eVA SERVICES TERMS AND CONDITIONS
1. DEFINITIONS & INTERPRETATION
1.1.
Capitalised terms
shall have the meaning first ascribed to them, in particular:
"Acceptable
Use Policy" |
means any
policy determined by Manheim from time to time concerning the use of the Manheim Licensed Software; |
"Appraisal" |
means the
process by which information is provided in the WebApp, or as the case may be
the Online Platform, through a series of questions and fields provided for
completion in order to generate a Valuation; |
"Charges" |
means the fees
and charges set out in the Schedule as amended from time to time in
accordance with the provisions of this Agreement; |
“Commencement
Date” |
has the
meaning given to it in the Schedule; |
“Company” |
has the
meaning given to it in the Schedule; |
"Company
Materials" |
any material
provided by or on behalf of the Company to Manheim in connection with the
Services, including Consumer details, and other information relating to the
Company’s business; |
"Confidential
Information" |
means all
information which, by its nature is confidential to a party to this
agreement, including but not limited to: all business and trade secrets,
methods of doing business, supplier lists, customer lists and other
confidential information and material disclosed by or obtained from the other
in connection with this Agreement including in Manheim’s case, those of any
of its Group; |
"Consumer" |
means any
person or entity (excluding Manheim, the Company or a Retailer) that has
provided information about a Vehicle for the purposes of a Valuation; |
"Contract
Year" |
means each
period of 12 months commencing on the Commencement Date and every anniversary
of the Commencement Date; |
"Data Protection Legislation" |
means all
applicable data protection and privacy legislation in force from time to time
in the UK including the EU GDPR; the UK GDPR; the Data Protection Act 2018;
the Privacy and Electronic Communications Directive 2002/58/EC (as updated by
Directive 2009/136/EC) and the Privacy and Electronic Communications
Regulations 2003 (SI 2003/2426)
as amended. Controller (or Data Controller), Processor (or Data
Processor), Data Subject, Personal Data, Personal Data Breach, Processing
and Appropriate Technical Measures: shall each be as defined in the Data
Protection Legislation; |
"eVA
Premium Services " |
has the
meaning given to it in the Services Descriptions; |
" eVA
Pro Services " |
has the meaning
given to it in the Services Descriptions; |
"EU GDPR" |
means General
Data Protection Regulation ((EU)
2016/679); |
"Group" |
means any
party together with any Parent Undertaking of that party from time to time,
any Subsidiary Undertaking of that party from time to time and any Subsidiary
Undertakings of any Parent Undertaking of that party from time to time. The
expressions Parent Undertaking and Subsidiary Undertaking shall have the
meanings attributed to them in section 1162 of the Companies Act 2006 (and
shall include any overseas companies) and for Manheim includes any entity
notified to the Company as part of its Group from time to time; |
“Initial Term” |
has the
meaning given to it in the Schedule; |
"Intellectual Property Rights" |
means any
patent, copyright, database right, moral right, design right, registered
design, trade mark, service mark, domain name, know-how, utility model,
unregistered design or, where relevant, any application for any such right,
or other industrial or intellectual property right subsisting anywhere in the world; |
“Linked Agreement” |
means an
agreement between Manheim and another party, where that other party has
agreed to pay for the Company to receive some of the Services; |
“Losses” |
means all
losses (whether direct or consequential), damages, third party claims,
liabilities (including liability to taxation), claims, costs and expenses
including fines, penalties, legal and other professional fees and expenses; |
"Manheim Background IPR" |
all
Intellectual Property Rights vesting in Manheim (or its licensors) at the
time of the commencement of this agreement, or created independently of this
agreement during the Term, including in the Manheim Licensed Software; |
"Manheim Licensed Software" |
means the
proprietary software of Manheim, including the WebApp (and where appropriate,
its licensors), Algorithm and Output Data (as defined in the Services
Descriptions), including any updates, releases, enhancements and /or
modifications (whether or not at the request of the Company); |
“Manual Valuation” |
means a
valuation of a Vehicle that cannot be generated solely through the WebApp and
instead requires manual intervention (This is usually because the Vehicle is
a specialist Vehicle and the WebApp has insufficient data to produce a
valuation); |
"Online Platform" |
means the
website used by the Company to integrate the WebApp, more particularly
described in the Services Descriptions (Appendix 2); |
"Retailer" |
means a
vehicle retailer who is authorised to receive and use the WebApp under the
terms of this Agreement; |
"Roof Top" |
means each
physical location of a Retailer |
