We are a marketplace platform and subscription service that provides our members with access to vehicles, which are supplied by manufacturers, dealers or fleet managers.
1.1What these terms cover. These Terms govern the use of our service. We are Wagonex Limited , and our registered office is Tramshed Tech, Pendyris Street, Cardiff, CF11 6BH, Our company number is 10312289. Our registered VAT number is 256959939. You are the Company and individual using the services that we provide for your business use.
1.2Why you should read them. Please read these terms and conditions carefully. These terms tell you who we are, how we will provide our services to you and you or we may change or end your contract. What to do if there is a problem and other important information.
2.1How to contact us. You can contact us by email at help@wagonex.com.
2.2How we may contact you. If we have to contact you we will do so by telephone oro by writing to you at the email address or postal address attached to your ‘Dealer Dashboard’
3.1How to contact us. In consideration for the Charges and subject to the terms of this Agreement, Wagonex shall use commercially reasonable endeavours to make the Platform available in accordance with these terms and conditions.
3.1.1Wagonex warrants to Client that:
(a)It has capacity and authority to perform the services duly authorised representative of Wagonex.
(b)It shall comply with all applicable laws, statutes, regulations and codes from time to time in force in relation to these terms and conditions.
4.1The Client shall supply the Client Services to Wagonex and Customers from the Commencement Date in accordance with this Agreement.
4.2The Client shall be responsible for:
4.2.1The provision of the Client Services to Customers via the Platform, and shall put in place terms and conditions between Client and Customers which are appropriate and compliant with applicable law.
4.2.2Handling all Customer claims, complaints and queries it receives directly from Customers and via Wagonex in relation to the Client Services, and shall promptly notify Wagonex of all such claims and complaints Wagonex is not already aware of, and all necessary information as to how the Client proposes to resolve and remedy each such Customer claim and complaint.
4.2.3Contacting the Customer via phone and email to arrange delivery and collection of the vehicles by the Customers accordingly.
4.3In performing the Client Services the Client shall meet any performance dates specified in the Deal Sheet or corresponding Service Level Agreement.
4.4Client warrants to Wagonex that it has capacity and authority to perform the services executed by a duly authorised representative of Client.
4.5In supplying the Client Services, the Client warrants that it shall:
4.5.1Provide the Client Services in accordance with Wagonex Requirements and that all vehicles shall be legal and roadworthy.
4.5.2Perform the Client Services with a reasonable level of care, skill and diligence in accordance with practice in the Client’s industry, profession or trade.
4.5.3Effect and maintain any and all necessary qualifications, certifications, memberships, authorisations, to perform the Client Services in accordance with practice in the Client’s industry, profession or trade.
4.5.4Only use personnel who are suitably skilled, qualified, adequately trained, experienced and capable to perform the tasks assigned to them, and in sufficient number to ensure that the Client’s obligations are fulfilled.
4.5.5Appoint a manager who shall have authority to contractually bind the Client on all matters relating to the Client Services. The initial manager shall be the Client’s Representative.
4.5.6Co-operate with Wagonex in all matters relating to the Client Services, and comply with all reasonable instructions of Wagonex.
4.5.7Ensure that it obtains, and maintains all consents, rights, licences and permissions (statutory, regulatory, contractual or otherwise) and including in relation to Personal Data, it may require and which are necessary to enable it to comply with its obligations in this aagreement.
4.5.8All information provided to Wagonex shall be accurate and up to date, and shall not contain any material errors.
4.5.9Ensure that the Client Services (including the receipt, use or onward supply of the
Client Services by Wagonex, its licensees and sub-licensees) do not:
(a) Infringe any third party rights (including Intellectual Property Rights).
(b) Contain any Virus, malicious code, such as “worms,” or other unauthorized hidden
programs.
(c) Be governed by orcontain any software which is subject to an Open Source Licence.
(d) Contain any Objectionable Content.
4.5.10Comply with all applicable laws, statutes, regulations and codes from time to time in force in relation to this Agreement (including Data Protection Legislation).
4.5.11Hold all Wagonex Materials in safe custody at its own risk, maintain the Wagonex Materials in good condition until returned to Wagonex, and not dispose of or use the Wagonex Materials other than in accordance with Wagonex’s written instructions or authorisation.
4.5.12Not do or omit to do anything which may cause Wagonex to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business.
