In this Agreement the words and phrases in the right hand column of the table at the head of this Agreement and in the following table will have the meanings ascribed to them in the left hand column of that table.
Defect means a defect identified pursuant to the provisions of clause 9.4.1
OEM means Original Equipment Manufacturer and so will be produced by the same manufacturer used by the maker of the Vehicle and to the same standards as supplied to that maker
Schedule of Condition means a full and complete statement of the state and condition of the bodywork, external and internal condition and all or any items which are left with the Vehicle
Service means the services described in the Schedule to this Agreement
Term means the Initial Term and any Renewal Term
Ticket means any single request for support made by the Client to Cartopia
CTP means Cartopia Ltd, company number 7433111
2.1. During the Initial Term CTP shall provide the Services to the Client.
2.2. CTP will use reasonable endeavours to ensure that the Services are provided to the Client on a constant, uninterrupted basis throughout the Term.
2.3 CTP may, at its sole discretion, alter, improve or otherwise modify the elements of the Service provided that any such change will not significantly alter the basic nature of the Service or result in the removal of any features or any other part of the Services nor affect the Subscription.
2.4 CTP may take any action reasonably necessary to address any problems with the Service without any prior notice to the Client. If such faults or any remedial action in respect of them result in an interruption to the provision of the Service, CTP will use reasonable endeavours to inform the Client by email, by using its last known email address and will resolve such problems as soon as it reasonably can.
2.5. It is expressly agreed that CTP shall bear no responsibility or liability for interruptions to the elements of the Service caused by any third party, whether or not that third party has been engaged by CTP.
This Agreement will renew, at the end of the Term for the Renewal Term unless either party has given notice to terminate this Agreement at least 30 days before the end of the Term.
4.1 The Service will be supplied to the Client for the Subscription
4.2 If the Client requires CTP to provide any services in addition to those described in the Schedule hereto CTP may apply its standard advertised charging rates for any such services current at the time of such request.
4.3 The Subscription does not include any parts, materials or consumables of any nature unless the Service specifically includes them.
5.1 Payment of all fees due under this Agreement are due in advance and without the requirement for any invoice to be issued by CTP.
5.2 All Subscriptions, fees, costs and expenses are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by the Client and will be applied in accordance with UK legislation in force at the tax point date.
5.3 CTP may charge interest for late payment from the due date of any Fee at the rate of 6% per annum above the base rate for the time being of The Bank of England. Such interest shall accrue on a daily basis and be payable on demand after as well before as after any judgment.
5.4 CTP may cease to provide the Service whilst any money is owing to it.
6. CLIENT OBLIGATIONS
6.1 The Client warrants that:
6.1.1 it is the owner of the Vehicle or that it has the right to enter into this Agreement with CTP
6.1.2 the Client Contact has full power and authority to commit the Client to this Agreement and to the purchase of any additional services requested by the Client or on its behalf
6.1.3 the Vehicle is fully and comprehensively insured, to its full value, against loss or damage or any nature
6.1.4 apart from the issues for which the Service is to be provided, the Vehicle is in good working roadworthy order, has a valid MOT Test Certificate (or the equivalent for the Country in which the vehicle is registered), that all appropriate UK Road Fund Licence or Vehicle Taxes have been paid and that there is no reason why the Vehicle cannot be driven on public roads in the United Kingdom
6.2 The Client agrees that it shall be required to use its own skill and care in relying on the advice of CTP given in the course of Support, and agrees that it shall indemnify and hold harmless CTP against any loss or damage caused by its failure to use reasonable skill and care in applying that advice.
6.3 The Client accepts that whilst the Service is being provided the Vehicle will accumulate mileage and fuel will be used and that CTP has no liability of any nature in either respect.
6.4 The Client accepts and agrees that any work additional to that referred to in the definition of the Services will only be undertaken by CTP if the Client has agreed such work and the cost of it in writing with CTP.
6.5 The Client will advise CTP at least 14 days in advance, if and when it has any scheduled appointments with any other service provider for the maintenance of the Vehicle or for any other works to be carried out to the Vehicle.
6.7 The Client acknowledges and accepts that CTP will use skilled sub-contractors to carry out many elements of the Service and that, whilst CTP will use its best endeavours to ensure that the Service is carried out to the highest standard mistakes occasionally occur. For this reason, the Client agrees that where it disputes the quality of any work carried out to the Vehicle pursuant to the Service it will give notice of such dispute, immediately, to CTP and it will allow CTP:
6.7.1 to inspect such disputed work; and
6.7.2 may arrange for it to be corrected by an alternative sub-contractor
at no additional charge to the Client
7. CTP OBLIGATIONS
7.1 CTP warrants:
7.1.1 that it will use reasonable efforts to ensure that Support will be provided in a professional and workmanlike manner, subject to compliance of the Client with its obligations under this Agreement.
