e-jobsheet
e-jobsheet Managed Mobile Data Service Subscription Terms

 

e-jobsheet Managed Mobile Data Service Subscription Terms 

CI will grant you a licence to use the e-Jobsheet Managed Mobile Data Service and you agree to accept such a licence in each case on and subject to the e-Jobsheet Managed Mobile Data Service Subscription Terms of Use which are set out below (the “Terms”). Once the Service is activated the Charges will be due monthly in advance. Please confirm that you accept such Terms by ticking the box where indicated.  

This Agreement grants you a licence to use the Service on the terms and conditions contained in these Terms as set out below.

1. Definitions and Interpretation
1.1 In this Agreement (except where the context requires otherwise) and in addition to the words defined elsewhere in this Agreement, the following expressions shall have the following meanings:
1.1.1 “Agreement”: these e-jobsheet Managed Mobile Data Service Subscription terms;
1.1.2 “CI”: Mobile IT@pps.com Limited trading as ‘CAM International’ of Unit B, Draycott Business Park, Cam, Dursley, Gloucestershire GL11 5DQ whose email address for notifications is superadmin@e-jobsheet.com;
1.1.3 “Charges”: the monthly charges payable to CI in respect of the Service calculated in accordance with the then applicable schedule of rates as set out at www.e-jobsheet.com;
1.1.4 “Commencement Date”: the date of the Customer’s successful registration and subsequent application to receive the Service on the TiDaeX™ platform via an activation process, and CI’s receipt of instructions from the Customer to take payment of the Charges by PayPal or credit card on the commencement of the Subscription Period and thereafter;
1.1.5 “Customer” or “you”: you being an individual, sole trader, partnership or company that is entering into this Agreement, and that has previously registered as a trading entity on the Platform
1.1.6 “Initial Licences”: the licences you have ordered for users in your initial online registration and application to use the Service;
1.1.7 “Integrated Solution”: where the Platform and the Services are configured to interact with the Customer’s existing software applications;
1.1.8 “IPR”: all intellectual property rights including, without limitation, any patents, trade and services marks, database rights, registered and unregistered designs, copyright (including copyright in computer software), know how and confidential , technical and commercial information howsoever recorded;
1.1.9 “Named User”: a named user who has been set up as a ‘Fitter’ on the Platform and for whom the Customer has subscribed for a licence via an activation process to use the Service;
1.1.10 “Participants”: tyre manufacturers or tyre dealer networks that have entered into agreements with CI pursuant to which they have agreed to upload their commercial tyre referential data onto the Platform or fleet contract holders that wish to upload their commercial tyre referential data onto the Platform;
1.1.11 “Platform”: the hardware and CI’s TiDaeX software platform operated by or for CI to which the Customer will connect for the purpose of receiving the Service,
1.1.12 "Service”: an e-jobsheet Tablet software licence and managed mobile data service relating to commercial tyre service jobs for use on tablet devices, as more particularly described in clause 3.1;
1.1.13 “Standalone Solution”: where the Platform and the Service are offered as a standalone solution with no configuration or interactivity with the Customer’s other software applications;
1.1.14 “Subscription Period”: an initial period of 12 months; and
1.1.15 “Termination Fee”: the payment of the remainder of the Charges that are unpaid but that would have been due to CI pursuant to this Agreement if this Agreement and the licences for the Named Users had run to the expiry of the Subscription Period or any applicable Renewal Period without any early termination;
1.1.16 “Trial Period”: a trial period of 1 calendar month in respect of the Standalone Solution only, commencing in accordance with clause 2.2; and
1.1.17 “Transactional Data”: data supplied or inputted back to the Service by the Customer pursuant to clause 3.1.
1.2 In this Agreement reference to the singular shall be deemed to include the plural and vice versa, any reference to a statute shall be construed as a reference to such statute as enacted under the laws of England and Wales and headings to clauses are included for ease of reference and shall not affect the interpretation of this Agreement.