4.6In relation to the Platform:
4.6.1Client shall, and shall procure that any Authorised Users shall, comply with the Platform’s terms of use.
4.6.2Client shall not store, distribute, upload or transmit any Virus or Objectionable Content to or through the Platform.
4.6.3The rights provided under this Agreement are granted to Client only, and shall not be considered granted to any subsidiary or holding company of Client Group, unless otherwise agreed.
4.6.4Client shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and the Wagonex Service and notify Wagonex promptly of any such unauthorised access or use.
4.7Client shall not itself, or permit others to:
(a)Attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Wagonex Service or the Platform except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties.
(b)Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties.
(c)Access all or any part of the Platform or Wagonex Service in order to build a product or service which competes with the Platform and/or the Wagonex Service.
(d)Subject to Clause 10.5, transfer, temporarily or permanently, any of its rights under this Agreement.
(e)Attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under Clause 4.8.
4.8In relation to Authorised Users:
4.8.1Client may only permit access to the Platform to the Authorised Users.
4.8.2Client shall comply with any limitation of the number of Authorised Users permitted to use the Platform as may be specified in the Deal Sheet.
4.8.3Client shall maintain a written list of current Authorised Users, and Client shall provide such list to Wagonex when reasonably requested by Wagonex from time to time.
4.8.4Client shall ensure that each Authorised User keeps a secure password for his use of the Platform, that such password is changed no less frequently than monthly and that each Authorised User keeps his password confidential.
4.8.5Wagonex may audit (in addition to the rights set out in Clause 11) the usage of the Wagonex Service and the Platform. Client shall provide all reasonable assistance in relation to any such audit, which may be conducted no more than once per quarter at Wagonex’s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Client's normal conduct of business.
4.8.6Without prejudice to Wagonex’s other rights, if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to Wagonex's other rights, Client shall promptly disable such passwords and shall not issue any new passwords to such individuals.
5.Intellectual property
5.1Wagonex grants to Client a limited, revocable, non-exclusive, royalty-free, non-assignable, non-sublicensable (save as permitted under this Agreement), non-transferable licence to Client and its Authorised Users during the Term to access and use the Platform and Wagonex Data solely for, and only to the extent necessary for, the provision of the Client Services in accordance with this Agreement.
5.2Client may only sub-license the rights granted in Clause 5.1 to its Authorised Users, unless otherwise agreed between the Parties.
5.3Nothing in this Agreement shall transfer the ownership of the Client Data, Client Materials and Client trade marks to Wagonex. All Intellectual Property Rights in the Client Data, Client Materials and Client trade marks shall be the absolute property of and shall vest and remain vested in Client.
5.4Nothing in this Agreement shall transfer the ownership of any of the Platform, Wagonex Service, Wagonex’s Background IP and Wagonex Data to Client. All Intellectual Property Rights in the Platform, Wagonex Service, Wagonex’s Background IP, Wagonex Data and Foreground IP shall be the absolute property of and shall vest and remain vested in Wagonex.
5.5To the extent that any Intellectual Property Rights in the Foreground IP does not automatically vest in Wagonex by operation of applicable law, Client hereby unconditionally and irrevocably:
5.5.1Assigns including by way of future assignment of Intellectual Property Rights with full title guarantee all right, title and interest in the Foreground IP to Wagonex.
5.5.2Waives and shall never assert any and all moral rights it has or may in the future have in or to the Foreground IP and agrees not to support, maintain or permit any claim by a third party for infringement of any moral rights in any such Foreground IP.
5.6During the Term, Wagonex grants to Client a limited, revocable, royalty-free, non-exclusive, non-transferable, non-sublicensable, worldwide right and licence to use, reproduce, distribute, the Wagonex trade marks during the Term on the Client’s website or in any marketing, press release or promotional material solely in relation to this Agreement subject always, in each case, to Wagonex giving the Client its prior approval of any such materials or references.
5.7During the Term, Client grants Wagonex a limited, revocable, royalty-free, non-exclusive, non-transferable, non-sublicensable, worldwide right and licence to:
5.7.1Use, adapt, modify, reproduce, distribute, transmit and create derivate works of the Client Data and Client Materials for the purposes of this Agreement.
5.7.2Use, reproduce, distribute Client’s trade marks and other Intellectual Property Rights to refer to Client on Wagonex’s website or in any marketing, press release or promotional material from time to time solely in relation to this Agreement subject always, in each case, to the Client giving Wagonex its prior approval of any such materials or references.
