Fee.
The Minimum Term shall commence on the Activation Date and shall continue, unless terminated earlier in accordance with this condition 12, until the end of the Minimum Term at which point the Contract will automatically renew for the Renewal Term (subject to condition 5.5) unless either party gives not less than 30 days' written notice to terminate, such notice to expire at the end of the Minimum Term. At the end of each Renewal Term (and subject to condition 5.5) the Contract will automatically renew for a further Renewal Term unless either party gives not less than 30 days' written notice to terminate, such notice to expire at the end of a Renewal Term.
Without prejudice to any other rights or remedies, ECP may terminate the Contract with immediate effect by giving written notice to the other party if:
the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
the Customer commits a material breach of any term of the Contract (other than failure to pay any amounts due under the Contract) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
the Customer 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;
the Customer 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 the Customer with one or more other companies or the solvent reconstruction of the Customer;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
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 Customer;
a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
a creditor or encumbrancer of the Customer 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 its assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 12.2.3 to condition 12.2.9 (inclusive); or
the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
If a claim arises under condition 5 or if ECP has reason to believe that any materials supplied by the Customer may infringe any third party rights, ECP may, without prejudice to its other rights and remedies, suspend or terminate the Contract (as it sees fit) with immediate effect by written notice.
On termination of the Contract for any reason, the Customer:
shall return, destroy or permanently erase (as directed in writing by the other party) any documents or other information or data provided to it by ECP containing, reflecting, incorporating or based on Confidential Information belonging to ECP;
shall permanently delete any proprietary software belonging to ECP;
shall immediately pay any outstanding unpaid invoices and interest due to ECP; and
will no longer be able to access Videos or information stored on the Garage Dashboard
Other than as set out in these Conditions, neither party shall have any further obligation to the other after its termination of the Contract. Any Condition which expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
Termination of the Contract, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
No failure or delay to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
The Customer may not assign, transfer, mortgage, charge, subcontract, or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of ECP.
The Contract and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of the Contract.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by ECP.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999.
The Contract shall be governed by and construed in accordance with English law. The courts of England and Wales shall have exclusive jurisdiction.