Solera HEVRA Terms and Condition
Terms and Conditions
These Terms and Conditions apply to the provision of the Services and by using the Services you agree to these Terms and Conditions, which may be updated by us from time to time with reasonable prior written notice including via email and electronic publications. You and us are each referred to herein as a “Party” and together, as the “Parties.” “We” or “us” or “Supplier” shall mean AutoMate Training Pty Ltd. “You” or “Customer” shall mean you, the customer or entity using the Services and agreeing to these Terms and Conditions. Capitalised terms used but not defined in the body of these Terms and Conditions are defined in Section 9.
1. SERVICE
1.1. Access Credentials. Supplier will provide Customer with access credentials to the Service. Access credentials may only be used by a specified employee, consultant or representative of Customer and not disclosed to third parties. Credentials may not be shared between users. Customer is responsible for all use of Access credentials and is liable for all misuse or unauthorised use of Access credentials.
1.2. Service Usage by Customer. Customer agrees to use Services during the Term and only for Customer’s legitimate business purposes and in compliance with Applicable Laws. Customer may not (a) sell or distribute the Service, (b) distribute the Service to third parties, or (c) use Service in any product sold or distributed to third parties.
1.3. Restrictions. Customer agrees that it shall not directly or indirectly (i) use the Service for any illegal, unlawful or fraudulent purpose, (ii) modify, enhance, or alter the Service or Supplier Portal, or prepare derivative works therefrom; (iii) decompile, decode, unlock, attempt to discover the source code of, or otherwise reverse engineer, any Service or Supplier product; (iv) use the Service in such a manner as to interfere with any proprietary rights of Supplier or other party, disrupt the functionality of any components, or interfere with or restrict use by other customer of Supplier; (v) harass, threaten, or harm any person; (vi) transmit content or data which contains viruses, “worms”, “trojan horses”, spambots, or other harmful code; (vii) transmit excessive amounts of data, (viii) sell, transfer, novate, assign, or convey any rights under this Agreement to any third party, (iv) use any of the Service or any output, data, or results from the Service for any machine learning or artificial intelligence development, or (x) assist, facilitate, enable, or permit others to do any of the foregoing. If Supplier reasonably believes that any of these have occurred, it may take action it deems necessary (in Supplier’s sole discretion) to limit or stop the actions, including suspension or termination of the Service without notice.
1.4. Licence. Supplier hereby grants to the Customer a personal, non-exclusive, non-transferrable, non-sublicensable, revocable licence and right to use the Service for the Term in the UK only for its ordinary business purposes.
2. FEES AND PAYMENT
2.1. Fees. Customer shall pay Supplier all fees and charges in accordance with these Terms and as Supplier may determine. Upon thirty (30) day written notice, fees and charges may be updated by Supplier. Upon payment (or part payment) of the fee, no refund will be made for any cancellation subsequently received during that period.
2.2. Payment. All invoices or fees for the Service are payable within thirty (30) days after the invoice date. Any amounts payable by Customer to Supplier that remain unpaid after the applicable due date will be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount allowable by law from the due date until such amount is paid. Customer will reimburse Supplier for reasonable legal fees, expenses and costs incurred with collecting delinquent payments.
2.3. Taxes. Customer shall, in addition to all other amounts payable under the Agreement, pay all sales, use, value added or other taxes however designated, which are levied or imposed by reason of the transactions contemplated by the Agreement, except taxes related to Supplier’s net income. If a transaction is exempt from tax, Customer shall provide Supplier a valid exemption certificate.
3. TERM AND TERMINATION
3.1. Term. The initial term of shall be twelve (12) months (the “Initial Term”) beginning on the date of this Agreement or when the Service is first used (whichever is earlier), and automatically renew for consecutive twelve (12) month periods (each, a “Renewal Term” and together with the Initial Term, the “Term”) except where written notice of non-renewal is provided to the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term, as applicable. Notwithstanding anything to the contrary in this Agreement, Supplier shall have the right to terminate or suspend (in its absolute discretion) this Agreement or any Service with immediate written notice if a party supplying to the Supplier withdraws its products or services and as a result the Supplier is no longer able to provide the Services.
