PACENOTES – PACENOTES NAVIGATOR DASHBOARD TERMS AND CONDITIONS
We license the use of our Pacenotes Navigator Dashboard to you on the basis of these Conditions. We do not sell the Navigator Dashboard to you and we remain the owners of the Navigator Dashboard and any associated documents at all times.
References to the Driver in these Conditions are to the individual downloading the Driver App. The Instructor's attention is drawn in particular to the provisions of condition 7.
1. Definitions and Interpretation
1.1 Definitions In these Conditions, the following definitions apply:
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Applicable Law
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in any jurisdiction in which the Services are to be supplied under these Conditions, any and all applicable laws, regulations and industry standards or guidance including any applicable and binding judgment of a relevant court of law or competent regulator;
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Business Day
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a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
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Commencement Date
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has the meaning given in condition 2.1;
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Conditions
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the terms and conditions set out in this document as amended from time to time in accordance with condition 12.3;
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Confidential Information
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any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to the business, affairs, customers, suppliers, employees, affiliates, products and/or methods of the Supplier disclosed to or otherwise obtained by the Driver in connection with these Conditions;
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Driver
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the individual who downloads the Driver App;
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Driver App
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the app to be downloaded by the Driver to facilitate the documenting of their driving instruction, known as Pacenotes;
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Deliverables
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all documents, products and materials developed by the Supplier or the Supplier Personnel as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts), whether made available to the Instructor through the Portal or otherwise;
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Force Majeure Event
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has the meaning given in condition 11;
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Instructor
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the instructor who a Driver authorises to access their driving data in the Portal;
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Intellectual Property Rights
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patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, 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;
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Licence
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has the meaning set out in condition 2.1;
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Privacy Policy
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the Supplier's privacy policy, as updated from time to time;
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Portal
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the Instructor portal created and maintained by the Supplier, through which the Instructor can access the driver tracking services;
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Services
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the driver tracking services, including use of the Portal and any Deliverables, to be provided by the Supplier;
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Supplier
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Trak (Global Solutions) Limited (registered in England and Wales with company number 06944694);
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Supplier Materials
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all materials, equipment and tools, drawings, specifications and data supplied or made available by the Supplier to the Instructor;
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Supplier Personnel
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the personnel, including subcontractors, engaged by the Supplier in the provision of the Portal and the performance of the Services;
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Vehicle
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a vehicle owned or used by the Instructor in the course of the Instructor's business or, where applicable, owned by the Driver, which is registered within the Portal;
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Virus
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any thing or device (including any software, code, file or programme) which may:
(a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
(b) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or
(c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
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1.2 Interpretation
In these Conditions, a reference to a statute or statutory provision is a reference to such statute or provision as amended, re-enacted or superseded from time to time and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Basis of contract
2.1 In consideration of the Instructor agreeing to abide by the terms of these Conditions, the Supplier grants to the Instructor a non-exclusive, non-transferable licence to use the Portal on the terms of these Conditions (the Licence) until the Licence is terminated in accordance with these Conditions. These Conditions apply to the exclusion of any other terms that the Instructor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Any drawings, descriptive matter, or advertising produced by the Supplier and any illustrations contained on the Supplier's website are produced for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.3 The Instructor waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document that is inconsistent with these Conditions.
3. Performance of the Services
3.1 The Supplier shall, for the duration of the Licence, make the Portal available to the Instructor in accordance with these Conditions in all material respects.
3.2 The Supplier shall use reasonable endeavours to ensure the availability of the Services, however, the Instructor acknowledges that:
(a) the provision of the Portal and the Services is dependent upon the Instructor fulfilling its obligations under these conditions;
(b) there may be circumstances beyond the Supplier's reasonable control which prevent the Portal from being available including but not limited to disablement of the Driver App whether actively caused by a party other than the Supplier or the Instructor or due to loss of connectivity;
such that the Supplier cannot guarantee the availability of the Portal or the Services.
