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Terms
and Conditions
1
DEFINITIONS
In
this document the following words shall have the following meanings:
1.1
"Agreement" means these Terms and Conditions together with the terms
of any applicable Service Specification;
1.2
"Customer" means the organisation or person who purchases services
from the Supplier;
1.3
"Intellectual Property Rights" means all patents, registered and
unregistered designs, copyright, trade marks, know-how and all other forms of
intellectual property wherever in the world enforceable;
1.4 "Service
Specification" means a statement of work, quotation or other similar
document describing the services to be provided by the Supplier;
1.5
"Supplier" means MyDriverUK.com, O&J Ltd, 19
Oswin Street, London, SE11 4TF, UK. Tel: 02088000952, Email: support@mydriveruk.com
2 GENERAL
2.1 These Terms and
Conditions shall apply to all contracts for the supply of services by the
Supplier to the Customer.
2.2 Before the
commencement of the services the Supplier shall submit to the Customer a Service
Specification which shall specify the services to be performed and the fees
payable. The Customer shall notify the Supplier immediately if the Customer does
not agree with the contents of the Service Specification. All Service
Specifications shall be subject to these Terms and Conditions.
2.4 MyDriverUK.com
is not an auctioneer. Instead the service allows registered Customers
to post bookings for registered private hire operator users to quote for. We
never take ownership of a booking and we are not involved in any transactions
between Customers and private hire operators. As a result, we have no control
over the accuracy of any booking listed on MyDriverUK.com. We are not
responsible for ensuring that Customers and private hire operators actually
complete a transaction. You accept sole responsibility for the legality of your
actions under English law.
2.5 Passenger car
operators may not use MyDriverUK.com to sub-contract work to other operators.
2.6 The Supplier
shall use all reasonable endeavours to complete the services within estimated
time frames but time shall not be of the essence in the performance of any
services.
3 FEES AND
PAYMENT
3.1 The fees for
the performance of the services are as set out in the Service Specification.
4 CUSTOMER
’S OBLIGATIONS
4.1 To
enable the Supplier to perform its obligations under this Agreement the Customer
shall:
4.1.1
co-operate with the Supplier;
4.1.2 provide the
Supplier with any information reasonably required by the Supplier;
4.1.3 obtain all
necessary permissions and consents which may be required before the commencement
of the services; and
4.1.4 comply with
such other requirements as may be set out in the Service Specification or
otherwise agreed between the parties.
4.2 The Customer
shall be liable to compensate the Supplier for any expenses incurred by the
Supplier as a result of the Customer ’s failure to comply with Clause 4.1.
4.3 Without
prejudice to any other rights to which the Supplier may be entitled, in the
event that the Customer unlawfully terminates or cancels the services agreed to
in the Service Specification, the Customer shall be required to pay to the
Supplier as agreed damages and not as a penalty the full amount of any third
party costs to which the Supplier has committed and in respect of cancellations
on less than five working days ’ written notice the full amount of the
services contracted for as set out in the Service Specification, and the
Customer agrees this is a genuine pre-estimate of the Supplier ’s losses in
such a case. For the avoidance of doubt, the Customer ’s failure to comply
with any obligations under Clause 4.1shall be deemed to be a cancellation of the
services and subject to the payment of the damages set out in this Clause.
4.4 In the event
that the Customer or any third party, not being a sub-contractor of the
Supplier, shall omit or commit anything which prevents or delays the Supplier
from undertaking or complying with any of its obligations under this Agreement,
then the Supplier shall notify the Customer as soon as possible and:
4.4.1 the Supplier
shall have no liability in respect of any delay to the completion of any
project;
4.4.2 if
applicable, the timetable for the project will be modified accordingly.
4.4.3 the Supplier
shall notify the Customer at the same time if it intends to make any claim for
additional costs.
5
ALTERATIONS TO THE SERVICE SPECIFICATION
5.1 The parties may
at any time mutually agree upon and execute new Service Specifications. Any
alterations in the scope of services to be provided under this Agreement shall
be set out in the Service Specification, which shall reflect the changed
services and fees and any other terms agreed between the parties.
5.2 The Customer
may at any time request alterations to the Service Specification by notice in
writing to the Supplier. On receipt of the request for alterations the Supplier
shall, within 5 working days or such other period as may be agreed between the
parties, advise the Customer by notice in writing of the effect of such
alterations, if any, on the fees and any other terms already agreed between the
parties.
5.3 Where the
Supplier gives written notice to the Customer agreeing to perform any
alterations on terms different to those already agreed between the parties, the
Customer shall, within 5 working days of receipt of such notice or such other
period as may be agreed between the parties, advise the Supplier by notice in
writing whether or not it wishes the alterations to proceed.
5.4 Where the
Supplier gives written notice to the Customer agreeing to perform alterations on
terms different to those already agreed between the parties, and the Customer
confirms in writing that it wishes the alterations to proceed on those terms,
the Service Specification shall be amended to reflect such alterations and
thereafter the Supplier shall perform this Agreement upon the basis of such
amended terms.
6 WARRANTY
6.1 The Supplier
warrants that the services performed under this Agreement shall be performed
using reasonable skill and care, and of a quality conforming to generally
accepted industry standards and practices.