3.2. Termination for Cause. Either Party may terminate the Agreement upon written notice to the other Party upon any of the following events: (i) the other Party has breached its representations, warranties, covenants or obligations in the Agreement, and the breach remains uncured for at least (30) days following written notice of such breach from the non-defaulting Party, or (ii) after the other Party ceases business operations, dissolves, becomes insolvent, or is subject to any bankruptcy or similar legal process or proceeding, has a receiver appointed, makes an assignment for the benefit of creditors, or similar actions are taken.
3.3. Post-Termination. Expiration or termination of the Agreement (i) shall not relieve the Parties of any obligation accruing prior to such expiration or termination, and (ii) immediately terminates the right to use the Service and any rights or license granted to Customer.
3.4. Survival. The Parties’ rights and obligations under Sections 1.1, 1.2, 1.3, and 2 through 9 will survive the expiration or any termination of the Agreement.
4. OWNERSHIP AND CONTROL
4.1. Ownership. Supplier and its licensors own all right, title, and interest to the proprietary and intellectual property rights, including but not limited to patent, copyright, trade secret, and trademark rights, in the Service and any materials, information, data, or deliverables provided to or for which access is granted to the Customer.
5. DISCLAIMERS AND LIMITATION OF LIABILITY
5.1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CUSTOMER AGREES AND ACKNOWLEDGES THAT ALL SERVICES, PRODUCTS, DATA, AND MATERIALS PROVIDED HEREUNDER BY SUPPLIER TO CUSTOMER ARE PROVIDED ON AN “AS IS” BASIS AND SUPPLIER HEREBY, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF ACCURACY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUPPLIER MAKES NO WARRANTY THAT THE SERVICE WILL BE CONTINUOUS OR UNINTERRUPTED, THAT THE SERVICE WILL BE ERROR-FREE, OR THAT ANY SPECIFIC RESULT OR OUTCOME WILL BE ACHIEVED BY UTILIZING THE SERVICES, PRODUCTS, DATA, OR MATERIALS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S USE, ACCESS, DOWNLOADS, OR OTHER EXPLOITATION OF THE SERVICES, PRODUCTS, DATA, AND MATERIALS PROVIDED BY SUPPLIER ARE AT CUSTOMER’S OWN DISCRETION AND RISK.
5.2. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, OR USE, OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY EITHER PARTY OR ANY THIRD-PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, AT LAW OR EQUITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE.
5.3. SUBJECT TO CLAUSE 5.6, SUPPLIER’S MAXIMUM AGGREGATE AND TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SUPPLIER UNDER THE AGREEMENT DURING THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (OR SERIES OF CLAIMS) OF LIABILITY. SUPPLIER SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE OR DELAY IS CAUSED IN WHOLE OR IN PART BY CUSTOMER NOT FULLY COMPLYING WITH ITS OBLIGATIONS UNDER THE AGREEMENT.
5.4. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY AND ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH SUPPLIER WOULD NOT HAVE ENTERED INTO THE AGREEMENT OR ORDER. PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. Customer accepts and agrees that the provisions of this clause 6 represent a fair and reasonable apportionment of risk having regard to the Services, and the fees, and Supplier accordingly consider it reasonable (and Customer agrees) for Supplier to limit and exclude Supplier’s liability on the basis set out in this clause.
5.5. Nothing in this clause 6 shall exclude or limit either party’s liability for death or personal injury resulting from a party’s negligence or for fraud or fraudulent misrepresentation.
