Delivery Mates Terms of Service
These terms are the web-based software content licence agreement (“Agreement”) by which OTL Omega Telematics and Logistics Ltd, a company registered in England with company number 08426945 (“Delivery Mates”) has agreed to grant a licence to use their Application (as defined below) to the person or company (the “Customer”) particularised in the order (“Order”) for the Application completed by the Customer online as set out in and subject to the terms and conditions of this Agreement.
By clicking to accept an Order for the Application and by using the Application or any services of OTL Omega Telematics and Logistics Ltd (“Delivery Mates“), the Customer confirms that has read, understood and accepts the following Agreement, which will be legally binding on the Customer.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS THE APPLICATION TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT.
1.1. In this Agreement, unless the context otherwise requires:
1.1.2. ‘Business Day’ means a day on which the banks are open for normal trading in London, UK;
1.1.2. ‘Confidential Information’ means all business, technical, financial or other information created or exchanged between the parties;
1.1.3. ‘Application’ means the web-based final mile logistics management software, the driver app and all written data and other copyright works in which Delivery Mates owns the copyright or which Delivery Mates has a right to publish;
1.1.4. ‘Trademarks’ means the trademarks, names and logos of Delivery Mates;
1.1.5. ‘Contract Managers’ means, in the case of Delivery Mates, the Managing Director, and, in the case of the Customer, the person nominated and notified to Delivery Mates for the purpose in the Order or otherwise;
1.1.6. Intellectual Property Rights’ means patents, rights in the design, trademarks copyright (including any such rights in typographical arrangements, websites, software or database rights) know-how, confidential information whether registered or not anywhere in the world;
1.1.7. ‘Price Plan’ means the price plan (Per driver user, Transaction-Based or Enterprise license) indicated in the Order setting out the Monthly Fees, Usage Limits (if any) and any other features, information or detail relating to the relevant licence purchased by the Customer under this Agreement and which will be incorporated into the terms of this Agreement;
1.1.8. ‘Account’ means the entity through which the Customer’s data and access to the Application are managed.
1.1.9. ‘Website’ means pages or a related group of pages linked together using the hypertext transfer protocol (‘http’ or ‘https’);
1.1.10. ‘Monthly Fees’ means together with the standard monthly fees payable under the relevant Price Plan indicated in the Order by the Customer to Delivery Mates for the licence of the Application;
1.1.11. ‘Data Limit’ means the limit to the volume of data allowed to be stored by the Customer on the Application (if any) as set out in the relevant Price Plan;
1.1.12. ‘User Limit’ means the maximum number of users allowed to use the Application (if any) as set out in the relevant Price Plan;
1.1.13. ‘Usage Limits’ mean together with the Data Limit and the User Limit or any of them (if any).
1.2. Reference to a party is reference to a party to this agreement and includes his permitted assignees.
1.3. Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.4. Reference to clauses or paragraphs is to clauses or paragraphs of this agreement.
2.1. In consideration of payment by the Customer to Delivery Mates of the Monthly Fees as per the relevant Price Plan in accordance with clause 7 below, Delivery Mates hereby grants the Customer a non-exclusive, right and licence (with no right to sub-license) subject to the Usage Limits (if any) set out in the relevant Price Plan:
2.1.1 to access Delivery Mates’s server or servers and to use the Application;
2.1.2 to store its own data in the Application; and
2.1.3. to use, display, communicate and transmit its own data stored in the Application or such data as Delivery Mates shall provide solely for the purposes of processing deliveries, collections or otherwise in connection with its business; and
2.1.4. to use the Trade Marks solely for the same purposes provided that the Customer ensures they are displayed in accordance with any reasonable guidelines issued by Delivery Mates from time to time, the goodwill relating to any such use accruing to and vesting in Delivery Mates.
2.2. For the avoidance of doubt, Delivery Mates reserves all rights to publish the Application itself and to license third parties to publish the Application.
3. Customer’s Obligations
3.1. The Customer shall display such copyright notices as Delivery Mates reasonably directs immediately adjacent to the Application.
3.2. The Customer, if required, will make itself available for an attributed case study to be carried out by Delivery Mates or an entity appointed by or acting on behalf of Delivery Mates, for the purposes of marketing, promotion of Delivery Mates and the Applications, the content of which can be published worldwide, on the internet and in printed media.
4.1. Delivery Mates shall use its reasonable endeavours to supply the Applications to the Customer and maintain the continued availability of the Applications, in accordance with this agreement.
