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1link Supplier Terms and Conditions
These terms and conditions apply to all services on the 1link Service Network site found at www.1link.ie
1. Interpretation
In this contract unless the context otherwise requires:
“Alternative System" means any platform, system or method, electronic or otherwise, for the provision of SMR transaction processing services other than the Service. For the avoidance of doubt, this includes in-house systems proprietary to a Customer;
“Commencement Date” means the day on which the Contract is signed by the Customer or the date upon which the Customer registers on-line;
“Company” means epyx Limited;
“Contract” means the agreement between the Company and the Customer incorporating these conditions, any registration form completed online or offline and the Fees charged;
“Customer” means the organisation the Company makes this Contract with. It includes any registered user created on the Service by the Customer along with any person who the Company reasonably believes is acting with the Customer’s authority or knowledge;
“Fees” means the Registration Fees and the Platform Fees;
“Information” means the visual, textual or other information published or otherwise made available (directly or indirectly) on the Internet via the Service;
“Intellectual Property Rights” means all the interests and rights of any nature whatsoever to and in any intellectual property, whether such rights and interests exist at the time of this Contract or come into existence afterwards, including without limitation: copyright (including copyright in software), database rights, designs, inventions, know-how, confidential information and any application for and registrations of them and the right to apply for any form of protection for any of these things and rights in every part of the world;
“Internet” means the global data network comprising interconnected networks using TCP/IP (“Transmission Control Protocol/Internet Protocol”);
“Invoice Record” means, in relation to a Transaction, details including the Customer name, address and VAT Registration Number, the relevant Subscriber’s name and address details and the associated work content;
“Party” means either the Company or the Customer, together the “Parties”;
“Platform Fees” means the fees payable, as defined in clause 23, by the Customer to the Company including any additional fees as may be agreed in writing between the Company and the Customer;
“Registration Fees” means the fees payable, as defined in clause 23, by the Customer to the Company including any additional fees as may be agreed in writing between the Company and the Customer;
“Service” means the electronic trading platform on website www.1link.ie relating to the automated vehicle and plant service maintenance and repair (“Service Network”) solution and any other optional services;
“Service Documentation” means all documentation supplied by the Company in connection with the provision of the Service either in electronic or written form;
“Software” means the program(s) which will be made available by the Company to the Customer for use by the Customer to gain access to the Service;
“Subscriber” means a person or organisation licensed by the Company to use the Service under a contract;
“System Notifications Area” means an area within the Service where updates and notifications from the Company are transmitted and available;
“Third Party Systems” means any software program(s) used in or incorporated into the Software or the provision of the Service which is not owned by the Company;
“Transaction” means any event where the Customer creates, receives or transmits a record via the Service to or from another Subscriber in relation to the booking, authorising, invoicing, or raising of a credit note related to work carried out or to be carried out and which will result in a Platform Fee as detailed in clause 23.
1.1 This Contract sets out the entire agreement between the Customer and the Company for the provision of the Service.
1.2 Any gender includes all genders and references to the singular shall include reference to the plural and vice versa.
1.3 Reference to either party shall include a reference to that party’s employees, agents and sub-contractors.
2 Provision of a Licence to use the Service
2.1 The Company reserve the right to refuse the Customer provision of the Service.
2.2 Subject to 2.1 the Company agrees to provide the Customer with a licence (the “Licence”) to use the Service, on a non-exclusive basis and on the terms and conditions of this Contract, and only in the Republic of Ireland.
2.3 This Contract does not include the provision of telecommunication services necessary for connection to the Service. The Customer is responsible for arranging the appropriate telecommunications service and suitable hardware or communications equipment necessary to enable access to the Service.
3 Terms of Licence
3.1 The Customer must not transfer, assign or sub-licence the right to use the Software or Service or attempt to do so.
3.2 The Licence may not be transferred or assigned without the prior written agreement from the Company.
3.3 The Service must not be used:
3.3.1 fraudulently or in connection with a criminal offence;
3.3.2 to send, receive, upload, download, use or re-use any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
3.3.3 to cause annoyance, inconvenience or needless anxiety whether to the Company, any other Subscriber or any other person by any means including using the Service for persistently sending requests for information without a corresponding level of transaction or failing to monitor and respond to communications;
3.3.4 to send unsolicited advertising or promotional material;
3.3.5 other than in accordance with the acceptable use policies of any connected networks;
3.3.6 in a way, whether knowingly or otherwise, which would impair the operation of the Service or put it in jeopardy.
3.4 All Intellectual Property Rights in the Software and Service Documentation remains the property of the Company or its licensors.
3.5 Without written consent and without affecting any applicable statutory rights under the Copyright, Designs and Patents Act 1988 (as amended by the Copyright (Computer Program) Regulation 1992) the Customer must not and must not permit any other person to:
3.5.1 disassemble, reverse engineer, decompile or in any other way interfere with the Software;
3.5.2 modify the Software;
3.5.3 copy, reproduce, download or make the Software available online;
3.5.4 create any new software partly or wholly based on the Software or otherwise commercially exploit the Software for any purpose.