"Schedule" |
means the
document that is titled EVA Services Agreement Schedule and that states the
Services to be provided and the applicable Charges; |
"Service Levels" |
means any applicable
standards of performance which are to be met by Manheim when performing the
contracted Services (the Service Levels are explained in the Services
Descriptions); |
"Service(s)" |
means the
service(s) to be provided by Manheim as set out in the Schedule; |
"Services Descriptions" |
means the
Appendix 2 document that forms part of this Agreement and describes the
Services; |
"Term" |
means the term
of this Agreement as more particularly described in clause 2.2; |
"Transactions" |
means any use
of the WebApp by the Company or a Retailer to obtain a Valuation or verify a
Valuation that has been provided to a Consumer for the Consumer’s Vehicle and
either the Company, a Retailer or Manheim has purchased that Vehicle; |
"Transaction Data" |
means the data
entered by the Company, Consumer or the Retailer into the WebApp, but which
excludes Personal Data; |
“United
Kingdom Mainland” |
means the
mainland of England, Wales and Scotland (For the avoidance of doubt, United
Kingdom Mainland excludes: Jersey, Guernsey, Northern Ireland, Isle of White,
Isle of Mann, Orkney & Shetland Islands, Mull, Arran, Islay and Jura
Islands); |
“UK
GDPR” |
means the
General Data Protection Regulation as enacted into UK law by the European
Union (Withdrawal) Act 2018 as amended by the Data Protection, Privacy and
Electronic Communications (Amendments Etc) (EU Exit) Regulations 2019; |
"Valuation" |
a guide
purchase price of the Vehicle generated on the WebApp following the
description entered onto it by the Consumer, Retailer or Manheim as the case
may be; |
"Vehicle" |
the Consumer’s
car that has been submitted for the Valuation; |
"WebApp" |
means the
Manheim Appraisals and Valuations Tool; |
2.1.
The Company engages
Manheim and Manheim agrees to provide the Services (in the United Kingdom
Mainland) to the Company, commencing on the Commencement Date and continuing
for the term of this Agreement, subject to the terms and conditions of this
Agreement and payment of the Charges.
2.2. This Agreement shall come into force or came into
force on the Commencement Date and shall continue until: (i) terminated under
any of the early termination provisions in clause 10 or 11.2 or (ii) terminated by either party on 6 months’
written notice provided that the effective date of termination shall not be
prior to the end of the Initial Term.
3. SERVICES
3.1.
Subject to the terms
of this Agreement, Manheim warrants that:
3.1.1.each applicable Service shall operate materially in accordance with the
Services Descriptions when used in accordance with this Agreement under normal
use and normal circumstances during the Term; and
3.1.2.it will provide each applicable Service with reasonable care and skill.
3.2.
Manheim shall use reasonable endeavours to identify all consents (including for
the avoidance of doubt all approvals necessary to produce artwork,
illustration, photography, copy, drawings, literary and other such work) necessary for the fulfilment of its
obligations under this Agreement and shall use its reasonable endeavours to
obtain any such consent.
3.3.
If Manheim’s
performance of its obligations under this agreement is prevented or delayed by
any act or omission of the Company, the Retailers, its agents, subcontractors,
consultants or employees, then, without prejudice to any other right or remedy
it may have, Manheim shall be allowed an extension of time to perform its
obligations equal to the delay.
3.4.
The Company
acknowledges that clause 3.1 does not apply
to any free or trial services provided by Manheim.
3.5.
The Services may be
subject to delays, interruptions, errors, or other problems resulting from use
of the internet or public electronic communications networks used by the
parties or third parties. The Company acknowledges that such risks are inherent
in cloud services and that Manheim shall have no liability for any such delays,
interruptions, errors, or other problems.
3.6. The warranties in clause 3.1 are subject to
the limitations set out in clause 9 and shall not
apply to the extent that any error in the Services arises as a result of:
3.6.1.incorrect operation or use of the Services by the Company,
the Retailers, its agents, subcontractors, consultants, or employees (including
any failure to follow the Acceptable Use Policy or failure to meet minimum
specifications);
3.6.2.use of any of the Services other than for the
purposes for which it is intended;
3.6.3.use of any Services with other software or services
or on equipment with which it is incompatible (unless Manheim recommended or
required the use of that other software or service or equipment in the Services
Descriptions);
3.6.4.any act by any third party (including hacking or the
introduction of any virus or malicious code);
3.6.5.any modification of Services (other than that
undertaken by Manheim or at its direction); or
3.6.6.any breach of this Agreement by the Company or a Retailer.
3.7.