2. Trial Period and Term
2.1 This Agreement will commence on the Commencement Date.
2.2 In respect of the Standalone Solution:
2.2.1 CI will grant to the Customer for the Trial Period a non-exclusive and non-transferable licence on and subject to the terms of this Agreement to use the Service for a maximum number of up to 2 named users for the sole purpose of evaluating the Service and for no other purpose whatsoever. The Customer may at any time during the Trial Period request that the Subscription Period commence early so that the Customer can obtain full use of the Service provided that CI has received the Customer’s instructions to take payment of the Charges by PayPal or credit card;
2.2.2 This Agreement shall endure for the Trial Period and thereafter, unless the Customer notifies CI via the Platform prior to the expiry of the Trial Period that it wishes to terminate this Agreement, until the expiry of the Subscription Period (which shall commence from the expiry of the Trial Period) and shall be renewed automatically thereafter for successive 12 month periods (each such period being a “Renewal Period”) unless or until terminated by either party on giving the other at least one calendar month’s notice via the Platform to expire at the end of the Subscription Period or any applicable Renewal Period, subject always to this Agreement being terminated earlier in accordance with its terms (e.g. on account of breach); and
2.2.3 The Customer shall only be entitled to one Trial Period, whether such period has been fully utilised or not.
2.3 In respect of the Integrated Solution this Agreement shall endure for the Subscription Period (which shall commence on the Commencement Date) and shall be renewed automatically thereafter for successive 12 month periods (each such period being a “Renewal Period”) unless or until terminated by either party on giving the other at least one calendar month’s notice via the Platform to expire at the end of the Subscription Period or any applicable Renewal Period, subject always to this Agreement being terminated earlier in accordance with its terms (e.g. on account of breach).
2.4 The Customer may reduce the number of licences for Named Users at the expiry of the Subscription Period or any Renewal Period on giving CI at least one calendar month’s notice via the Platform.
3. Provision and Use of the Service
3.1 Subject to having a valid licence to use the Service CI will provide the Customer with a mobile application for download onto a tablet or other suitable device that will enable the Customer’s commercial tyre fitters to receive commercial tyre referential data from Participants and to complete work on a vehicle and feed completed commercial tyre fitting transactional data back to middleware software for dissemination via the Platform.
3.2 The Service relies upon the data being entered by users being correct and the Customer acknowledges that it will be responsible for ensuring that all data that it and its users enter via the Platform or Service is accurate and error free. CI may suspend the Customer’s licence to use the Service and access to such (or any part thereof) during any period it considers appropriate where the Customer is found to have entered erroneous data.
3.3 The Service is subject to the following limitations:
3.3.1 information may be sent to and from the Customer’s tablet hardware or other handheld devices to the Service through GSM, 3G or 4G networks or via such other mobile technology as may become available from time to time and will not be able to provide full functionality at places and times when the networks or mobile technology used by such devices are not available; and
3.3.2 neither the Service nor the Platform will be available during scheduled maintenance outages of which the Customer will receive prior notification nor during unscheduled outages which may occur from time to time.
3.4 The Service is provided via an open trading platform based on technology owned by CI known as “TiDaeX”. The Customer understands that business decisions made by Participants will affect the Customer’s use of the Service, that these are the responsibility of the Participants and that they are not a function of the operation of the Platform or the Service. The Customer accepts that CI shall not be responsible for any business decisions made by Participants or for any effect these may have on the Customer’s use of the Service.
3.5 CI reserves the right from time to time to modify the design, operation and/or performance of the Platform or Service as it considers necessary or appropriate provided that any such modification(s) shall not materially adversely affect or reduce the functionality offered by the Platform or Service. CI further reserves the right to develop additional functionality to be available via the Platform or Service and for access and use of such CI shall be entitled to make additional charges.
4. Licence Agreement
4.1 Without prejudice to the rights reserved and granted to CI by the terms of this Agreement and subject to receipt in cleared funds of the Charges due, with effect from the commencement of the Subscription Period CI hereby grants the Customer a non-exclusive, non-transferable, revocable and non-sublicensable licence to use the Service (including the software therein) for the number of Named Users subscribed for solely as required for the Customer’s core business upon and subject to the terms of this Agreement for the term of this Agreement, subject to termination pursuant to these terms.
4.2 Licences to use the Service are granted on a per named user basis and may not be used concurrently by more than one user. CI will allow the transfer from one Named User to a new Named User from time to time to reflect changes in the Customer’s personnel. The Customer may at any time request additional licences for new users and the Customer agrees to pay for these at the same charge/user/month as for the Initial Licences and which additional licences shall endure for a fixed period so that they are co-terminous with the Initial Licences. The Customer may not terminate any licences to use the Service prior to the expiry of the Subscription Period or any applicable Renewal Period.
4.3 The Customer agrees to use all reasonable efforts to protect the Service (or any part of it) from unauthorised use or reproduction and hereby undertakes to: (i) keep CI fully informed of any such unauthorised use or reproduction; and (ii) co-operate with CI should legal action be required to protect CI's or its suppliers’ intellectual property rights.