3.3 The Instructor acknowledges that, unless otherwise agreed between the Instructor and the Supplier or notified by the Supplier, each Driver may only be registered to one Instructor at any one time. Accordingly, if a Driver is already registered and using Pacenotes with another instructor this will affect the Driver’s use of the Driver App and that Driver will not be able to be linked with the Instructor's Portal.
3.4 The Supplier warrants that it shall provide the Services with reasonable care and skill. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.
4. Instructor obligations
4.1 The Instructor shall:
(a) provide such information to the Supplier as the Supplier may reasonably request for the purpose of providing the Services and ensure that such information is accurate in all material respects;
(b) comply with all Applicable Law with respect to its activities under the Licence and these Conditions; and
(c) comply with condition 4.2.
4.2 When using the Portal, the Instructor must comply with all Applicable Laws and these Conditions. In particular, the Instructor must not:
(a) use the Portal or the Services in any unlawful manner or in a manner which promotes or encourages illegal activity or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including Viruses, or harmful data, into the Portal, any Service or any operating system;
(b) attempt to gain unauthorised access to the Portal or any networks, servers, operating systems or computer systems connected to the Portal;
(c) modify, adapt, translate or reverse engineer any part of the Portal or re-format or frame any portion of the pages comprising the Portal, save to the extent expressly permitted by these Conditions or by Applicable Law;
(d) infringe the Supplier's Intellectual Property Rights (including, without limitation, copyright infringement) or those of any third party in relation to the use of the Portal and the Services (to the extent that such use is not licensed by these Conditions);
(e) transmit any material that is defamatory, offensive or otherwise objectionable or which may or is likely to damage the reputation of the Supplier; and/or
(f) collect any information or data from the Portal (save as required for the purpose of obtaining the benefit of the Services) or the Supplier's systems or attempt to decipher any transmissions to or from the servers hosting the Portal or running any Service.
4.3 The Instructor shall indemnify the Supplier in respect of any claims arising from a breach of condition 4.2.
4.4 If the Supplier's performance of any of its obligations under these Conditions is prevented or delayed by any act or omission of the Instructor, a Driver or failure by the Instructor to perform any relevant obligation (Default):
(a) the Supplier shall, without limiting its other rights or remedies, have the right to suspend provision of the Services until the Instructor remedies the Default;
(b) the Supplier shall not be liable for any losses sustained or incurred by the Instructor arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in these Conditions;
4.5 the Instructor shall reimburse the Supplier on demand for any losses sustained or incurred by the Supplier arising directly from the Default.
5. Charges (reservation of the Supplier's position)
The Supplier shall provide the Services to the Instructor at no cost, however, the Supplier reserves the right to introduce charges from time to time, in which case the Agreement will terminate and the parties shall enter into a new contract for the provision of paid services.
6. Intellectual Property Rights
6.1 The Instructor acknowledges that all Intellectual Property Rights used by or subsisting in the Driver App and the Portal are and shall remain the sole property of the Supplier or (as the case may be) the third party rights owner.
6.2 All Intellectual Property Rights arising in the performance of the Services, including the use of the Driver App and the Portal, shall be owned by the Supplier.
6.3 The Instructor may use the Deliverables only for the purpose of receiving the Services and for the benefit of the Instructor. The Instructor shall not supply the Deliverables to any third party or use the Services or the Deliverables to provide a service to any third party other than the Instructor.
7. Liability
7.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its Supplier Personnel (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
7.2 Subject to condition 7.1, the Supplier shall under no circumstances whatsoever be liable to the Instructor, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for:
(a) any indirect, special, consequential or pure economic loss or damage;
(b) any loss of profits, anticipated profits, revenue or business opportunities;
(c) damage to goodwill;
(d) any liability relating to the use of the Instructor,
in each case arising as a direct or indirect result of the relevant claim.