7.1.2 that all persons handling the Vehicle are suitably and properly qualified and are capable of carrying out the Service (or that part of it) to the highest possible standard
7.1.3 that any person driving the Vehicle is suitably qualified to do so and holds a full UK driving licence
7.2 CTP undertakes and agrees:
7.2.1 that, at all times when the Vehicle is in the care of CTP, it will be fully and comprehensively insured for the Stated Value
7.2.2 that the Vehicle will be driven only for the purposes of testing it and maintaining it where necessary and ensuring that any repairs which have been undertaken have been satisfactorily carried out.
7.2.3 that all parts used in any repairs will be undertaken using OEM parts where at all possible and, if not possible, which are at least equal in specification to the parts used by the manufacturer of the Vehicle.
7.2.4 that all work it undertakes to the Vehicle will be in accordance with any specification for those works laid down by the manufacturer save and except where legal or regulatory requirements or good health and safety practices prevent that specification being applied.
7.2.5 at all times when the Vehicle is in its care to ensure that it is safely stored in a location of CTP choosing.
7.3 CTP agrees:
7.4 Except as set out in this clause 8 all other warranties or conditions, whether express or implied (by statute or otherwise) are hereby excluded to the fullest extent permitted by law.
7.5 CTP will release the Vehicle to the Client or the Client Contact from the place where it is being held by CTP, at any time after reasonable notice but only if all monies owing to CTP at that time have been paid in full.
8. THE VEHICLE
8.1 On each occasion that the Vehicle is taken into the care of CTP a Schedule of Condition must be signed by the Client Contact and the CTP Contact (or if the CTP Contact does not collect the vehicle, then the representative of CTP who makes such collection) in duplicate and a copy of the Schedule of Condition will be retained by each party.
8.2 If the Client Contact is not available at the point of collection or is unwilling or unable to sign the Schedule of Condition CTP will not take the Vehicle into its care and may charge an additional fee (at its standard published rates) for the attempted collection.
8.3 The Client warrants that it will also ensure that it (or the Client Contact) will disclose to the CTP Contact and then note all defects to the Vehicle whether mechanical, bodywork or otherwise of which it is aware on the Schedule of Condition.
8.4.1 If, before starting to provide the Service, after collection of the Vehicle, CTP becomes aware of any Defect in the Vehicle which was not noted on the Schedule of Condition, then, and in every such case, CTP will notify the Client within 48 hours of becoming aware of the Defect and the Client Contact will, as soon as is reasonably possible thereafter (but in any event within 2 working days of such notice), arrange to view the Vehicle.
8.4.2 If, having viewed the Vehicle, the parties cannot agree responsibility for correcting the Defect, the parties will refer the disagreement to the procedure outlined in clause 21 hereof
8.4.3 If CTP accepts responsibility for the Defect then it will arrange for the Defect to be corrected, to a standard which accords with the standard of repair of the Vehicle at the time it came into the care of CTP.
8.4.4 If the Client accepts responsibility for the Defect then it will be for the Client to decide what further action, if any, should be taken and to pay all costs and expenses associated with such action.
8.5 CTP may take a lien on the Vehicle at any time when it is in the possession of CTP and there is any money due and owing to CTP for any reason and the following provisions will apply:
8.5.1 CTP will notify the Client that it is exercising such lien;
8.5.2 the Client will pay CTP for the storage of the Vehicle at its published rates current at the time the Vehicle is in its possession from the date of the notice given in clause 8.5.1
8.5.3 if 3 months have elapsed after the notice referred to in clause 8.5.1 and the Vehicle is still subject to the lien, CTP may dispose of it, without further notice to the Client and whilst CTP will use reasonable endeavours to obtain the market value of the Vehicle, the Client accepts and agrees that CTP will have no responsibility to ensure that the market value is obtained;
8.5.4 following a sale pursuant to clause 8.5.3, CTP may apply the proceeds of sale in satisfaction all sums owing to it at that time and will remit any balance to the Client by cheque to its last known address.
9.1 CTP accepts liability for direct physical injury or death caused solely by the negligence of its assigned employees acting within the course of their employment and the scope of their authority under this Agreement, and nothing in this clause 9 shall limit or is intended to limit or exclude its liability for the same.
9.2 CTP‘s liability for direct damage to the Vehicle caused solely by the negligence of its assigned employees acting within the course of their employment and the scope of their authority (and for any other loss or damage in the event that any other limitation herein shall be unenforceable) shall be limited to the value of the Vehicle for any one event or series of connected events.
9.3 In no event shall CTP be liable to the Client for any:
9.3.1 special, indirect or consequential damages or loss; or
9.3.2 loss of profits
arising out of this Agreement or the provision of the Services or Support, howsoever caused.