4.4 The Customer may not and agrees not to:
4.4.1 use the Service in connection with the transmission, sale, licence or delivery of any infringing, defamatory, offensive or illegal products, services or materials;
4.4.2 use or attempt to use Service to provide a data processing service to any third party by way of trade or otherwise or as part of a network; or
4.4.3 design, develop and/or build an alternative product or service that is similar or competitive to the Service for the term of this Agreement and a period of 6 months following its expiry or other termination; or
4.5 All IPR in the Service and in CI’s TiDaeX software are and shall remain the property of CI and/or the third party suppliers to CI and all copyrights, trade marks and other intellectual property rights remain the exclusive property of CI and/or its suppliers. All rights not expressly granted in the Agreement are reserved by CI.
5. Payment Terms
5.1 The Customer agrees to pay the Charges monthly in advance by PayPal or credit card. Where applicable, VAT and any other applicable taxes due shall be paid additionally at the then prevailing rate. Any firm prices quoted are with errors and omissions excepted.
5.2 Charges are set in £ sterling and the sum payable in any other currency may fluctuate where there are fluctuations in currency exchange rates. CI may increase the monthly Charges annually every January by the corresponding increase in the UK Consumer Prices Index for the 12 month period ending in the previous October.
5.3 Except as expressly stated otherwise in this Agreement all payments payable to CI under this Agreement shall become due immediately upon termination of this Agreement, howsoever arising.
5.4 If payment is not received by CI in accordance with clause 5.1 then CI will send the Customer a formal written reminder of such overdue payment (this may be sent by email).
5.5 If any overdue payment is not received by CI within 14 days of the due date, without prejudice to any other rights it may have, CI may suspend the Customer’s licence to use the Service and access to such (or any part thereof) during any period until such time as all payments due including all interest accrued and any costs incurred have been paid in full.
5.6 The Customer shall make all payments due under this Agreement without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by CI to the Customer.
5.7 Without prejudice to any other rights of CI in the event of the Customer failing to pay any sums due to CI on time or at all notwithstanding delivery of a written reminder to the Customer (including by email), CI shall be entitled to:
5.7.1 charge interest on overdue invoices at the rate determined by the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and compounded quarterly, from the due date until the date of payment, both before and after judgment; and
5.7.2 reclaim from the Customer all costs and expenses (including legal costs) incurred in the collection of overdue amounts from the Customer.
5.8 This clause shall survive termination of this Agreement.
6. Termination
6.1 This Agreement shall terminate forthwith if the Customer shall convene a meeting of its creditors or if a proposal shall be made for a Voluntary Arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other scheme or arrangement with or assignment for benefit of its creditors, or if the Customer shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Customer or if a petition is presented or a meeting is convened for the purpose of considering a resolution or if other steps are taken for the winding up of or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) in respect of the Customer.
6.2 This Agreement may be terminated forthwith by either party if the other party commits any material breach of any term of the Agreement and which (in the case of a breach which is capable of being remedied) shall not have been remedied within 7 days of receipt of a written request (this may be sent by email via the Platform) to remedy the same.
6.3 This Agreement may be terminated forthwith by CI by written notice if at any time the Customer is in breach of:
6.3.1 any obligation to pay to CI any Charges and, notwithstanding delivery of a written reminder to the Customer (including by email), the Customer has failed to pay any such sums due within 28 days of the due date for such payment; or
6.3.2 any provision of clause 4 (Licence Agreement) or 8 (Confidentiality).
6.4 All provisions intended to have continuing effect shall survive the termination of this Agreement including, but not limited to, the relevant provisions of clauses 4 (Licence Agreement), 5 (Payment Terms), 6 (Termination), 7 (Warranty and Liability), 8 (Confidentiality), 9 (General) and 10 (Governing Law and Jurisdiction).
6.5 If CI gives the Customer notice under clauses 6.1, 6.2 or 6.3 and this Agreement is terminated before the end of the Subscription Period or any applicable Renewal Period the Customer will recompense CI for all loss and damage which it will have suffered by reason of such early termination including, inter alia, by paying to CI the Termination Fee. The Customer will in any event pay to CI on demand any costs and expenses (including legal costs) which CI incurs in enforcing the terms of this Agreement following breach by the Customer and on an indemnity basis.
