EV READY TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement the following words have the following meanings:
Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Certificate: the certificate (including all annexes) provided to a Site by Thatcham confirming that:
a) All Users at the Site have completed the training required as part of the Ecademy Services; and
b) at least 2 Users at the Site have successfully completed a level 3 Electric Vehicle Qualification (or equivalent;
Confidential Information: information that is proprietary or confidential (however recorded or preserved) disclosed by a party to the other party or to which the other party has access pursuant to this Agreement including but not limited to:
a) the terms of this Agreement; and
b) any information that would be regarded as confidential by a reasonable business person relating to:
i. the business, affairs, customers, client, suppliers, plans of the disclosing party;
ii. any analysis, conclusions or other information or data generated by the use of the Ecademy Services or any such derivative information or data; and
iii. the operation, processes, product information, know-how, designs, trade secrets or software of the disclosing party.
Coronavirus Event: an event or delay or necessary action caused by, or arising from or in relation to, a Coronavirus epidemic or pandemic that prevents or delays the performance of any obligations under this Agreement;
Customer: as set out on the Order Form;
Data Protection Laws: all applicable laws from time to time in force in the United Kingdom relating to the protection of personal information, including the Data Protection Act 2018, the Privacy and Electronic Communications (EC) Directive Regulations 2003 and (for so long as it is directly applicable) the General Data Protection Regulation (EU 2016/679) and any laws substituting, re-enacting or replacing any of the foregoing, as amended or updated from time to time and in force in the United Kingdom;
Documentation: any documents made available to the Customer by Thatcham from time to time as part of the Ecademy Services.
Ecademy Services: the online training courses and assessments that Thatcham has agreed to supply to the Customer as set out in the Order Form;
Fee: the fee for the Services set out in the Order Form along with any agreed additional fee;
Force Majeure: all unforeseeable and unavoidable events (including a Coronavirus Event) beyond the reasonable control of the Party affected, which prevent or delay in total or in part the carrying out of its obligations (e.g. fire, flood, accidents, war, riots, insurrection, civil disturbance, acts of government, governmental regulations) but excluding transportation difficulties, strike, lock out or other labour disputes of the Supplier or third parties;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Normal Business Hours: 8:30 am to 4.30 pm on a Business Day;
Order Form: The order form for the Services sent to the Customer by the Thatcham and agreed by the Customer;
Services: The provision by Thatcham of the Ecademy Services and the Certificate as set out in the Order Form;
Site(s): The Customer site or sites as listed on the Order form;
Term: the period shown on the Order Form;
Thatcham: Thatcham Research incorporated in England and Wales with registered number 00967763, whose registered office is at Colthrop Way, Thatcham, Berkshire, RG19 4NR;
User: each individual receiving the Ecademy Services (whose details have been provided by the Customer to Thatcham) and who is authorised by the Customer to use the Ecademy Services in accordance with the provisions of this Agreement.
1.2. In this Agreement unless the context otherwise requires:
1.2.1. clause headings are included for convenience only and will not affect the construction or interpretation of this Agreement;
1.2.2. references to numbered clauses are references to the relevant clause in this Agreement;
1.2.3. use of the singular includes the plural and vice versa;
1.2.4. a reference to writing includes email;
1.2.5. all references to the parties include their permitted successors and assigns; and
1.2.6. any reference to a statute or statutory provision includes references to that statute or statutory provision as the same may from time to time be amended, extended, re-enacted or replaced (whether before or after this Agreement) and including all subordinate legislation made under it from time to time.
1.3. Any words that follow include, includes, including, in particular or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
2.1. Subject to the Customer’s payment of the amounts due under this Agreement, the restrictions set out in this clause 2 and any other terms set out in this Agreement, Thatcham hereby grants to the Customer during the Term a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit Users to access and use the Ecademy Services and the Documentation solely for the purposes of such Users completing the training courses and assessments provided as part of the Ecademy Services and for the Customer to receive the benefit of the Services.