5.1. Delivery Mates warrants that:
5.1.1. the Application complies with all statutory and regulatory requirements in the United Kingdom and United States of America and is not under the laws of the United Kingdom or the United States of America obscene, blasphemous or defamatory or an infringement of any intellectual property rights of any third party; and
5.1.2. it either owns or is licensed to grant the Customer a licence of the Application and the Trade Marks as provided in this Agreement.
5.2. Delivery Mates shall use all reasonable commercial endeavours to ensure the efficiency of the Application and calculations performed by it but gives no warranties and makes no representations express or implied, statutory or otherwise regarding the accuracy, quality or completeness of the Application, any of the processes or calculations performed by it or any of Delivery Mates’s data stored on it or its fitness for any purpose and Delivery Mates excludes any liability relating to it.
5.3. The Customer warrants that its entry into this Agreement does not breach any other agreement to which it is a party and that it will comply with all its obligations with respect to use of the Application under the licence granted to it under this Agreement and only use the Application within the Usage Limits (if any) stipulated in the relevant Price Plan.
5.4. Notwithstanding any other provision of it, this Agreement does not exclude any warranties or other statutory rights that cannot be excluded under applicable local law.
6.1. In consideration of the rights and licences granted under this Agreement, the Customer shall pay Delivery Mates the following amounts: at the end of each calendar month of this Agreement, the Monthly Fees as set out in the relevant Price Plan, such amount to be paid within 7 Business Days of the end of each calendar month.
6.2. All sums payable under this Agreement shall be payable in either British Pounds (GBP), United States Dollars (USD) or Euros (EUR) and are exclusive of VAT or other taxes or duties, which if payable shall be payable by the Customer.
6.3. Delivery Mates reserves the right to charge the Customer interest in respect of late payment of any sum due under this Agreement at a rate of interest of 8% above the base rate of the Bank of England from time to time, accruing on a daily basis.
6.4. In addition to its right to charge interest under clause 6.3, in the event of late payment by the Customer, Delivery Mates reserves the right to terminate the Customer’s access to the Application until such time as all outstanding sums are received.
7.1. The Customer acknowledges and agrees that the Usage Limits (if any) apply to his use of the Application during each calendar month and that Delivery Mates reserves the right to charge additional fees for usage of the Application that exceeds the Usage Limits.
8. Statements and Records
8.1. The Customer shall keep accurate records at its place of business recording and evidencing all usage of the Application and shall permit Delivery Mates to inspect them on reasonable notice during any Business Day to verify the Customer’s compliance with this Agreement.
9. Intellectual Property Rights
9.1. The Customer acknowledges and agrees that all Intellectual Property Rights in the Application and the Trademarks vest and shall always remain vested in Delivery Mates or its respective licensors and that the Customer has no right, title or interest in or to such Intellectual Property Rights other than as expressly licensed in this Agreement.
10. Use of the Application
10.1. The Customer undertakes:
10.1.1. that it will not do anything in relation to the Application, including using it with any other material or advertisement, that might diminish the value of the Application or the Trade Marks or the reputation of Delivery Mates, and will not do anything that may breach any law or regulation including anything that is libellous, obscene or defamatory or that infringes the rights of any third party;
10.1.2. that it will notify Delivery Mates as soon as is reasonably practicable if he believes or has reason to believe that the Application contains any errors or is incomplete and will provide Delivery Mates with all reasonable information to assist Delivery Mates to rectify the Application as soon as is reasonably practicable; and
10.1.3. that it will not alter or modify the Application in any way and will ensure that no person does so.
10.2. The Customer acknowledges and agrees that Delivery Mates may cease to supply any of the Application to the Customer in Delivery Mates’s absolute discretion if the Customer is in breach of any of the terms of this clause.
10.3. If, after granting access to the Application, Delivery Mates deems the Application inaccurate or unsuitable, Delivery Mates reserves the right to refuse the Customer access to the Application, and if appropriate, remove items stored on the Customers computer arising from use of the Application and shall give the Customer verbal (and subsequent e-mail) notification of the requirement. The Customer shall act on the verbal notification.
11.1. Notwithstanding any other provision in this Agreement, Delivery Mates’s liability to the Customer for death or injury resulting from his own negligence or that of his employees, agents or sub-contractors shall not be limited.
11.2. Subject to clause 12.1, Delivery Mates’s entire liability to the Customer in respect of any breach of his contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to a sum equal to the Monthly Fees paid by the Customer to Delivery Mates as at the date of any alleged breach or incident giving rise to such a claim.