6.6 Notwithstanding any other provision in this Agreement all payments payable to CI under this Agreement shall become due immediately upon its termination, howsoever arising.
6.7 The Customer may terminate this Agreement (in full or in respect of licences for a number of Named Users) before the end of the Subscription Period or any applicable Renewal Period by giving one calendar month’s notice via the Platform and paying to CI the applicable Termination Fee.
6.8 The rights and obligations of both parties under the Agreement which have accrued up to the date of termination shall survive and continue in force notwithstanding termination of the Agreement for any reason whatsoever.
7. Warranty and Liability
7.1 Subject to the remaining provisions of this clause 7, CI warrants that the Service will be of satisfactory quality. CI provides no further warranty in respect of the Service. CI specifically does not warrant that the operation or use of the Service will be uninterrupted, completely secure or error free.
7.2 Participants and Customers are responsible for the referential data and transactional data that is provided via the Service respectively and CI makes no representations or warranties regarding them. The Service does not validate, cleanse or alter any data entered via the Service by Participants or Customers’ users. Except as specifically set forth in this Agreement, CI does not give or make any warranties or representations regarding the use, or the results of the use, of any data accessed or received using the Service or warrant or represent that such data will be accurate, up to date or error free.
7.3 The Customer shall promptly provide CI with any information it becomes aware of relating to any errors, problems or related issues concerning data accessed or retrieved via the Platform.
7.4 CI specifically does not warrant that the Service will meet the business needs nor any other requirements of the Customer and CI does not give any warranties regarding the availability of the Service nor regarding the performance of the Service or the speed or responsiveness of such.
7.5 The Customer’s sole and exclusive remedy under the warranty given in Clause 7.1 shall be limited to repair or replacement of any defective part of the Service free of charge subject to the terms of this Agreement as soon as reasonably possible after CI is notified of any errors in the Service. The above liability of CI will be the Customer’s sole remedy in respect of the Service being defective and will be in full and final settlement of and represents the entire liability of CI for the Service arising under or in connection with this Agreement. Accordingly, CI shall not be liable to the Customer in connection with the Service for any other losses, claims, damages, liabilities or expenses suffered by the Customer either direct or indirect (and including without limitation direct loss of profits and replacement and renewal costs) whether in contract, tort (including negligence) or otherwise however arising all of which are fully excluded.
THE CUSTOMER’S ATTENTION IS DRAWN PARTICULARLY TO SUB-CLAUSES 7.6 TO 7.10 INCLUSIVE.
7.6 Except as stated in clause 7.1 the Service is provided without any warranty whatsoever and all warranties, conditions and other terms of any kind, expressed or implied by operation of law or otherwise for the Service (except for the conditions implied by section 12 of the Sale of Goods Act 1979) including, without limitation, any warranty or condition of quality, performance, satisfactory quality, fitness for a particular purpose or non-infringement are excluded from the Agreement to the fullest extent permitted by law.
7.7 Without prejudice to the remaining provisions of this clause 7 and subject to clause 7.11, the liability of CI to the Customer for direct loss or damage whether in contract, tort (including negligence) or otherwise arising out of or in connection with its performance or its total or partial failure to perform in accordance with the terms of the Agreement, shall be limited to and shall not in any circumstances exceed the Charges that have been paid by the Customer to CI pursuant to this Agreement during the twelve month period immediately preceding the event giving rise to the claim and, where there is more than one event giving rise to a claim, during the twelve month period immediately preceding the last event giving rise to such claim.
7.8 CI shall not in any circumstances be liable whether in contract, tort (including negligence) or otherwise for any incidental, indirect, special or consequential loss or damage howsoever arising suffered or incurred directly or indirectly by the Customer in connection with, or arising out of, the use, furnishing or functioning of the Service.
7.9 CI shall not be liable whether in contract, tort (including negligence) or otherwise for any loss of profit, business revenues, loss of contracts, loss of data, loss of operational time or effectiveness, statutory or other fines, loss of any anticipated savings or loss of business opportunity, loss of goodwill or damage to reputation or for any special, indirect or consequential loss in each case suffered or incurred directly or indirectly by the Customer or any other person in connection with or arising out of the use, furnishing or functioning of the Service and the parties agree that the categories of loss as referred to at this clause 7.9 shall be distinct and severable.
7.10 CI shall not in any circumstances be liable for any failure or fault in the Service due either wholly or partly to network issues, hardware fault(s) or fault(s) or failure of any tablet operating systems, mobile printers, SIM cards, mobile network performance, broadband performance, WIFI or Bluetooth connectivity or any other equipment or services provided by a third party.