Manheim may at its
absolute discretion make, and notify the Company of, updated versions Manheim
Licensed Software from time to time by notifying the Company of such update by
e-mail (together with a copy of the update or a link to a copy of the update)
or by any other reasonable means which Manheim elects.
4.
COMPANY
OBLIGATIONS
4.1. The Company shall: (i) co-operate with Manheim in
all matters relating to the Services; (ii) provide to Manheim all documents,
information, items and materials in any form (whether owned by the Company or
third party) reasonably required by Manheim in connection with the Services and
ensure that they are accurate and complete and (iii) comply with the Acceptable
Use Policy.
4.2. The Company shall use reasonable endeavours to
identify all consents (including for the avoidance of doubt all approvals
necessary to produce artwork, illustration, photography, copy, drawings,
literary and other such work) necessary for the fulfilment of its obligations
under this Agreement and shall use its reasonable endeavours to obtain any such
consent.
4.3. The Company acknowledges that if it is a Retailer or
Verifying Retailer as defined in this Appendix 1 or in the Services Descriptions
(Appendix 2), it shall be subject to the obligations that this Agreement
imposes on a Retailer and/or Verifying Retailer.
4.4. Subject to clause 4.5, the Company
shall be responsible for any third party platform integrations which are
requested by the Company and accepted by Manheim to supplement the provision of
Services. For the avoidance of doubt, any support by Manheim for third party
integrations will be completed on an “as is” and reasonable endeavours basis,
and Manheim will not be liable for any unsuccessful or incomplete
integrations.
5.
CHARGES
& PAYMENT
5.1. In consideration of the
provision of the Services by Manheim, the Company shall pay the Charges.
5.2. Manheim shall invoice the Company for the Charges on
a monthly basis in arrears. The Company shall pay invoices within 30 days of
receipt to a bank account nominated in writing by Manheim from time to time.
5.3. Manheim may increase the
Charges on an annual basis. Manheim shall provide a minimum of 30 days’ notice
before such changes take effect.
5.4.
Without prejudice to
any other right or remedy Manheim may have, if the Company fails to pay the
Charges or any other sum due to Manheim under this agreement on the due date:
(i) the Company shall pay interest on
the overdue sum from the due date until payment of the overdue sum. Interest
under this Clause 5.4 shall accrue each day at 4% a year above the
Bank of England’s base rate from time to time; (ii) Manheim may suspend all or
part of the Services until payment has been made in full.
5.5. The Charges shall be paid in full without any
set-off, counterclaim, deduction or withholding (other than any deduction or
withholding of tax as required by law).
5.6. All Charges payable hereunder are exclusive of VAT
or any other applicable tax or duty payable upon such sums, which shall be
added if appropriate at the rate prevailing at the relevant tax point. Manheim
shall issue VAT invoices in respect of the sums payable by the Company prior to
the relevant payment date.
6.
INTELLECTUAL
PROPERTY
6.1. All Intellectual Property Rights in Manheim Licensed
Software, Manheim Background IPR whether existing prior to or following the
Commencement Date is the exclusive property of Manheim (or where applicable,
its licensors) and shall at all times vest in and be owned by Manheim (or its
licensors). Nothing in this Agreement shall have the effect of transferring or
assigning in any way Manheim Intellectual Property Rights.
6.2. Manheim grants to the Company and its Retailers a
limited, non-exclusive, non-transferrable and royalty-free licence during the
Term to use Manheim Licensed Software solely to the extent required for the
purpose of receiving the Services.
6.3. The Company and its Retailers shall have the right
to use the WebApp in accordance with the terms of this Agreement for the
purpose of making it available on the Online Platform and for the purpose of
carrying out and generating Valuations.
6.4. The Company grants to Manheim, a worldwide,
non-exclusive, perpetual, irrevocable and royalty-free licence to retain and
use the Transaction Data in connection with its business or any other legal or
regulatory purpose. Manheim shall have the right to share the Transaction Data
within its Group and with selected third parties for the purposes set out above
provided that the Transaction Data is anonymised and does not link to the
Company in any way.
6.5.
Subject to any other
agreement and any applicable branding guidelines provided to Manheim by the
Company, the Company grants to Manheim, a non-exclusive, sub-licensable,
revocable, and royalty-free licence to use the Company’s name, branding, logos,
registered trademarks and unregistered trademarks (“Company
Branding”), for display on the relevant Manheim website and
any promotional, marketing, similar material, or announcement for the duration
of the Services. Manheim agrees that it shall cease
to use the Company Branding if requested to do so by the Company (or its
licensors).
6.6. The Company hereby grants to Manheim a fully
paid-up, non-exclusive, royalty-free, non-transferable licence for the Term to
use, copy and modify the Company Materials for the purpose of providing the
Services.
6.7. The Company (or its licensors) shall retain
ownership of all Intellectual Property Rights in the Company Materials and the
Company Branding.
6.8. Manheim warrants that the Company’s use of the
Manheim Licensed Software and Manheim Background IPR under the terms of this
Agreement, shall not infringe the Intellectual Property Rights of any third
party. The Company warrants that the use by Manheim
of the Company Materials, Transaction Data, and the Company Branding, in
accordance with the terms of this Agreement shall not infringe the Intellectual
Property Rights of any third party.
6.9. The Company shall procure that each of its Retailers,
at the request of Manheim, enter into an agreement with Manheim that is
materially the same as the terms of this Agreement.
7.1. The parties acknowledge that when processing Personal
Data, they will generally process the personal data as separate Data
Controllers however there are times when they may act as a Data Processor of
the other party, as follows:
7.1.1. If the Company is acting as a
Verifying Retailer processing Provenance Material as defined and described in
Appendix 2, the Company shall process such data as a Data Processor of Manheim
and the parties shall comply with the Data Processing Terms in Appendix 4;
7.1.2. If Manheim transfers personal data to the Company that a Consumer has
entered into the WebApp during a Valuation, Manheim shall be a Data Processor
for the Company for the processing of such personal data and the parties shall
comply with the Data Processing Terms in Appendix 3.
7.2. Each party warrants and represents that, in respect
of such data, it shall comply in all respects with Data Protection Legislation.
8.1. Each
party undertakes that it shall not at any time during the Term, and for a
period of 3 (three) years after termination of this Agreement, disclose to any
person any Confidential Information of the other party or of any member of the
Group to which the other party belongs, except as permitted by this Agreement.
8.2. A
party may disclose the other party’s Confidential Information:
8.2.1.to its
employees, officers, representatives, or advisers who need to know such
information for the purposes of exercising the party’s rights or carrying out
its obligations under or in connection with this Agreement. Each party shall
ensure that its employees, officers, representatives, or advisers to whom it
discloses the other party’s Confidential Information comply with this Clause 8; and
8.2.2.as may
be required by law, a court of competent jurisdiction or any governmental or
regulatory authority.
8.3. A
party shall not use any other party’s Confidential Information for any purpose
other than to exercise its rights and perform its obligations under or in
connection with this Agreement.
8.4. The
obligations of confidentiality imposed under this Clause 8 does not apply to
any Confidential Information that:
8.4.1.is or
was already, or has subsequently become generally available to the public other
than as a result of a disclosure by the receiving party in breach of this
Clause 8.
8.4.2.was
already in the receiving party's possession at the time of disclosure by the
other party other than as a result of a breach of this Agreement; or
8.4.3.is
disclosed by the receiving party as may be required by law, a court of
competent jurisdiction or any governmental or regulatory authority.
9.2. Except
for warranties, conditions or terms expressly stated in this Agreement, each
party excludes all warranties, conditions and other terms that may be impliedly
incorporated by statue or common law into this Agreement to the fullest extent
permitted by law.
9.3.
Subject to Clause 9.1, neither party shall,
save where expressly stated, have any liability to the other for any of the
following losses, damage, injury or expense (in each case whether direct or
indirect): loss of profits; loss of opportunity; loss or depletion of goodwill;
loss of anticipated savings or any special, indirect or consequential damage or
loss of any nature whatsoever arising out of or relating to any breach of this
Agreement, even if any such losses, damage, injury or expense are foreseeable.
9.4. Subject
to Clauses 9.1 and 9.3, Manheim’s
total liability in a Contract Year to the Company arising under or in
connection with this Agreement shall not exceed an amount equal to 100% of the
Charges paid to Manheim by the Company in the twelve months preceding its
breach.
10.1.