5.8The Parties shall:
5.8.1Only use the other Party’s trade marks as provided by such other Party and in accordance with any brand guidelines (if provided) and reasonable instructions given by the other Party.
5.8.2Provide to the other Party any brand assets (including high resolution logos, brand guidelines) or other material as reasonably requested for use in accordance with this Agreement.
5.8.3Cease use of the other Party’s trade marks (including in any marketing materials) immediately following the termination or expiry of the Agreement.
5.8.4Transfer to the other any goodwill which accrues to the other Party in relation to the use of the other Party’s trade marks under this Agreement on request.
6.Data Protection
6.1For the purposes of this Clause 6 and this Agreement, Data Controller, Data Processor, Data Protection Impact Assessments, Data Subject, Personal Data, Personal Data Breach and Process shall have the same meanings as in the Data Protection Legislation and Processes, Processing and Processed shall be construed in accordance with the definition of Process. Each party shall comply with the Data Protection Legislation applicable to it in connection with this Agreement.
6.2The following details apply to the processing being carried out under this Agreement:
6.2.1The Personal Data will be processed for the provision of the Client Services as set out in the Agreement.
6.2.2The Personal Data will be processed until the Agreement is terminated.
6.2.3The specific processing activities will be the collection, storage and transmission of personal data.
6.2.4The Personal Data processed concern the following categories of Data Subjects: Employees and Customers.
6.2.5The Personal Data processed include names, addresses, email addresses.
6.3Where Personal Data is Processed by Wagonex under or in connection with this Agreement, Wagonex is a Data Controller, Data Processor and Wagonex warrants that it shall:
6.3.1Only Process the Personal Data in accordance with instructions from the Client (who for the purposes of this Clause is a Data Controller), which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by the Data Controller to the Data Processor from time to time.
6.3.2Not otherwise modify, amend or alter the contents of the Personal Data or disclose or permit the disclosure of any of the Personal Data to any third party unless specifically authorised to do so in writing by the Data Controller.
6.3.3Implement and maintain appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful Processing and against accidental loss, unlawful destruction, damage, alteration, unauthorised disclosure or access to the Personal Data, which shall be appropriate to (a) the harm to the Data Subject which might result from such unauthorised or unlawful Processing, accidental loss, unlawful destruction, damage, alteration, unauthorised disclosure or access, and (b) the nature of the Personal Data which is to be protected.
6.3.4Keep all Personal Data and any analyses, profiles or documents derived there from separate from all other data and documentation of the Data Processor.
6.3.5Duly observe all obligations under the Data Protection Legislation which may arise in connection with the performance of its obligations under this Agreement, and shall not do any act or make any omission which puts or risks putting the Data Controller in breach of its obligations under the applicable Data Protection Legislation.
6.3.6Ensure that:
(a) any persons authorised by the Data Processor to Process the Personal Data are bound by
appropriate confidentiality obligations in respect of the Personal Data, or are otherwise bound by appropriate
statutory obligations of confidentiality.
(b) access to the Personal Data is only granted to those of the Data
Processor’s employees who need to have access to the Personal Data for the purposes of performance under this
Agreement and who have undertaken appropriate training (including data protection and security training),
informing them of the confidential nature of the Personal Data and ensuring compliance with the obligations as set
out in this Clause 6.
6.3.7Notify the Data Controller immediately, and no later than 24 hours after becoming aware, of any actual or suspected unauthorised access, disclosure or Personal Data Breach of Personal Data (“Incident”) and thereafter: (a) provide the Data Controller with all such information that it requests in connection with the Incident; (b) take any such steps as the Data Controller requires the Data Processor to take in order to mitigate the detrimental effects of any such Incident on the Data Subjects and/or the Data Controller; and (c) otherwise co-operate with the Data Controller in investigating and responding to the Incident and if requested by the Data Controller, notify Data Subjects of the Incident.
6.3.8Notify the Data Controller immediately, and no later than 24 hours after becoming aware,, of any: (a) complaint, notice or communication which relates to the Processing of any Personal Data Processed by the Data Processor on behalf of the Data Controller under this Agreement; (b) any legally binding request for disclosure of any of the Personal Data by a law enforcement authority unless otherwise required by law to preserve the confidentiality of the request; or (c) any exercise of any right by a Data Subject in respect of any Personal Data Processed by the Data Processor on behalf of the Data Controller under this Agreement; and provide the Data Controller with full co- operation and assistance via appropriate technical and organisational measures to enable the Data Controller to adequately respond to any such complaint, notice, communication, request or exercise of any right by a Data Subject.