6. CONFIDENTIALITY.
During the Term and at all times after its expiration or termination, each Party and its employees and agents agrees not to disclose (save for to its authorised representatives, personnel, or advisors) information that is identified (orally or in writing) as confidential or of such a nature that a reasonable person would understand such information to be confidential (“Confidential Information”) including but not limited to financial information, business methods, processes and procedures, clients and customers, marketing plans, and trade secrets, technical data and documentation, strategic planning, product/service specifications, prototypes, computer programs, source codes, algorithms, drawings, sketches, samples, databases, and models unless otherwise agreed or authorized. Confidential Information that may be provided to Customer includes but is not limited to information received through the Service, this Agreement, quotes and pricing terms, and all statistics, scores, reports or other analyses provided by Supplier. Confidential Information provided to Supplier does not include information about a vehicle such as vehicle identification numbers and vehicle make and model, loss data, data that does not identify Customer or its personnel and data that has been altered so that it does not identify Customer or its personnel. Each Party agrees not to distribute, disclose or otherwise make available Confidential Information to any third party nor use such information except as authorized by the Agreement. Notwithstanding any other provisions of the Agreement, Supplier has the right to use data that does not identify Customer or its personnel to improve the Service or to create services and products. The receiving Party may disclose Confidential Information pursuant to an order of a court or governmental agency, provided that where allowed by law, the receiving Party shall first notify the disclosing Party of such order and afford the disclosing Party the opportunity to seek a protective order relating to such disclosure.
For the purpose of this clause Confidential Information shall not include any information that is:
(a) lawfully in a recipient’s possession prior to disclosure by the discloser;
(b) becomes publicly known, otherwise than as a consequence of a breach of this Agreement or being revealed in court;
(c) independently developed by a party without use of the other party’s confidential information;
(d) disclosed to a third party pursuant to written authorisation from the discloser; and/or
(e) received from a third party without breach of any other relevant confidentiality obligation.
7. INDEMNIFICATION AND LIABILITY
7.1. BY SUPPLIER. SUPPLIER SHALL DEFEND CUSTOMER FROM AND AGAINST ANY THIRD PARTY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, LIABILITY AND EXPENSES (INCLUDING REASONABLE LEGAL FEES) TO THE EXTENT CAUSED BY ANY INFRINGEMENT BY THE SERVICES OF ANY COPYRIGHT OR PATENT (“IP CLAIM”). SUPPLIER SHALL HAVE NO LIABILITY TO THE EXTENT THAT AN IP CLAIM RESULTS FROM OR ARISES OUT OF (I) CUSTOMER’S OR ANY THIRD PARTY’S MODIFICATION OF THE SERVICE, (II) CUSTOMER’S USE OF THE SERVICE IN COMBINATION WITH PRODUCTS OR SERVICES NOT SUPPLIED BY SUPPLIER, PROVIDED THAT THE CLAIM WOULD NOT HAVE ARISEN IN THE ABSENCE OF SUCH COMBINATION, OR (III) THE USE OF THE SERVICE BY CUSTOMER IN A MANNER NOT IN ACCORDANCE WITH THIS AGREEMENT OR THE APPLICABLE DOCUMENTATION PROVIDED BY SUPPLIER.
7.2. BY CUSTOMER. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS SUPPLIER AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES AND SUCCESSORS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, LIABILITY AND EXPENSES (INCLUDING REASONABLE LEGAL FEES) BASED ON (A) CUSTOMER’S BREACH OF ITS COVENANTS, REPRESENTATIONS, WARRANTIES AND OBLIGATIONS IN THE AGREEMENT OR THESE TERMS, (B) USE BY CUSTOMER, INCLUDING WITHOUT LIMITATION ANY USE OF THE SERVICE BY CUSTOMER IN VIOLATION OF ANY APPLICABLE LAWS;
7.3. Procedure. The indemnified Party shall promptly notify the indemnifying Party of any indemnification claim in writing. The indemnifying Party shall assume the defence of the claim with counsel of its choosing. The indemnified Party agrees to cooperate fully with the indemnifying Party during such proceedings, including without limitation investigating, assistance with and responding to production requests, and preparation for, travel and appearances at depositions and/or hearings, all at the Indemnifying Party’s expense. The indemnifying Party shall be permitted to settle any action, except that it shall not settle any action or claim in any manner which could impose any penalty, limitation or admission of wrongdoing on the indemnified Party without the indemnified Party’s written consent, which may be given or withheld in such Party’s sole discretion.