6.2 Without
prejudice to Clause 6.1, and except as expressly stated in this Agreement, all
warranties whether express or implied, by operation of law or otherwise, are
hereby excluded in relation to the services to be provided by the Supplier.
7
INDEMNIFICATION
The
Customer shall indemnify the Supplier against all claims, costs and expenses
which the Supplier may incur and which arise, directly or indirectly, from the
Customer’s breach of any of its obligations under this Agreement, including
any claims brought against the Supplier alleging that any services provided by
the Supplier in accordance with the Service Specification infringes a patent,
copyright or trade secret or other similar right of a third party.
8
LIMITATION OF LIABILITY
8.1 Except
in respect of death or personal injury due to negligence for which no limit
applies, the entire liability of the Supplier to the Customer in respect of any
claim whatsoever or breach of this Agreement, whether or not arising out of
negligence, shall be limited to the fees paid by the Customer to which the claim
relates.
8.2 In no event
shall the Supplier be liable to the Customer for any loss of business, loss of
opportunity or loss of profits or for any other indirect or consequential loss
or damage whatsoever. This shall apply even where such a loss was reasonably
foreseeable or the Supplier had been made aware of the possibility of the
Customer incurring such a loss.
8.3 Nothing in
these Terms and Conditions shall exclude or limit the Supplier ’s liability
for death or personal injury resulting from the Supplier ’s negligence or that
of its employees, agents or sub-contractors.
9
TERMINATION
Either
party may terminate this Agreement forthwith by notice in writing to the other
if:
9.1 the other party
commits a material breach of this Agreement and, in the case of a breach capable
of being remedied, fails to remedy it within 30 calendar days of being given
written notice from the other party to do so;
9.2 the other party
commits a material breach of this Agreement which cannot be remedied under any
circumstances;
9.3 the other party
passes a resolution for winding up (other than for the purpose of solvent
amalgamation or reconstruction), or a court of competent jurisdiction makes an
order to that effect;
9.4 the other party
ceases to carry on its business or substantially the whole of its business; or
9.5 the other party
is declared insolvent, or convenes a meeting of or makes or proposes to make any
arrangement or composition with its creditors; or a liquidator, receiver,
administrative receiver, manager, trustee or similar officer is appointed over
any of its assets.
10
INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result
of the performance of this Agreement shall, so far as not already vested, become
the absolute property of the Supplier, and the Customer shall do all that is
reasonably necessary to ensure that such rights vest in the Supplier by the
execution of appropriate instruments or the making of agreements with third
parties.
11 FORCE
MAJEURE
Neither party shall be liable for any delay or failure to perform any of its
obligations if the delay or failure results from events or circumstances outside
its reasonable control, including but not limited to acts of God, strikes, lock
outs, accidents, war, fire, the act or omission of government, highway
authorities or any telecommunications carrier, operator or administration or
other competent authority, or the delay or failure in manufacture, production,
or supply by third parties of equipment or services, and the party shall be
entitled to a reasonable extension of its obligations after notifying the other
party of the nature and extent of such events.
12
INDEPENDENT CONTRACTORS
The
Supplier and the Customer are contractors independent of each other, and neither
has the authority to bind the other to any third party or act in any way as the
representative of the other, unless otherwise expressly agreed to in writing by
both parties. The Supplier may, in addition to its own employees, engage
sub-contractors to provide all or part of the services being provided to the
Customer and such engagement shall not relieve the Supplier of its obligations
under this Agreement.
13
ASSIGNMENT
The Customer shall not be entitled to assign its rights or obligations
or delegate its duties under this Agreement without the prior written consent of
the Supplier.
14
SEVERABILITY
If any
provision of this Agreement is held invalid, illegal or unenforceable for any
reason by any Court of competent jurisdiction such provision shall be severed
and the remainder of the provisions herein shall continue in full force and
effect as if this Agreement had been agreed with the invalid illegal or
unenforceable provision eliminated.
15 WAIVER
The failure by either party to enforce at any time or for any period
any one or more of the Terms and Conditions herein shall not be a waiver of them
or of the right at any time subsequently to enforce all Terms and Conditions of
this Agreement.
16 NOTICES
Any notice to be given by
either party to the other may be served by email, fax, personal service or by
post to the address of the other party given in the Service Specification or
such other address as such party may from time to time have communicated to the
other in writing, and if sent by email shall unless the contrary is proved be
deemed to be received on the day it was sent, if sent by fax shall be deemed to
be served on receipt of an error free transmission report, if given by letter
shall be deemed to have been served at the time at which the letter was
delivered personally or if sent by post shall be deemed to have been delivered
in the ordinary course of post.
17 ENTIRE
AGREEMENT
This
Agreement contains the entire agreement between the parties relating to the
subject matter and supersedes any previous agreements, arrangements,
undertakings or proposals, oral or written. Unless expressly provided elsewhere
in this Agreement, this Agreement may be varied only by a document signed by
both parties.
18 NO THIRD
PARTIES
Nothing in this Agreement is intended to, nor shall it confer any
rights on a third party.
19
GOVERNING LAW AND JURISDICTION
This
Agreement shall be governed by and construed in accordance with the law of
England and the parties hereby submit to the exclusive jurisdiction of the
English courts.
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