2.2. The Customer and the Users may download and print the Documentation as required in a manner consistent with the use of the Ecademy Services. The Customer acknowledges that the Documentation is licensed and not sold and the Customer receives no rights other than those specifically granted to it under this Agreement.
2.3. The Customer acknowledges that any third party content provided as part of or in connection with the Services may be subject to further licence restrictions, in addition to the ones set out in clause 2.1, as notified by Thatcham from time to time.
2.4. The Customer represents, warrants and undertakes that the Ecademy Services, the Documentation and the Certificate will be used only in accordance with this Agreement and any other licence restrictions or terms notified by Thatcham from time to time.
2.5. The right granted by Thatcham to the Customer under this clause 2 is subject to the Customer and its Users not:
2.5.1. copying, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of the Ecademy Services or Documentation;
2.5.2. permitting any use of the Ecademy Services or Documentation in any manner by any third party (including permitting use in connection with any timesharing or service bureau, outsourced or similar service to third parties or making the Ecademy Services or Documentation (or any part) available to any third party or allowing or permitting a third party to do any of the activities described in clause 2.5.1);
2.5.3. combining, merging or otherwise permitting the Ecademy Services or the Documentation to become incorporated in any other program or service, or arranging or creating derivative works based on it (in whole or in part); or
2.5.4. attempting to reverse engineer, observe, study or test the functioning of or decompile the Ecademy Services (or any part).
save for as may be allowed:
2.5.5. by any applicable law which is incapable of exclusion;
2.5.6. by agreement between the parties; or
2.5.7. to the extent expressly permitted by this Agreement.
3. ACCESS TO THE ECADEMY SERVICES
3.1. Within 10 Business Days of receipt of a list of Users and the agreed Fee, Thatcham will deliver access details and passwords for the purpose of allowing such Users to use the Ecademy Services.
3.2. The Customer acknowledges and agrees that the Users who shall be given access to the Ecademy Services pursuant to clause 3.1 have individual access to the Ecademy Services. The Customer shall, and shall ensure that Users shall, keep confidential and shall not under any circumstances share their passwords or access details provided to facilitate access to the Ecademy Services with any third party (including, in the case of the Users, the Customer’s other employees, officers, agents and independent contractors).
3.3. The Customer shall contact Thatcham if there is any change in Customer personnel who are Users (including when Users cease to be employed or engaged by the Customer.
3.5. The Customer shall be liable at all times to Thatcham for all acts and omissions of the Users and anyone accessing the Ecademy Services using user logons provided for use by Users.
4. AVAILABILITY OF THE ECADEMY SERVICES
4.1. Thatcham shall, during the Term, provide the Ecademy Services to the Customer on and subject to the terms of this Agreement.
4.2. Thatcham shall use commercially reasonable endeavours to make the Ecademy Services available 24 hours a day, seven days a week, except for:
4.2.1. scheduled maintenance for which Thatcham will give the Customer at least 5 Business Days’ notice in advance;
4.2.2. unscheduled maintenance performed outside of Normal Business Hours, for which Thatcham will use reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance; and
4.2.3. emergency maintenance in respect of which Thatcham will use reasonable endeavours to notify the Customer as soon as possible.
4.3. Thatcham will use reasonable endeavours to notify the Customer in advance of scheduled maintenance, but the Customer acknowledges that it may receive no advance notification for emergency maintenance or downtime caused by an event outside Thatcham’s reasonable control.
4.4. The Customer acknowledges that Thatcham is entitled to modify the features and functionality of the Ecademy Services as part of its ongoing development of the Ecademy Services. Thatcham shall use reasonable endeavours to ensure that any such modification does not adversely affect the Customer’s use of the Ecademy Services.
5. SUSPENSION OF ECADEMY SERVICES
5.1. Without prejudice to its rights under clause 14.2, Thatcham may suspend access to the Ecademy Services to all or some of the Users if:
5.1.1. Thatcham suspects that there has been any misuse of the Ecademy Services or breach of this Agreement;
5.2. the Customer fails to pay any sums due to Thatcham by the due date for payment.