6.3.9Assist the Data Controller, at no additional expense to the Data Controller, in complying with its obligations under the Data Protection Legislation, including without limitation: (a) fully cooperating with and making available to the Data Controller all information necessary to enable it to demonstrate its compliance with the Data Protection Legislation and allowing for and contributing to audits and inspections conducted by the Company and/or its representatives on reasonable notice and at reasonable intervals; (b) assisting the Data Controller with any Data Protection Impact Assessments (including without limitation, contributing to and participation in such assessments, and conducting such assessments on the Data Controller’s behalf) as may be required from time to time; (c) assisting the Company in responding to the exercise of any Data Subject rights by a Data Subject; (d) assisting the Data Controller in relation to any consultation procedures with the relevant regulator where the Data Protection Impact Assessments indicates that the use of Personal Data would be high risk; and (e) complying with any assessment, enquiry, notice or investigation under the Data Protection Legislation which shall include the provision of all data requested by the Data Controller within the timescale specified by the Data Controller in each case.
6.3.10Not Process such Personal Data to a country or a territory outside of the European Economic Area, without the express consent of the Data Controller, and if requested by the Data Controller, promptly enter into an agreement with the Data Controller or a member of Data Controller’s Group as may be required by Data Protection Legislation in respect of any transfer of Personal Data outside of the European Economic Area.
6.3.11Cease Processing the Personal Data immediately upon the termination or expiry of this Agreement and as soon as possible thereafter, at the Data Controller’s option, either return, or delete from its systems, the Personal Data and any copies of it or of the information it contains and the Data Processor shall confirm in writing that this Clause has been complied with in full.
6.3.12Not engage any third party Processors (Sub-Processors) to access the Personal Data or carry out any of the Processing activities of the Data Processor under this Agreement without the prior written consent of the Data Controller.
6.3.13Subject to obtaining the Data Controller’s consent pursuant to 11.3.12 : (a) remain primarily liable and responsible for all acts and omissions of its Sub-Processors as if they were its own; (b) ensure that it enters into a data processing agreement with any such Sub-Processors on terms no less onerous than as set out in this Clause 6; and (c) use its best endeavours to procure that the Data Controller has third party rights of enforcement in the data processing agreement between Data Controller and the relevant Sub-Processor.
6.3.14The Data Processor shall keep a record of their processing activities in accordance with Article 30 of the General Data Protection Regulation.
7.Limitation of Liability
7.1Subject to Clauses 7.2 , in no circumstances shall either Party be liable to the other in contract, tort (including, without limitation, negligence), or for breach of any statutory duty or otherwise by reason of or in connection with this Agreement for loss (whether direct or indirect) of profits, business, goodwill or anticipated savings or for any special, consequential or indirect loss whatsoever and howsoever arising.
7.2Nothing in this Agreement shall limit or exclude either Party’s liability for:
(a) death or personal injury caused by negligence.
(b) for fraudulent misrepresentation.
(c) [clause deleted].
(d) arising out of or in connection with a breach of Clauses 19.7.
(e) to the extent that such limitation or exclusion is not permitted by applicable law.
7.3Subject to Clauses 7.1 and 7.2 , either party’s total liability to the other in respect of any loss arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the payments received by Wagonex from Client in the preceding (or most recent) 6 month period of the Term.
7.4Without prejudice to any other rights or remedies that either Party may have, each Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of Clause 9 by the other Party. Accordingly, the non-defaulting Party shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of Clause 16
8.Force Majeure
8.1Provided it has complied with Clause 8.2 , if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
8.2The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party in
writing of the Force Majeure Event, the date on which it started, its likely or potential duration, the effect
of the Force Majeure Event on its ability to perform any of its obligations under this Agreement.
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its
obligations.
9.Confidentiality
9.1Each Party (Receiving Party) acknowledges and agrees that it shall treat as strictly confidential and shall use solely for the purposes contemplated by this Agreement all Confidential Information of the other Party (Disclosing Party).