9.4 All and any alleged damage to the Vehicle must be reported by the Client to CTP within 7 days of the return of the Vehicle to the Client and time will be of the essence of this clause and CTP will not have responsibility for any damage reported after that period.
10.1 Either Party may forthwith terminate this Agreement by giving written notice to the other Party if:
10.1.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 20 days of the due date for payment;
10.1.2 the other Party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 20 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
10.1.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
10.1.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
10.1.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under this Agreement);
10.1.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party; or
10.1.7 the other Party ceases, or threatens to cease, to carry on business.
10.2 The right to terminate this Agreement given by this Clause 10 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
10.3 Upon the termination of the Agreement, the Client shall immediately cease using the Service but may extract and store any data belonging to it for continuity purposes.
10.4 Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
10.4 For the avoidance of doubt, lack of availability of the Service caused directly or indirectly by any of the following events shall not be considered a breach of this Agreement:
10.4.1 a fault or failure of the internet or any public telecommunications network;
10.4.2 scheduled maintenance carried out in accordance with this Agreement; and
10.4.3 an event of the nature of Force Majeure as defined in clause 13.
11. FORCE MAJEURE
11.1 Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Licensor failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
11.2 If such circumstances continue for a continuous period of more than three months, either Party may terminate this Agreement by written notice to the other Party.
12. NO AGENCY OR PARTNERSHIP
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
14.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
14.2 Notices shall be deemed to have been duly given:
14.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
14.2.2 when sent, if transmitted by e-mail and a return receipt is generated; or
14.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
14.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
15. SUCCESSORS AND ASSIGNEES
15.1 This Agreement shall be binding upon, and inure to the benefit of the Parties and their respective successors and permitted assignees, and references to a Party in this Agreement shall include its successors and permitted assignees.
15.2 In this Agreement references to a Party include references to a person:
15.2.1 who for the time being is entitled (by assignment, novation or otherwise) to that Party's rights under this Agreement (or any interest in those rights); or
15.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that Party. For this purpose, references to a Party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
16.1 Subject to the remaining provisions of this clause neither party will assign, transfer, sub-contract or in any other manner make over to any Third Party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent is not to be unreasonably withheld.
16.2 CTP will be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor will, for the purposes of this Agreement , be deemed to be an act or omission of CTP.
17. NATURE OF THE AGREEMENT
17.1 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
17.2 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
17.3 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.
19. TIME OF THE ESSENCE
Except where specifically made so, time shall not be of the essence in this Agreement as regards any time, date or period mentioned in this Agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.
20. THIRD PARTIES
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 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 such Act.
The Client will, for the Term and for a period of 12 months after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by CTP at any time in relation to this Agreement without the express written consent of CTP.
21. DISPUTE RESOLUTION PROCEDURE
21.1 If the Client Contact and CTP Contact are unable to resolve any dispute arising out of this Agreement, the following procedure will apply.
21.2. If negotiations under Clause 21.1 do not resolve the matter within 7 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.
21.3 If the ADR procedure under Clause 21.2 does not resolve the matter within 21 days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
21.4 The seat of the arbitration under Clause 21.3 shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and rules for arbitration as agreed between the parties. In the event that the parties are unable to agree on the arbitrator(s) or the rules for arbitration, either party may, upon giving written notice to the other party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.
21.5 Nothing in this Clause 21 shall prohibit either party or its affiliates from applying to a court for interim injunctive relief.
21.6 The Parties hereby agree that the decision and outcome of the final method of dispute resolution under this Clause 21 shall be final and binding on both parties.
22. DATA PROTECTION / INTELLECTUAL PROPERTY
22.1 The Client grants to CTP the right to use the Client’s personal data (and any personal data received by CTP in the course of providing the Service) for marketing other goods and services provided by CTP and its business partners. The Client acknowledges and agrees that CTP may share the Client’s personal data with its business partners for this purpose and that such business partners may contact the Client direct. The Client may withdraw this permission at any by sending notice in writing to CTP.
22.2 The Client grants to CTP full right and licence to record all work carried out to the Vehicle and to use images of the Vehicle created by CTP for all and any marketing purposes CTP shall in its sole discretion decide but only if the registration number of the Vehicle is obscured on any such image and the identity of the Client is not associated with such marketing.
23. LAW AND JURISDICTION
23.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
23.2 Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts
24.1 The Client may have a legal right to cancel this Agreement in the period of 14 days commencing on the Date.
24.2 If the Client wishes to cancel this Agreement and no Service has been supplied by CTP during the period prescribed by clause 24.1 then it may do so by giving notice to CTP, in writing, stating that it wishes to cancel the Agreement
24.3 On receipt of a valid notice pursuant to clause 24.2, this Agreement will be cancelled and all and any monies paid by the Client to CTP will be refunded to the Client.
24.4 The right to cancel this Agreement will be lost if any Service is performed by CTP at the request of the Client within the period specified in clause 24.1.