Version 1.1 – 1st March 2021
Please read these terms of use (“Terms of Service”) carefully before accessing or using and of DealerKit Limited services (“Services”) provided through our websites (“Websites”).
The Websites are operated by DealerKit which is a limited company (“we” or “us” or “our”). These Terms of Service apply to all Customers who access or use our Services. You can contact us on 0333 050 7102 or by e-mail [email protected].
By using our service, you agree to be legally bound by these Terms of Service, Data Processing Agreement and Privacy Policy as they may be modified and posted on our Websites from time to time. In these Terms of Service, “you” refers to the entity you represent (“Customer”).
If you do not agree with these Terms of Service, Data Processing Agreement or Privacy Policy, you may not use the Service.
You may connect to the Service using an Internet browser supported by the Service. You are responsible for obtaining access to the Internet and any equipment necessary to use the Service.
Account
During onboarding at least one user will be nominated as a super administrator (“Super Administrator”), Customer contacts who have day to day responsibility for the Customer account.
Your account is only for use by either a single legal entity (e.g. a company or a partnership) or an individual user. You must provide the Customer legal full name, address, a valid email address, and any other information requested in order to complete the signup process. The Customer acknowledges that, if the Customer allows a third party to open an account on their behalf or designates any of the third party's personnel as Super Administrators of the Customer's account, the third party will be able to control account information, including Customer Data, and access to the Customer's account.
You may invite users to access your account (“Users”) by inviting them to register as a User. You confirm that all Users are 16 years old or older.
You shall not upload or enter any personal data, revealing:
(i) racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership;
(ii) data concerning health or sex life or sexual orientation; or
(iii) genetic data or biometric data, (“Sensitive Personal Data”) into the Service.
Term
Use of your account shall commence after signup and shall continue until terminated by either party in accordance with the provisions of these Terms of Service.
Relationship Between Customer, Users and Super Administrator
You are responsible for ensuring that all contact, email and name details used in connection with the Service are accurate and current during the term of this agreement. The Super Administrators control the day to day administration of the Customer account. The Super Administrators can cancel access to the Service, enable or disable third party integrations, manage permissions and export settings. These actions may result in changes to the access, use, disclosure, modification or deletion of certain or all Customer Data.
Invited Users may access the Service and submit content or information (“Customer Data”) subject to the provisions of these Terms of Service. You shall ensure that all Users comply with these Terms of Service and you shall be liable for any breaches of the Terms of Service caused by any acts or omissions of Users as if the Customer had carried out such acts or omissions itself.
Users are not permitted to share their username and password with any other person nor with multiple users on a network.
You are responsible for any and all activities that occur in your account. You will immediately notify us if you become aware of any unauthorised use of your account, passwords or any breach of security. Where a User misuses your Account you are responsible for taking any remedial action to protect your account. The Customer may request our help in providing audit activity to help ascertain any breaches. We shall act with reasonable care in providing audit assistance but shall have no liability for any loss or damage arising as a result of providing such audit assistance.
If a person proven to be acting on behalf of the Customer asks us to replace a Super Administrator we will only make the change:
i. if there is only one Super Administrator on the Account and,
ii. if we are lawfully obliged to do so i.e. by court order, or if requested by the Customer in circumstances where the Super Administrator cannot make the change i.e. in the event of their death, on us being provided with acceptable evidence of the Super Administrator’s inability to make the change.
Customer Data
You own all content and data you add to your account and you retain sole ownership of all rights, title and interest in, and to, your Customer Data. You have the sole responsibility for the legality, reliability, integrity, accuracy and quality of your Customer Data.
You grant us the perpetual right to use Customer Data in an anonymized format.
We have no responsibility for the way in which you choose to use your account to store or process your Customer Data. If you choose to use any third party integration and we become aware of excessive requests to your account via the API we reserve the right to suspend access to the API. We shall attempt to email you prior to suspension.
If Customer Data is being passed from, or to, the Service through an API, we will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted, or accessed by, third party products.
Fees Invoicing & Payment
The Customer agrees to provide us with a valid payment card or mandate to collect payment via direct debit and authorise us to deduct payments of the monthly fees as agreed with us. The payment card must be registered in the Customer’s name. Payment cards and payments are subject to validation and authorisation checks of the card issuer.
All fees are exclusive of all taxes, charges, levies, assessments and other fees of any kind imposed on use of the Service and such amounts shall be the responsibility of, and payable by, the Customer.
Suspension & Termination
Only the Customer can ask us to lock all access to your account for any reason.