5.3. Thatcham will notify the Customer or the affected User as soon as possible after suspending the Ecademy Services.
5.4. Where the reason for the suspension is suspected misuse of the Ecademy Services or breach of this Agreement, without prejudice to its rights under clause 14.2, Thatcham will take steps to investigate the issue and may restore or permanently suspend access at its discretion. If Thatcham considers it appropriate to permanently suspend access to all Users, it will notify the Customer in writing and this Agreement will terminate immediately on service of such notice.
5.5. In relation to suspensions under clause 5.1.1, access to the Ecademy Services will be restored promptly after Thatcham receives payment in full and cleared funds.
5.6. All Fees shall remain payable during any period of suspension notwithstanding that the Customer or some or all of the Users may not have access to the Ecademy Services.
6. DELIVERY OF ECADEMY SERVICES
6.1. It may be necessary, for reasons beyond the control of Thatcham, to change the content of the Ecademy Services or the means of delivery. Thatcham will provide the customer with such notice as is reasonably practicable in the event of any such changes.
6.2. Thatcham warrants to the Customer that the Ecademy Services will be provided using reasonable skill and care.
7. PRE REQUISITE KNOWLEDGE AND EXPERIENCE
7.1. The Customer acknowledges and agrees that the content of the Ecademy Services is provided for training purposes and is only intended to be used by trained professionals in the motor repair and insurance industries. It is not intended to be substitute for professional or specialist experience and needs to be considered in the context in which it is being used.
7.2. The Customer is responsible for ensuring that each User has a suitable level of skill and competence to participate in the Ecademy Services. Thatcham does not accept any responsibility for Users that fail assessments or are unable to complete or participate in any training provided as part of the Ecademy Services due to having an inadequate skill level.
7.3. The Customer will (and will ensure that its Users shall) exercise professional judgment and its / their own care and skill before taking, or refraining from, any action on the basis of the content of the Ecademy Services.
8. PROVISION OF CERTIFICATE
8.1. Thatcham shall provide a Site with the Certificate upon:
8.1.1. Completion of the training and assessments required as part of the Ecademy Services by all Users at the Site; and
8.1.2. Receipt of satisfactory evidence of successful completion of a Level 3 Electric Vehicle qualification (or equivalent) by at least 2 Users at the Site.
8.2. The Customer may publicly display the Certificate at the Site and/or may share with 3rd parties requiring evidence of training and competency. When displaying or sharing the Certificate, the Customer shall ensure that the entire Certificate (including all annexes) are shared and/or displayed.
8.3. Thatcham shall have sole discretion in determining whether any of Level 3 Electric Vehicle qualification (or evidence of such qualification) is satisfactory.
8.4. Other than by displaying the Certificate, the Customer shall not be entitled to use Thatcham’s brand or to suggest or imply that the Customer is approved, certified, recommended by or affiliated in any way with Thatcham.
8.5. In the event that Thatcham becomes aware of any error or misrepresentation in the evidence provided pursuant to clause 8.1.2, or of a change in circumstances at the Site which would render the Certificate invalid, Thatcham reserves the right to terminate the Customer’s permission to use and display the Certificate immediately upon the giving of written notice.
9. INTELLECTUAL PROPERTY
9.1. The Customer acknowledges and agrees that Thatcham and/or its licensors own all Intellectual Property Rights in the Ecademy Services, the Documentation and the Certificate. Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights, or any other rights or licences in respect of the Ecademy Services, the Documentation and the Certificate.
9.2. Thatcham confirms that it has all the rights in relation to the Ecademy Services, the Documentation and the Certificate that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
9.3. The Customer shall not reproduce part or all of the Documentation or the Certificate, nor replicate any part of the Ecademy Services in any form or for any purpose not authorised in this Agreement without the prior written permission of Thatcham.
9.4. The re-distribution, re-publication or other making available of the Documentation to third parties is prohibited.
9.5. The Customer agrees to procure the compliance of its employees and sub-contractors with the provisions of this clause 9.
10.1. The Customer shall defend, indemnify and hold harmless Thatcham against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s breach of this Agreement.