9.2The Receiving Party shall hold and continue to hold in confidence any and all Confidential Information which it receives from the Disclosing Party and shall use at least the same degree of care to prevent the unauthorised use and/or disclosure of such Confidential Information as it uses to protect its own Confidential Information. Notwithstanding the foregoing, the Receiving Party acknowledges and agrees that it may only disclose any of the Disclosing Party’s Confidential Information to such members of its Group and of its directors, officers, employees and professional advisers as is strictly necessary for the purposes of this Agreement and shall procure that such persons are aware of and shall comply with the terms of this Clause 9 as if they were the Receiving Party and the Receiving Party shall be responsible for and remain fully and primarily liable to the Disclosing Party in respect of any breaches of this Agreement by any such persons.
9.3The above limitations on use and disclosure shall not apply to information which:
9.3.1can be demonstrated via documentary evidence as having been known to the Receiving Party before receipt of such information from the Disclosing Party (unless such information was disclosed in confidence);
9.3.2Is learned from a third party that was entitled to disclose it to the Receiving Party.
9.3.3Becomes known publicly other than through disclosure by the Receiving Party.
9.3.4Is authorised in advance in writing by the Disclosing Party to be released.
9.3.5Was disclosed by the Receiving Party pursuant to the requirements of law or regulation, a governmental or other regulatory or competition authority, a court or other authority of competent jurisdiction, judicial order, or by the requirements of a recognised stock exchange; provided that upon becoming aware of the requirement the Receiving Party (where it may lawfully do so) gives the Disclosing Party notice of this fact and takes such steps as the Disclosing Party may reasonably request to resist the disclosure.
9.3.6lawfully developed by the Receiving Party independently of and without reference to the Confidential Information of the Disclosing Party.
10.General
10.1This Agreement (including the Schedules, and any documents referred herein) sets out the entire agreement and supersedes any previous agreement or understanding between the Parties relating to its subject matter. Subject to Clause 7, each Party’s liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be limited to breach of contract.
10.2If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall be amended as may be necessary to make it valid. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.3A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.4Other than as expressly permitted under this Agreement and each Party’s permitted assignees, no other person that is not a Party to this Agreement shall have any rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
10.5Except as expressly permitted under this Agreement, neither Party shall transfer, assign or license the benefit of
any of its rights under this Agreement in each case without the prior consent of the other Party provided that each
Party may assign any or all of its rights under this Agreement to:
(a) any member of its Group.
(b) any entity which succeeds to all or substantially all of such Party’s assets and business.
10.6No modification, amendment or variation to this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties to this Agreement. For the avoidance of doubt, no modification or variation of this Agreement shall be valid if made by email.
10.7The Parties shall comply with all applicable laws relating to any-bribery and anti-corruption including the Bribery Act 2010.
10.8Nothing in this Agreement is intended, nor shall operate, to create a partnership or joint venture of any kind between the Parties or, save as expressly set out in this Agreement, shall authorise either Party to act as agent for the other, or to act in the name, or on behalf, of or otherwise to bind the other Party in any way.
10.9Each Party shall execute all such documents and take such action as may be necessary to give effect to this Agreement.
10.10This Agreement may be executed in any number of counterparts, each of which, when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement. For the purposes of completion, faxed signed counterparts or scanned copies of signed counterparts attached to email in portable document format sent to the other Party (and/or its legal representative(s)) shall be binding. No counterpart shall be effective until each Party has executed and delivered at least one counterpart.
10.11This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with English law. The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute, claim or matter that arises out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims).
11.Audit
11.1Client shall keep detailed, up-to-date, accurate and complete records (including financial records) relating to this Agreement.
11.2Wagonex may, at its own expense, upon no less than 30 Business Days' prior notice, have the right to request an audit of Client once every 6 months and for 12 months after the Term, solely for the purposes of verifying the Client’s compliance with the terms of this Agreement. The appointment and selection of the independent auditor will be agreed between the Parties.
11.3Such audit shall take place during Business Hours, and shall not unduly disrupt Client.
11.4If any such audit undertaken in accordance with this Clause 12 , reveals any underpayment, or overpayment, appropriate reconciliation shall be made either in the next payment due to Wagonex in accordance with the payment provisions in Clause 6 or within 30 days from discovery (whichever is the earlier). If the results of the audit show that there was an overpayment or underpayment by 2% or more of the undisputed amounts actually due for the audited period, Wagonex shall be reimbursed for all its reasonable and documented audit expenses.
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