We reserve the right to suspend access to your account if you fail to provide valid payment details that enable us to charge the full amount of any outstanding fees and charges due or you fail to pay us any sums owed for the Service for any reason. We will provide your Super Administrator(s) with prior notice by email of our intention to suspend your Customer account. If, within 60 days of suspending your Customer account, the amount of any outstanding fees and charges is not paid to us in full, your Customer account will be cancelled.
Termination & Cancellation
We may terminate these Terms of Service immediately by giving you written notice if you or a User commit any breach of these Terms of Service. We may terminate these Terms of Service for any other reason upon giving you 30 days written notice.
Termination of these Terms of Service for any reason shall not affect the accrued rights of the parties arising under these Terms of Service and all rights which by their nature should survive the expiry or termination of these Terms of Service shall remain in full force and effect.
You may cancel your account by giving us 30-days notice in writing, if you are within your initial contract period you will be billed for the remainder of the contract prior you your account being cancelled. Otherwise, your recurring billing schedule will be stopped upon cancellation.
When an account is terminated or cancelled, the account and any content left behind in the account will be made inaccessible. For a period of 14 days after any account has been cancelled you may request that we restore your account. After this period, your account and all Customer Data contained within it will be permanently deleted and the agreement between us as set out in these Terms of Service will automatically terminate. Please be aware that partial data may reside in our backup and/or archive systems for a period of up to 180 days.
Data Processing
Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
To the extent that personal data is processed by us on your behalf when you or Users use the Service, you acknowledge that we are a data processor and the Customer is a data controller. The terms of the Data Processing Agreement shall apply to all Customer Data that we process on your behalf.
Any information that you provide to us during signup or information provided when ordering the Service (such as the Customer’s email address) will be used by us in accordance with the terms of the Privacy Policy.
If a third party alleges infringement of its data protection rights, we shall be obliged to take measures necessary to prevent the infringement of a third party’s rights from continuing.
Availability & Support
We will endeavour to make the Websites and Service available to the Customer and Users 24 x 7 x 365, however we shall not be liable if for any reason the Websites or Service is unavailable at any time or for any period.
We may suspend access to your account temporarily and without notice in the case of system failure, maintenance or repair or due to a Force Majeure Event (defined below).
Technical support will only be provided for bugs or errors that are reproducible by us. You agree to provide us with full and accurate details of all bugs and errors, on request. You acknowledge that we provide no warranty that all or any bugs or errors will be corrected.
Neither our staff nor our third party service partners have access to any user passwords and are therefore unable to access the organization’s account via the website.
Intellectual Property Rights
All intellectual property rights and title to the Service and materials on the Websites, including without limitation photographs and graphical images (save to the extent they incorporate any Customer Data or third party owned item) shall remain owned by us and our licensors and no interest or ownership in the Service or Websites is transferred to the Customer. Nothing in these Terms of Service shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Service or Websites.
No part of the Websites or Service may be reproduced or stored in any other websites or included in any public or private electronic retrieval system or service without our prior written permission.
When using the Service, Customers are encouraged to provide us with their feedback, suggestions or ideas for changes to the Service (“Feedback”). The Customer assigns to us all rights, title and interest in any Feedback. If for any reason such assignment is ineffective, the Customer shall grant us a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such feedback without restriction.
We may take and maintain technical precautions to protect the Service and Websites from improper or unauthorised use, distribution or copying.
Acceptable Conduct
You are prohibited from posting or transmitting to or from the Websites and/or the Service any material:
(i) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience; or
(ii) for which you have not obtained all necessary licences, consents and/or approvals; or
(iii) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or
(iv) which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
You must not use the Websites or the Service:
(i) in any way that breaches any applicable local, national or international law or regulation;
(ii) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(iii) for the purpose of harming or attempting to harm minors in any way; or
(iv) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
We shall fully co-operate with any law enforcement authorities or court order requesting or directing us to disclose the identity or locate anyone posting any material in breach of the above rules on acceptable conduct.
Disclaimer & Customer Warranties
The material on the Websites and the Service is provided "as is", without any conditions, warranties or other terms of any kind. While we endeavour to ensure that the information provided on the Websites and the information provided in connection with the Service is correct, we do not warrant the accuracy and completeness of such material. We may make changes to the material on the Websites or to the Service, or to the products and prices described on the Websites, at any time without notice. The material on the Websites may be out of date, and we make no commitment to update such material.
We may share information about our future product plans with you from time to time. Please note that any public statement about our product plans is an expression of intent and should not be relied upon when purchasing the Service.