11.3. Delivery Mates shall not be liable to the Customer for any indirect or consequential loss (including loss of profits) the Customer may suffer even if the loss is reasonably foreseeable or Delivery Mates has been advised of the possibility of the Customer incurring it.
11.4. Notwithstanding any other provision in this Agreement, Delivery Mates does not purport to exclude any statutory rights that may not be excluded under applicable local law.
12.1. The Customer shall indemnify and hold Delivery Mates harmless from and against any and all liabilities, losses, damages, costs and expenses in relation to any claims or actions brought against Delivery Mates (including, any claim in contract, tort or for defamation, obscenity or breach of privacy) based on any breach by the Customer of the terms of this Agreement.
13.1. During the term of this Agreement and after termination or expiry of this Agreement for any reason for a period of 12 months, the following obligations shall apply to the party disclosing Confidential Information (‘Disclosing Party’) to the other party (‘Receiving Party’).
13.2. Subject to clause 13.3, the Receiving Party
13.2.1. may not use any Confidential Information for any purpose other than the performance of his obligations under this Agreement;
13.2.2.may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and
13.2.3.shall make every effort to prevent use or disclosure of the Confidential Information.
13.3. The obligations of confidence referred to above shall not apply to any information that:
13.3.1. is in the possession of and free disposal of the Receiving Party or is published or is otherwise in the public domain prior to the receipt of it by the Receiving Party;
13.3.2. is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
13.3.3. is required to be disclosed by any applicable law or regulation; or
13.3.4. is received in good faith by the recipient party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other party to this Agreement in respect of it and who imposes no obligations of confidence upon the Receiving Party.
13.4. Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled.
13.5. The obligations of the parties under all provisions of this clause shall survive the expiry or the termination of this agreement for whatever reason.
14.1. This Agreement shall remain in effect until terminated by the Customer or Delivery Mates.
15. Cancellation and Termination
15.1. The Customer may initiate the cancellation of their Account, at any time, online through the Delivery Mates website. Cancellation before the end of the current fully paid billing period will take effect at the end of that billing period, at which point this Agreement will be terminated. After the termination takes effect:
15.2. The Customer shall give three months notice to terminate an enterprise contract of 12, 24 or 36 months
15.2.1.The Customer will no longer have access to use the Application or the Customer’s data; and
15.2.2 Delivery Mates will destroy all of the Customer’s data stored within the Application, after which point it cannot be recovered.
15.3. Delivery Mates, in its sole discretion, has the right to terminate this Agreement, or cancel or suspend the Customer’s access to the Application, for any reason, at any time.
15.4. An act or omission by a person who controls is under common control with, or is controlled by a party that would be a breach of this Agreement on his part if it were an act or omission of the party shall be deemed to be a breach of this Agreement by the party.
15.5. Termination of this Agreement, or cancellation of an Account, for whatever reason, shall not affect either
15.5.1.the accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination and in particular but without limitation the right to recover damages against the other; or
15.5.2. provisions that are expressed to survive this Agreement, which shall remain in full force and effect.
16. Effect of Termination
16.1. On termination of this Agreement for any reason, all rights and licences granted under it shall automatically terminate and the Customer shall immediately cease all use of the Application and the Trade Marks, remove any reference to them from the Customer’s premises and destroy all copies and expunge them from any databases in its possession or control.
16.2. Termination of this Agreement shall not prejudice or affect any right of action or remedy that has accrued or will thereafter accrue to either party. For the avoidance of doubt, no money paid by the Customer to Delivery Mates before the date of any termination shall be refundable.
17.1. A waiver of any term, provision or condition of this Agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which it is given.
17.2. If any provision of this Agreement is or becomes invalid, void, illegal or unenforceable in any respect under the law of any jurisdiction, whether pursuant to any judgment or otherwise, the remaining provisions of this Agreement will not be affected.
17.3. This Agreement embodies and sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written agreements or understandings relating to the subject matter of this Agreement. Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
17.4. Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute, the parties a partnership, association, joint venture, the agents of each other or any other co-operative entity.
17.5. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no person other than the parties to this Agreement shall have any rights under it, nor shall it be enforceable under that Act by any person other than the parties to it.
18.1. Any notice, demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be in writing and shall be delivered personally, by e-mail or prepaid first class post to the parties at the relevant contact details provided by either party for this purpose or as may otherwise from time to time be notified by a party to the other and shall be deemed to have been duly given on delivery if by hand, immediately on completion of transmission if given by e-mail and five Business Days after the date of posting if sent by pre-paid first-class post/ airmail.
19. Governing Law and Jurisdiction
19.1. This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts