TACHOSOFT UK LIMITED
Registered in England under Company Number 07779332
Registered Office: 1743 Davenport House
207 Regent Street
TERMS OF SALE
1. Definitions and interpretation
(1) In these Terms of Sale unless the context otherwise requires:
‘Abuse of Service’ is defined at clause 3(9);
‘Account’ means the online account of the Customer with the Company;
‘Computer File’ means a computer readable file of any nature but not including any medium in which such a file can be stored and / or processed;
‘Consumer’ means an individual acting for purposes which are wholly or mainly outside of that individual’s trade, business, craft or profession;
‘Customer’ means the party seeking to buy Services from the Company;
‘Delivery’ of Computer Files shall have the meaning given in clause 7(2) and ‘Delivered’ shall be construed accordingly;
‘Host Vehicle’ is defined at clause 6(1) below;
‘Intellectual Property’ means all intellectual property rights anywhere in the world (including present and future intellectual property rights) relating to any confidential information, business or trade names or logos, copyright, database rights, patents, trade or service marks, designs, software, generic rights, software programmes and source code and all variations, modifications or enhancements to each of them;
‘Order’ means the offer to purchase Services made by the Customer to the Company by activating the ‘Proceed’ button on the relevant page of the Website or howsoever expressed and the verb ‘to Order’ shall be construed accordingly;
‘Point’ means a unit of credit purchased by the Customer and which the Company will accept as consideration for the purchase of Services from it;
‘Ready for Use’ means that the Computer File is capable of being installed in and operating as intended by the original creator in the Host Vehicle;
‘Services’ are as described in clause 2(3);
‘Trader’ means a person who is not a Consumer and who is acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf;
‘Website’ means the Company’s website located on the domain www.tachosoft.net.
(2) In these Terms of Sale unless the context otherwise requires:
(a) a word importing the singular includes the plural and vice versa;
(b) a word importing a gender includes each other gender;
(c) a reference to any document is a reference to that document as varied, novated or replaced from time to time;
(d) a reference to a person or entity includes a natural person, a partnership, corporation, trust, association, an unincorporated body, authority or other entity;
(e) the phrase ‘in writing’ includes email correspondence but not SMS messaging.
2. Background Information
(1) The Company sells motor vehicle related Services to Traders only. The Company does not sell to Customers who are Consumers.
(2) The Company provides Services to Computer Files which are processed by a sub-contractor of the Company located outside of the EU. By Ordering the Services a Customer is confirming that the Computer File materials may be made available to a body located outside of the EU. Please note that the Company takes great care over its cyber – security and has defensive systems in place with its sub-contractor to ensure the safety of the Computer file and any related information.
(3) Where a Computer File containing information which was processed in the internal computer of a motor vehicle and which has become damaged, corrupted or otherwise needs to be restored, that file may be capable of being restored. The Services provided by the Company are intended to restore or fix such Computer Files and restore them for use in the vehicle.
(4) In order to provide Services it will usually be necessary for the Customer to submit one or more files to the Company (by the means identified on the Website). Those files are then processed using the Company’s software and returned to the Customer by the same method by which they were delivered.
(5) The Company DOES NOT participate in the altering of any vehicle data by which the history of the Host Vehicle or any other motor vehicle may be altered or misrepresented in any way.
3. Basis of agreement
(1) These Terms of Sale regulate each agreement for the sale of Services between a Customer and the Company.
(2) In order to buy Services a Customer must first create an Account with the Company. By following the procedure on the Website for creating an Account, the Customer offers to contract with the Company for the supply of Services subject to these Terms of Sale.
(3) By activating an Account, the Company shall have accepted the Customer’s offer subject to these Terms of Sale. Each purchase of Services thereafter shall be an individual contract for sale subject to these Terms of Sale.
(4) When the Customer submits an Order for Services to the Company, the Order constitutes an offer to purchase the Services stated in the Order.
(5) Following an Order having been made, the Company may:
(a) accept the Order and agree to provide the Services Ordered; or
(b) decline the Order; or
(c) notify the Customer that alternative Services are available to be supplied.
(6) If the Order is declined (clause 3(5)(b) above) no contract for sale shall have been made and the Company shall have no obligations to the Customer and shall have no liability of any kind to the Customer.
(7) The Services can only be applied to Computer Files that are from Host Vehicles as listed on the Website. If the Host Vehicle (make, model number, age) is not shown on the Company’s list then the Services may not be able to be provided. In such a case Customers are advised to utilise the Company’s Support Process.
(8) It is a condition of an agreement with the Customer that a Computer File supplied by the Company (including any copy of such a file) may not be made available to the public at large or to any section of the public at large. Such Files are intended only to be used in the Host Vehicle and for no other purpose.
(9) The Company deals with Customers who are usually possessed of a level of skill and experience in the operation of Computer Files in motor vehicles. The Services provided by the Company are not to be deemed to include any obligation on the Company to provide support and advice concerning the operation of a Computer File and the Company is entitled to regard persistent communications from a Customer requiring such help and advice as being an ‘Abuse of Service’.
(10) No Order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
4. A Customer’s Account
(1) Before being able to Order Services the Customer must create an Account with the Company. The Customer must give the identity of the business entity that is setting up the Account and the identity of the individual(s) authorised to operate the Account. It is a condition of any agreement between the Company and the Customer that the Customer shall only provide the Company with truthful and accurate information during the application for an Account or in any use of an Account.
(2) In order to operate the Account the Customer will need to purchase Points (using the method shown on the Website). The Points purchased are used as consideration for the purchase of Services and are recorded by the Company against the Customer’s Account. Where there are no Points standing to the credit of the Customer in its Account, or the Customer has insufficient Points to make the purchase, the Company shall have no obligation to provide Services.
(3) The price of Services ordered shall be the Company’s quoted price usually expressed by reference to a number of Points required as the consideration, or, where no price has been quoted (or a quoted price is no longer valid), the price listed on the Website as at the date of the agreement.
(4) The price of Services is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Company.
(5) The Company reserves the right to close without notice the Account of a Customer:
(a) who has committed any breach of an agreement with the Company; or
(b) where an operator of the Account has provided to the Company any incorrect, inaccurate or misleading information of any nature; or
(c) who commits an Abuse of Service; or
(d) who the Company believes (on reasonable grounds) has used or intends to use any of the Services supplied by the Company:
(i) to deliberately mislead any person as to any matter of fact; or
(ii) to commit any offence of fraud in the United Kingdom or elsewhere.
(6) If an Account is closed by the Company under the provisions of clause 4(5) the Company shall refund the Points standing to the credit of the Customer in question save for the amount of Points representing a value equivalent to the reasonable administrative costs including those of closing the Account, notifying suppliers to the Company and relevant authorities and (where reasonable or necessary) the costs of obtaining legal advice.
(7) Where the Company has emailed a Customer without reply and that Customer’s Account has remained dormant for a period of 2 years or more, the Company may close that Account without any obligation to the Customer, and, for avoidance of doubt, shall have no obligation to refund or convert the balance of any Points left in that Account on closure. For the purposes of this clause, ‘dormant’ shall mean that no login has been recorded against that Account during a continuous period of 2 years.
(8) Where a Customer has opened an Account and for so long as the Customer has not purchased any Services at all, the Company shall, on clear notification in writing, close the Account and cause a refund of the Points then standing to the credit of the Customer (if any).
5. Terms of payment
(1) Where the Customer and the Company have made an agreement which is not subject to the usual procedure for payment, the Company may invoice the Customer for the price of the Services on or at any time after Delivery of the Services. The terms of this clause 5 apply in all such instances.
(2) Subject to any special terms agreed in writing between the Customer and the Company, the Customer shall pay the price of the Services when submitting an Order. The time of payment of the price shall be of the essence of the agreement. Receipts for payment will be issued only on request.
(3) If the Customer fails to make any payment on the due date then, without limiting any other right or remedy available to the Company, the Company may:
(a) cancel the agreement or suspend any further Deliveries to the Customer; and / or
(b) appropriate any payment made by the Customer to such of the Services as the Company may think fit (notwithstanding any purported appropriation by the Customer); and / or
(c) charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 8 per cent per annum accruing on a daily basis until payment in full is made.
6. Particular Conditions regarding Computer Files
(1) A Computer File within the computer of a motor vehicle may contain information which is written to that file during the operation of the motor vehicle. Depending upon the nature and purpose of the file, it may be capable of containing confidential information and may also be a work which is protected by the law of copyright. For that reason the Company intends only to provide Services in respect of Computer Files which are to be used in the motor vehicle from which the Computer File is derived (“the Host Vehicle”).
(2) Before supplying a Computer File to the Company for Services to be provided, the Customer must keep a backup copy of it.
(3) By causing a Computer File to be sent to the Company under an agreement, the Customer is promising to the Company:
(a) that the Customer has all the necessary rights and authority to copy the Computer File from a motor vehicle and to make it available to the Company by the method used; and
(b) that making the Computer File available to the Company will not infringe the rights of any third party; and
(c) that the file forwarded to the Company under the agreement is copied from the memory of a motor vehicle which was at the time of copying in the lawful custody of the Customer and the copying was not done in breach of any restriction or in breach of the rights of any third party; and
(d) that the owner of the motor vehicle (if not the Customer) did consent (expressly or by implication) to the copying of the file and the passing of the file to the Company; and
(e) that the Computer File will be used solely for the purposes of restoring the Host Vehicle to a proper operating condition; and
(f) that the Customer has taken reasonable steps to ensure that the Computer File is free of infection, viruses and / or other code that has contaminating or destructive properties; and
(g) that the Customer understands and agrees that any Computer File to which Services have been applied shall be made available to the Customer for 30 days only after which time the Computer File will be removed from access.
(4) The Customer shall indemnify the Company and shall keep the Company fully and effectively indemnified on demand from and against all actions, claims, losses, liability, proceedings, damages, costs, expenses, loss of business, loss of profits, business interruption and other pecuniary or consequential loss (including legal costs and expenses) suffered or incurred by the Company arising directly or indirectly out of any breach of the promises made in clause 7(3)(a) to (3)(g).
(5) In the event that a Customer has made an agreement with the Company for Services to be applied to a Computer File, and the Services are not successfully applied to that File, the Customer shall utilise the Company’s Support Process system by following the instructions given on the Website. No refund of points shall be due unless and until the Customer has followed the Support Process.
(6) The Support Process is intended to resolve technical issues arising with regards to a Computer File or Files. If the Company is unable to resolve the issue so that the Services may successfully be applied to a Computer File, the Company shall notify the Client in writing and the agreement shall thereby be cancelled as respects that Computer File.
(7) A refund of points to the Customer’s account will be made if an agreement is cancelled under paragraph (5) above but not otherwise.
(8) A Computer File may be Ready for Use after the Company has applied the Services to it but the Company does not warrant:
(a) that the File will be compatible with any vehicle other than the Host Vehicle; or
(b) that the File will be capable of operation in the Host Vehicle as though the computer in the Host Vehicle had been restored or reset to the condition it would have been in before the Computer File was originally damaged or corrupted; or
(c) that it will operate at all if the Customer has made any sort of modifications to the Computer File either before or after the Services are applied to the File.
(9) Further the Company does not give any warranty and it shall not be a condition of an agreement that the Services it supplies can make every Computer File Ready for Use and the Customer understands and agrees that if the Company finds that if, in the case of a Computer File submitted by the Customer, the Services cannot make the File Ready for Use, then the agreement will be cancelled and a full refund of any Points used by the Customer will be made.
(10) The Customer is responsible for:
(a) implementing sufficient procedures and virus checks (including anti-virus and other security checks) in order that any Computer File used in a motor vehicle is free of infection, viruses and / or other code that has contaminating or destructive properties; and
(b) the integrity and accuracy of any information passed to the Company concerning the Computer File; and
(c) for utilising the Computer File only in the Host Vehicle.
7. Computer Files, delivery and ownership
(1) Where the Services to be provided are Services in relation to a Computer File, Delivery will usually be made by uploading the Computer File in accordance with the instructions set out on the Website or by email to the email address supplied by the Customer.
(2) Delivery of a Computer File which is Ready for Use will have been made once despatched by the Company to the Customer.
(3) Following Delivery, if the Computer File is not of satisfactory quality, the Customer must notify the Company within ten (10) days from the date of Delivery by communicating with the Company through the Contact page of the Website, by email to the address provided, or by calling any phone number published on the Website.
(4) By sending the Computer File to the Company, the Customer will be deemed to have granted the Company a non-exclusive, irrevocable, royalty free, worldwide licence to receive and store the Computer File, to apply the Services to it and to thereafter keep a copy of it in the records of the Company.
(5) The Customer understands that in the course of providing the Services the File will be altered from the state that it was in prior to its being sent to the Company and that any new Intellectual Property created in the process of applying the Services to the Computer file shall be the property of the Company.
(6) Risk of damage to or loss of the Consumer File shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the Computer File, the time when the Company has tendered delivery of it.
(1) On payment in full having been made for any Services provided to the Customer, that Customer is granted an unlimited worldwide non-exclusive license to use new Intellectual Property in a Computer File (being Intellectual Property created by applying Services to the Computer File) in the Host Vehicle.
(2) The Company shall at all times remain the sole owner of all Intellectual Property Rights created by applying the Services in a Computer File.
(3) The Customer may have statutory rights in certain jurisdictions and these are not to be affected by this licence. Otherwise all limitations or exclusions shall apply to the fullest extent permitted by applicable law.
(4) If the Customer transfers possession of the Computer File to another party without the consent of the Company, or causes or permits the Computer File to be copied, made publicly available in any medium, this Licence is automatically terminated.