A party may immediately terminate this
Agreement without payment of compensation or other damages caused to the other
party solely by such termination by giving notice in writing to the other party
if any one or more of the following events happens:
10.1.1. the
other party commits a material breach of this Agreement which breach is
irremediable or (if such breach is remediable) fails to remedy that breach
within a period of 30 days after being notified in writing to do so;
10.1.2. the
other party proposes a voluntary arrangement within the meaning of Section 1 or
Section 253 of the Insolvency Act 1986, or an interim order is made in relation
to the other party under Section 252 of the Insolvency Act 1986, or any other
steps are taken or negotiations commenced by the other party or any of its
creditors with a view to proposing any kind of composition, compromise or
arrangement involving the other party and any of its creditors;
10.1.3. the
other party has any distress or execution levied on its assets which is not
paid out within seven days of its being levied, or a secured lender of the
other party takes any steps to obtain possession of the property on which it
has security or otherwise to enforce its security;
10.1.4. the
other party is deemed to be unable to pay its debts within the meaning of
Section 123 of the Insolvency Act 1986, or calls a meeting for the purpose of
passing a resolution to wind it up, or such a resolution is passed, or a
resolution is passed by the directors of the other party to seek a winding up
or administration order, or the other party presents, or has presented, a
petition for a winding up order, or presents, or has presented, a petition to
appoint an administrator, or has an administrative receiver, or receiver
appointed over all or any part of its business, undertaking, property or
assets;
10.1.5. the
other party is constituted, established, or domiciled against or to an
insolvent debtor or available to the creditors of such a debtor;
10.1.6.
the other party undergoes a change of Control
and for the purposes of this Clause 10.1.6, "Control"
has the meaning specified in Section 416 of the Income and Corporation Taxes
Act 1988, save as where such change of Control is for the purpose of an intra-group
restructure;
10.1.7. a
Linked Agreement expires or is terminated.
10.2.
The termination of this Agreement or of any of
the Services shall be without prejudice to the rights and remedies of either
party, which may have accrued up to the date of termination.
10.3.
Any expiry or termination of this Agreement
(for whatever reason) shall not affect the coming into force or the continuance
in force of any provision of this Agreement that is expressly or by implication
intended to come into or continue in force on or after such termination.
10.4.
Upon termination of this Agreement for any
reason whatsoever the Company shall immediately cease using and remove all
copies of Manheim Licensed Software. The
Company shall procure that each of its Retailers also immediately cease using and remove all copies of Manheim Licensed
Software.
11. GENERAL
11.1.
Nothing in this Agreement shall create, or be
deemed to create a partnership or joint venture or relationship of employer and
employee or principal and agent between the parties.
11.3.
The Company irrevocably and unconditionally
waives any right it may have to claim damages for, and/or to rescind this
Agreement because of a breach of any warranty not contained in this Agreement,
or any misrepresentation whether or not contained in this Agreement, unless
such misrepresentation was made fraudulently.
11.4.
No purported alteration or variation of this
Agreement shall be effective unless it is in writing, refers specifically to
this Agreement and is duly executed by each of the parties to this Agreement.
11.5.
The waiver by either party of any breach of a
provision of this Agreement shall not prevent the subsequent enforcement of
that provision and shall not be deemed to be a waiver of any subsequent breach
of that or any other provision.
11.6.
If at any time any part of this Agreement is
held to be or becomes void or otherwise unenforceable for any reason under any
applicable law, the same shall be deemed omitted from this Agreement and the
validity and/or enforceability of the remaining provisions of this Agreement
shall not in any way be affected or impaired as a result of that omission.
11.7.
Each of the parties shall, and shall use their
reasonable endeavours to procure that any necessary third parties shall,
execute and deliver to the other party such other instruments and documents and
take such other action as is necessary to fulfil the provisions of this
Agreement in accordance with its terms.
11.8.
This Agreement constitutes the entire agreement
between the parties and supersedes and extinguishes all previous agreements,
promises, assurances, warranties, representations and understandings between
them, whether written or oral, relating to its subject matter.
11.9.
No person who is not a party to this Agreement
(including any employee, officer, agent, representative or subcontractor of
either party) shall have the right (whether under the Contracts (Rights of
Third Parties) Act 1999 or otherwise) to enforce any provision of this
Agreement which expressly or by implication confers a benefit on that person
without the express prior agreement in writing of the parties to this
Agreement.
11.10.
Any notice given to a party under or in
connection with this Agreement 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); or sent by email to the address of the party’s authorised
representative. A notice shall be deemed to have been
received: if delivered by hand, on signature of a delivery receipt or at the
time the notice is left at the proper address; 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; if sent by email, at the time of sending (provided
the email is supported by a valid server delivery receipt), or, if this time
falls outside business hours in the place of receipt, when business hours
resume. In this Clause 11.10, business hours mean
9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the
place of receipt. This Clause does not apply to the service of any proceedings
or other documents in any legal action or, where applicable, any other method
of dispute resolution. It is noted that Manheim does not accept notice by
e-mail or facsimile.
11.11.
The Agreement shall be governed and construed
and have effect in all respects in accordance with English Law. Each party
irrevocably agrees that the courts of England and Wales shall have exclusive
jurisdiction to settle any dispute or claim (including non-contractual disputes
or claims) arising out of or in connection with this Agreement or its subject
matter or formation.