8. Confidentiality
8.1 Subject to condition 8.2, each party to these Conditions (the Recipient) shall:
(a) use the other party's (the Disclosing Party's) Confidential Information solely for the performance of the Licence; and
(b) keep the Disclosing Party's Confidential Information strictly confidential and not, without the Disclosing Party’s prior written consent, disclose it to any other person.
8.2 The Recipient may disclose the Disclosing Party's Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Recipient's rights or carrying out its obligations under or in connection with the Licence and these Conditions and the Recipient shall ensure that such persons comply with this condition 8.2;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
(c) if such information is public knowledge or already known to the Recipient at the time of disclosure or subsequently becomes public knowledge other than by breach of any duty of confidentiality (contractual or otherwise).
8.3 This condition shall survive termination of the Licence.
9. Data Protection
9.1 The Supplier acknowledges and agrees that for the purposes of these Conditions the Supplier is the data controller.
9.2 The Supplier shall comply with the provisions of the Privacy Policy in its capacity as data controller and with the terms of the contract between the Driver and the Supplier.
9.3 For the purpose of this condition 9:
(a) the terms personal data, data controller, data processor and process have the meanings given to them in the General Data Protection Regulation.
10. Termination
10.1 Without limiting its other rights or remedies, the Instructor may terminate the Licence with immediate effect by [informing the Supplier in writing, whereupon the Supplier shall disable the Instructor’s access to the Portal in accordance with clause 10.4(c)].
10.2 Without limiting its other rights or remedies, the Supplier may suspend or terminate the Licence with immediate effect:
(a) by giving written notice to the Instructor if the Instructor commits a material breach of any term of these Conditions and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of being notified in writing to do so;
(b) where the contract between the Instructor and a Driver is suspended or terminated.
10.3 The Instructor acknowledges that because the Driver App, the Portal and the Services are provided on a no cost basis, the Supplier may need to withdraw provision of the Driver App or the Portal at any time where the Supplier, believes, in its sole discretion, that it is commercially necessary to suspend or discontinue the Services. Accordingly, the Instructor acknowledges and agrees that the Supplier may therefore suspend or terminate the Licence with immediate effect without penalty to the Instructor or any Driver.
10.4 On expiry or termination of the Licence for any reason:
(a) the parties' rights and remedies that have accrued as at termination shall be unaffected;
(b) conditions that expressly or by implication survive termination of the Licence shall continue in full force and effect; and
(c) the Instructor’s access to the Portal shall be switched off by the Supplier within 5 Business Days of the date of notice of termination or, if later, the date of termination.
11. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Licence and these Conditions to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event which hinders, delays or prevents performance of a party's obligations and which is either beyond that party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12. General
12.1 Assignment subcontracting and other dealings
(a) The Supplier may at any time assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of its rights or obligations under the Licence.
(b) The Instructor shall not assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of its rights or obligations under the Licence without the Supplier's written consent.
12.2 Entire agreement
The Licence (incorporating these Conditions) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Instructor acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in these Conditions.
12.3 Variation
Except as set out in these Conditions, no variation of the Licence, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.
12.4 Waiver
Except as set out in condition 2.3, no failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of or prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Severance
If any provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification or deletion of a provision under this condition shall not affect the validity and enforceability of the rest of the Conditions.
12.6 Notices
(a) Any notice given to a party under or in connection with the Conditions shall be in writing and shall be delivered by hand or by pre-paid first-class post or by a signed-for next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or, if not signed for, at the time the notice is left at the correct address; (ii) if sent by pre-paid first-class post, at 09:00 on the second Business Day after posting; and (iii) if sent by a signed-for next working day delivery service, at the time recorded by the delivery service.
(c) This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
(d) A notice given under the Conditions is not valid if sent by email.
12.7 Third party rights
No one other than a party to these Conditions and their permitted assignees shall have any right to enforce any of its terms.
12.8 Governing law and Jurisdiction
The Licence and these Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Licence and these Conditions or their subject matter or formation (including non-contractual disputes or claims).