7.11 Nothing in the Agreement excludes or limits the liability of CI for death or personal injury caused by its negligence or fraudulent misrepresentation.
8. Confidentiality
8.1 The Customer acknowledges that the Service contains and constitutes valuable confidential proprietary intellectual property and information of CI and/or its suppliers which is not obtainable, except from CI, its suppliers or its authorised agents, and that CI and/or it suppliers would be damaged if such information was disclosed to others.
8.2 CI and the Customer shall keep confidential and shall use solely for the purposes permitted by this Agreement or to perform its obligations under this Agreement all information of the other party designated as confidential or which by its nature is obviously confidential and which is obtained under or in connection with the Agreement and shall not divulge the same to any third party without the prior written consent of the disclosing party.
8.3 CI and the Customer may divulge confidential information of the other party only to those employees bound under equivalent conditions of confidence who are directly involved in the use of the Service and shall ensure that such persons are aware of and undertake to comply with these obligations of confidentiality.
8.4 The provisions of this clause shall not apply to any information which:
8.4.1 is or becomes public knowledge other than by breach of the Agreement;
8.4.2 the receiving party can prove was in the possession of the receiving party without restriction before the date of receipt from the disclosing party; and/or
8.4.3 is obtained from a third party who is lawfully authorised to disclose the same.
8.5 The parties acknowledge that any breach of the Agreement (other than a failure to make payment) may injure the other party irreparably and that money damages alone may not be a sufficient remedy for such a breach. Accordingly it is agreed that (apart from in the case of a failure to make payment) each party shall be entitled to specific performance and/or injunctive relief without proof of damage, from any English court, in addition to all other remedies available under the terms of the Agreement.
8.6 Notwithstanding the termination of the Agreement for any reason whatsoever, the obligations of both parties as to disclosure and confidentiality shall remain in force for a period of five years following termination.
9. General
9.1 This Agreement constitutes the entire understanding and agreement between CI and the Customer regarding the Service and supersedes any communications, advertising or representations by agents, employees, distributors and dealers of CI whether made in writing or orally and any terms and conditions specified in any prior purchase order issued by the Customer, unless agreed otherwise in writing by both parties.
9.2 The Agreement may only be modified in a written amendment signed by an authorized representative of CI.
9.3 If any provision of the Agreement shall be unlawful, void, or for any reason unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of the Agreement.
9.4 The failure to exercise or delay in exercising a right or remedy provided by the Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or of any other right or remedy.
9.5 Either party may assign or otherwise transfer the Agreement in whole or in part or any benefit or interest therein to any person provided that:
9.5.1 it gives the other party written notice of such assignment or transfer within a reasonable period; and
9.5.2 the assigning or transferring party remains primarily responsible for the breaches of the assignee/transferee unless agreed otherwise in writing.
9.6 No term of the Agreement shall be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999. This does not affect any right of a third party which exists other than pursuant to that Act.
9.7 Except in relation to the Customer’s obligations to pay CI the Charges neither party shall be liable to the other for any delay in performing or failure to perform any of its obligations or for any failure of the Service to perform any of its functions under this Agreement caused by circumstances beyond its reasonable control including, without limitation, emergency, acts or omissions of Government, highway, telecommunications operators, regulatory or other competent authority, breakdown or malfunctioning of the world wide web or other communication links between the Customer and the Service, any strikes, lock out or other industrial disputes (whether involving the workforce of the party so prevented or of any other party), act of God, environmental conditions, severe inclement weather, explosion, inability to obtain supplies of power, fuel or transport, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, changes to hardware or computer operating systems which could not have reasonably been foreseen, accident, breakdown of plant or machinery, fire, flood or storm or default of suppliers or sub-contractors.
9.8 Any written notices or reminders to be given or made pursuant to this Agreement shall be sent by email:
9.8.1 for CI to the email address detailed in clause 1.1.2 of these Terms; and
9.8.2 for the Customer shall be address to the Customer’s email address as notified to CI during the registration process and in each case shall be deemed to have been duly given or made on the day of delivery.
10. Governing Law and Jurisdiction
10.1 The Agreement shall be governed by and construed in accordance with English Law and CI and the parties agree to submit to the exclusive jurisdiction of the English Courts.
10.2 This Agreement has been drafted in English and translated into the Customer’s local language. In the event of any inconsistency between the two versions, the English version shall prevail.

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