10.2. Thatcham shall defend the Customer against any claim that the Ecademy Services, Documentation or Certificate infringes any United Kingdom patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
10.2.1. Thatcham is given prompt notice of any such claim;
10.2.2. the Customer provides reasonable co-operation to Thatcham in the defence and settlement of such claim, at Thatcham’s expense; and
10.2.3. Thatcham is given sole authority to defend or settle the claim.
10.3. In the defence or settlement of any claim, Thatcham may procure the right for the Customer to continue using the Ecademy Services, Documentation or Certificate (or any affected part), or replace or modify any or all of the Ecademy Services, Documentation or Certificate so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4. In no event shall Thatcham, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
10.4.1. a modification of the Ecademy Services, Documentation or Certificate by anyone other than Thatcham;
10.4.2. the Customer’s use of the Ecademy Services, Documentation or Certificate in a manner contrary to the instructions given to the Customer by Thatcham; or
10.4.3. the Customer’s use of the Ecademy Services, Documentation or Certificate after notice of the alleged or actual infringement from Thatcham or any appropriate authority.
10.5. This clause 10 states the Customer’s sole and exclusive rights and remedies, and Thatcham’s (including Thatcham’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights or right of confidentiality.
11. FEES AND PAYMENT
11.1. The Customer shall pay the Fee to Thatcham for the Services in accordance with this clause 11 and as set out in the Order Form.
11.2. The Customer shall be liable to pay any value added tax (VAT) due in respect of the Services to Thatcham at the prevailing rate, subject to receipt of a valid VAT invoice.
11.3. Thatcham shall submit invoices for the Fee plus VAT (if applicable) to the Customer in accordance with the Order Form. Each invoice shall include all reasonable supporting information required by the Customer.
11.4. The Customer shall pay each invoice due and submitted to it by Thatcham, within 30 days of receipt, to a bank account nominated in writing by Thatcham.
11.5. If the Customer fails to make any payment due to Thatcham under this Agreement by the due date for payment, then, without limiting Thatcham’s remedies under clause 5:
11.5.1. the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
11.5.2. Thatcham may suspend all Services until payment has been made in full.
11.6. All amounts due under this Agreement from the Customer to Thatcham shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11.7. Thatcham reserves the right to charge an additional administration fee in the event of any material change required by the Customer to the delivery or structure of the Services.
12.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
12.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2. was in the other party’s lawful possession before the disclosure;
12.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
12.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2. Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
12.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
12.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.6. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.7. The above provisions of this clause 12 shall survive termination of this Agreement, however arising.
13. DATA PROTECTION
13.1. Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Laws.
13.2. Without limitation to the generality of clause 13.1:
13.2.1. the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Thatcham so that Thatcham may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;
13.2.2. the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data Protection Laws and all other applicable data protection legislation;
13.2.3. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
13.2.4. each party shall assist the other party, at the other party’s cost, in respect to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
13.2.5. each party shall notify the other party without undue delay on becoming aware of a personal data breach.
13.3. In this clause 13, personal data, data controller and data subject shall have the meanings given to them in the Data Protection Laws.
14. TERM AND TERMINATION
14.1. This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Start Date and shall continue for the Term. Upon the expiry of the Term, this Agreement shall automatically terminate.
14.2. Without affecting any other right or remedy available to it, either party to this Agreement may terminate it with immediate effect by giving written notice to the other party if:
14.2.1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
14.2.2. the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
14.2.3. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.2.4. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.2.5. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.
14.3. On termination or expiry of this Agreement for any reason:
14.3.1. all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Ecademy Services and Documentation; and
14.3.2. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
14.4. Following termination or expiry of this Agreement for any reason, the Customer may continue to use and display the Certificate until such time as the training referred to in the Certificate is no longer valid.
14.5. Any provision of this Agreement expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
15. LIMITATION OF LIABILITY
15.1. Nothing in this Agreement excludes the liability of Thatcham:
15.1.1. for death or personal injury caused by Thatcham’s negligence
15.1.2. for fraud or fraudulent misrepresentation; or
15.1.3. any other liability which cannot be excluded or limited by law.