You warrant and represent that:
(i) you have authority to enter into this agreement and to perform your obligations under these Terms of Service;
(ii) the execution and performance of your obligations under these Terms of Service does not violate or conflict with the terms of any other agreement to which you are a party and is in accordance with any applicable laws;
(iii) you shall respect all applicable laws and regulations, governmental orders and court orders, which relate to use of the Service, or Websites, and these Terms of Service; and
(iv) you rightfully own the necessary user rights, copyrights and ancillary copyrights and permits required for you to fulfil your obligations under these Terms of Service.
Except as expressly stated in these Terms of Service, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Service or Websites or that the functionality of the Service or Websites will meet your requirements or that the Service or Websites will operate uninterrupted or error free.
Limitation of Liability
We do not exclude or limit our liability to you for fraud, death or personal injury caused by any negligent act, omission or wilful misconduct by us in connection with the provision of the Websites or Service, or any liability which cannot be excluded or limited under applicable law.
In no event shall we be liable to you whether arising under these Terms of Service or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any indirect or consequential loss or damage which shall include but not be limited to pure economic loss, losses incurred by any client of yours or other third party, loss of profits (whether categorised as direct or indirect loss), losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, wasted management or staff time, loss or corruption of data, or inability to use or the results of use of the Websites or Service, any websites linked to the Websites or the material on such websites.
You acknowledge and agree our total liability to you (whether in contract, tort or otherwise) under or in connection with the provision of the Websites or Service under these Terms of Service including any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total amount (excluding any VAT, duty, sales or similar taxes) paid by you to us during the preceding twelve (12) month period.
The Customer shall defend, indemnify and hold us and our employees, sub-contractors or agents harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from:
(i) any claimed infringement by the Customer, User or third party of any intellectual property rights with respect to use of the Websites or Service outside of the scope of these Terms of Service; or
(ii) use by us of any Customer Data or Customer or User provided item; or
(iii) any access to or use of the Websites or Service by a User, Client or a third party in breach of these Terms of Service; or
(iv) breaches of data protection law or regulations resulting from the us processing data on behalf of and in accordance with the instructions of the Customer or User.
Confidentiality
Each party may use the confidential information of the other party only for the purposes of these Terms of Service and must keep confidential all confidential information of the other party except to the extent (if any) the recipient of any confidential information is required by law to disclose the confidential information.
Each party may disclose the confidential information of the other party to those of its employees and agents who have a need to know the confidential information for the purposes of these Terms of Service but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
The obligations of confidentiality under these Terms of Service do not extend to information that:
(i) was rightfully in the possession of the receiving party before the commencement of these Terms of Service;
(ii) is or becomes public knowledge (otherwise than as a result of a breach of these Terms of Service; or
(iii) is required by law to be disclosed.
Assignment
You may not transfer, assign, charge or otherwise dispose of these Terms of Service or any of your rights or obligations arising hereunder, without our prior written consent.
We may transfer, assign, charge, sub-contract or otherwise dispose of these Terms of Service, or any of our rights or obligations arising hereunder, at any time.
Relationship Between the Parties
The parties are independent contractors and nothing in these Terms of Service will be construed as creating an employer-employee relationship between us.
Communicating Between Us
All notices from you must be given to us by email at [email protected] or by recorded delivery to 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ, United Kingdom. Unless explicitly stated otherwise in these Terms of Service we shall give all notices to you by email to the email address of the Super Administrator. Notices shall be deemed received and properly served 24 hours after an e-mail is sent, or for postal letters on receipt.
Changes
We maintain the right to change these Terms of Service, the Data Processing Agreement or Privacy Policy at any time, at our sole discretion upon giving you reasonable notice of any material change. Any changes will become effective on the date stated in such notice. If you or any User accesses or uses the Service after the date stated in any notice, this will constitute the Customer’s acceptance of any changes. If you do not accept the changes you should cancel your account before the date stated in the notice and stop using the Service.
New features in the Service, including new tools and resources, will be subject to these Terms of Service.
Force Majeure
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations caused by events outside our reasonable control (a “Force Majeure Event”).
A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes but is not limited to:
(i) strikes, lock-outs or other industrial action;
(ii) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(iv) impossibility of the use of public or private telecommunications networks;
(v) the acts, decrees, legislation, regulations or restrictions of any government.
Our performance of our obligations shall be deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to an end or to find a solution by which our obligations under these Terms of Service may be performed despite the Force Majeure Event.
Miscellaneous
Should a provision of these Terms of Service be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
These Terms of Service, together with all documents referred to in them constitute the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
Nothing contained in these Terms of Service is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 or any other similar law in any jurisdiction.
Governing Law & Jurisdiction
These Terms of Service shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under these Terms of Service.