8. GENERAL TERMS
8.1. Law and Venue. All matters arising out of or relating to the Agreement shall be governed by and construed in accordance with the laws of England of Wales, and both parties shall submit to the exclusive jurisdiction of the courts of England and Wales.
8.2. Force Majeure. A Party shall not be held liable to the other Party, nor be deemed to have defaulted under or breached the Agreement, any associated Order, or these Terms, for failure or delay in fulfilling or performing any obligation thereunder (other than an obligation for the payment of money) to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of such Party including, but not limited to, fire, floods, storms, embargoes, war, acts of war, riots, strikes, epidemic, pandemic, acts of God, terrorist activity or omissions or delays in acting by any governmental authority (each, a “Force Majeure Event”). In no event may Customer withhold payment as the result of any Force Majeure Event and the provisions of this clause shall not be relied upon in relation to any inability to pay.
8.3. Notice. Whenever notice is required to be given under the Agreement, it shall be given in writing and shall be deemed delivered (i) when transmitted, if transmitted via email with receipt acknowledged, (ii) upon delivery, if sent via overnight delivery service, (iii) five (5) days after mailing, if sent via certified or registered mail, return receipt requested, postage prepaid, or (iv) when delivered, if hand-delivered. Notices shall be delivered to the addresses in the Order.
8.4. Severability and Waiver. If any provision of the Agreement, any associated Order, or these Terms is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from the Agreement, Order, or these Terms, as applicable, while the remainder will continue in full force and effect. Waiver by either Party of any default or breach of the other Party will not constitute a waiver of any other or subsequent default or breach.
8.5. No Assignment. Neither Party may assign or otherwise transfer the Agreement or any associated Order to a third party without the prior written consent of the other Party; provided that Supplier may, without Customer’s written consent, assign or transfer the Agreement to an affiliate or in connection with any sale of all or substantially all of Supplier’s assets, stock or business to which the Agreement or associated Order relates (whether by merger, acquisition, change of control, reorganisation or operation of law). Any other purported assignment, transfer, or delegation will be null and void.
8.6. Entire Agreement. This Agreement and any exhibits and addendums, contain the entire understanding of the Parties with respect to the subject matter hereof. All express or implied representations, agreements and understandings, either oral or written, heretofore made are expressly superseded. The Agreement may be amended only by a written instrument duly executed by authorised representatives of both Parties.
8.7. Third Party Beneficiary. This Agreement is entered into with HEVRA as a third party beneficiary which can enforce any breaches directly against you.
8.8. EV qualifications. Customer is required to hold valid electric vehicle qualifications in order to use the Services, if Customer creates an account or enters into this Agreement but fails to provide proof of its electric vehicle qualifications, then Supplier shall be entitled to terminate and/or suspend this Agreement and/or the Service without notice and Supplier shall be entitled to charge a fee equivalent to one month’s fee for the Services to cover its administrative costs.
9. DEFINITIONS
9.1. “Agreement” means an Order together with these Terms and Conditions.
9.2. “Service” or “Services” means provision of comprehensive technical support and model coverage sourced from HEVRA, including model-specific repair documentation, live diagnostic assistance, ongoing technical guidance, and access to vehicle profiles for over 95% of hybrid and electric vehicle models as well as exclusive repair methods, test procedures, and continually updated documentation.
9.3. “Supplier Portal” means the website, application, or other mechanism through which Customer receives the Service and accesses the data, materials, or information provided by Supplier, which may be provided or hosted by one or more third parties, agents, or contractors of Supplier.