(5) This licence is effective until terminated. The Company may terminate this licence at any time if the Customer is in breach of any of the terms of its agreement with the Company. If the Company notifies the Customer of such termination in writing, the Customer shall comply with any reasonable instructions of the Company regarding return or destruction of any new Intellectual Property.
(6) In the event that any provision of this licence is void or unenforceable, such part shall be severed from this licence and remainder shall be valid and continue in full force and effect.
9. Certain Warranties and Conditions excluded
(1) Save as expressly stated otherwise in these Terms of Sale, the Company excludes all other express or implied terms, conditions, warranties, representations or endorsements whatsoever with regard to any Services, the Website or any information or other service provided through the Website.
(2) The Company will do its best to ensure that all materials and information published on the Website are accurate, but all content, materials and information on the Website is provided on an ‘as is’ basis and the Customer shall have total responsibility and risk for use of the Website and use of all information contained within it.
10. Information provided to the Company
(1) The Customer:
(a) authorises the Company to use, store or otherwise process any personal information which relates to and identifies the Customer or the Customer’s representative, to the extent reasonably necessary to provide the Services;
(b) has provided Personal Information which is accurate and complete and that all ordering or registration details (where applicable) contain correct name, address and other requested details;
(2) If the Customer requires any review or modification of any part of the Personal Information then contact the Company at [email protected]
(1) Failure or delay by the Company in providing Services in respect of a Computer File shall not entitle the Customer to terminate all agreements with the Company.
(2) EXCEPT FOR DEATH OR PERSONAL INJURY ARISING FROM THE COMPANY’S NEGLIGENCE, THE COMPANY EXCLUDES AND DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED AND WHEREVER CAUSED BY ANY USE OF THE COMPUTER FILE OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT, OR FROM A BREACH OF ANY TORTIOUS DUTY OWED BY THE COMPANY. THE COMPANY EXPRESSLY EXCLUDES LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(3) In circumstances where loss or damage is claimed as arising out of or in connection with the viewing, use or performance of the Website or its contents other than as a direct result of purchasing Services (which shall be subject to the exclusions and limitation of liability set out in these Terms of Sale), the Company shall have no liability for such loss or damage (unless it has been negligent) whether due to inaccuracy, error, omission or any other cause and whether on the part of the Company or our servants, agents or any other person or entity.
(4) If the Company is liable to the Customer for any reason, if the Company is unable to correct or make good any Services provided, then its liability will be limited to restoration of the Points to the Customer’s Account although this does not apply to limit any liability of the Company for death or personal injury resulting from its negligence or for fraudulent misrepresentation.
(5) The Customer is responsible for ensuring that any computer systems it uses with the Computer File meets all relevant technical specifications necessary to conduct business with the Company.
(6) The Company cannot and does not guarantee or warrant that any Computer File or material available for downloading from the Website will be free from infection, viruses and / or other code that has contaminating or destructive properties.
(7) The limitations and exclusions in this clause are only intended to apply to the extent permitted by applicable law.
(1) None of the rights or obligations of the Customer under this agreement may be assigned or transferred. Notwithstanding the foregoing, the Company may at any time assign all or any part of its rights and benefits under this agreement, and any cause of action arising under or in respect of this agreement to any third party who may enforce such rights and benefits as if it had also been named in this agreement as the Company.
(2) This agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all previous agreements between the parties relating to that subject matter.
(3) Any variation or waiver of any of the terms of this agreement shall not be binding unless set out in writing, expressed to amend this agreement and signed by or on behalf of each of the parties.
(4) If any provision of this agreement, or any part of a provision of this agreement, is found to be illegal, invalid or unenforceable the remaining provisions, or the remainder of the provision concerned, shall continue in full force and effect.
(5) A failure or delay in enforcing compliance with any term of this agreement shall not be a waiver of that or any other term of this agreement.
(6) The Customer shall execute such further documents and perform and do such further acts and things as the Company may reasonably request in writing or expressly require in order to carry the provisions of this agreement into full effect.
(7) The parties to this agreement agree and intend that in relation to any action or proceeding arising out of or in connection with this agreement (‘Proceedings’) the parties irrevocably submit to the jurisdiction of the Courts of England and Wales and waive any objection to Proceedings in any such court on the grounds of venue or on the grounds that the Proceedings have been brought in an inconvenient forum.
(8) All notices which are given in connection with this agreement shall be in writing and shall be sent to the Company’s address set out on the Website or to the email addresses provided by the Company.
(9) A person who is not a party to this agreement has no rights 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 that Act.
(10) Each agreement shall be made subject to the laws of England & Wales and subject to the exclusive jurisdiction of the Courts of England & Wales.