3.6 The Customer must tell the Company immediately if any third party makes or threatens to make any claim or issue legal proceedings against the Customer or the Company relating to use of the Service and the Customer will, upon request, immediately stop the act or acts complained of. If the Company ask the Customer to, details of the claim(s) must be made in writing.
3.7 The Customer’s use of the Service to respond to other Subscribers is solely at the Customer's risk. If the Customer uses the Service any contract resulting from an order made with another Subscriber deriving from Information obtained via the Service will be a binding contract with the appropriate Subscriber and not with the Company. It will be subject to such conditions as the Customer and that Subscriber agree. The Company does not monitor the content of Subscribers terms and conditions or their websites and any links to third party websites provided via the Service are provided for convenience only.
3.8 Where any Registration Fee and or Transaction Fee is paid on behalf of the Customer, by a manufacturer, importer, dealer group, central office or other centralised management function, or where the Customer is registered to a manufacturer menu-pricing programme supported on the Service, the Customer acknowledges that such central organisation acts as agent of the Customer and the Customer agrees that the relevant central organisation will be entitled to receive or access Information or data in respect of Transactions conducted through the Service by the Customer and other relevant Subscribers. Where for any reason the manufacturer, importer, dealer group, central office or other centralised management function fails to pay any Fee the Customer hereby agrees that they shall remain liable for the payment of such Fees in this instance.
3.9 The Customer agrees that the Company may provide links to external approved sites and services via the Service and the Customer acknowledges that use of such sites or services by the Customer may be subject to separate terms and conditions.
4 The Company Obligations
4.1 The Company warrants that use of the Software and Services will not infringe any third party rights.
4.2 The Company will take reasonable steps to ensure that the Software is free of any viruses, malware or unauthorised programming devices that might, or might be used to, access, modify, delete, damage, deactivate or disable the Service or data held within the Service, but the Company recommends that the Customer uses their own software to protect against such threats.
4.3 The Company will take reasonable steps to ensure that the Service is continuous and that no interruption in access to the Service relating to an event within the control of the Company is longer than 90 minutes.
4.4 The Company gives no guarantee that the Software and/or the Service will never be faulty but the Company agrees to use all reasonable endeavours to correct reported faults as soon as the Company reasonably can. Faults should be reported by telephone, electronic mail or in writing to the Customer Service Helpdesk details of which can be found at the Help section of the Service.
4.5 The Customer acknowledges that the Company may vary the technical specification of the Service from time to time and make updates or modifications to the Software.
4.6 In supplying the Services, the Company shall:
a) ensure it obtains all statutory and regulatory consents, licences and permissions it may require and which are necessary to enable it to comply with its obligations in the Contract
b) comply with:
I. all applicable laws, statutes, regulations and codes from time to time in force; and
II. not knowingly do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business;
III. notify the Customer in writing immediately upon the occurrence of a change of Control of the Company;
4.7 The Company warrants that all necessary licences and consents (including those from any third party licensors) have been obtained and that the Company will comply with all legislation, legally binding instructions or guidelines issued by regulatory authorities, relevant licensors and any other legally binding codes of practice which relate to Information or are applicable or relevant to the Customer’s business.
4.8 The Company agrees to indemnify the Customer and keep the Customer indemnified fully and effectively against all actions, proceedings, claims, demand, damages and costs (including legal costs on a full indemnity basis) incurred as a result of any breach of the warranties set out in paragraph 4.1.
5 Suspension
5.1 The Customer acknowledges that the Company may temporarily suspend the Service;
5.1.1 for contravention by the Customer of paragraphs 3, 6, 7, 8 and 10 and in such instance the Company will not restore the Service until the Company receive an adequate assurance from the Customer that there will be no further contravention;
5.1.2 for operational reasons, in which instance the Company will give the Customer as much notice as is reasonably practical and shall use reasonable endeavours to restore the Service as soon as reasonably practical.
6 The Customer Obligations
6.1 The Customer warrants that all necessary licences and consents (including those from any third party licensors) have been obtained and that the Customer will comply with all legislation, legally binding instructions or guidelines issued by regulatory authorities, relevant licensors and any other legally binding codes of practice which relate to Information or are applicable or relevant to the Customer’s business.
6.2 The Customer is expressly responsible for the creation, maintenance, design and configuration of all Information or other data the Customer transmits via the Service and the Customer must ensure that any appropriate approvals or authorities to use such data or information have been obtained where necessary. The Customer must also ensure that all contact details are included in a clear and legible form sufficient for receipt of any enquiries or complaints regarding Information and any other material which the Customer transmits via the Service.
6.3 The Customer agrees to notify the Company immediately of any changes to the information that is provided when registering to the Service and the Customer warrants that all information supplied at the time of registration to the Service and any changes notified to those details will be true, complete and accurate in all respects.
6.4 The Customer agrees to use best endeavours to respond to all booking requests, authorisation requests or requests for information received via the Service within the agreed service level standard times described for the Service. Where it is necessary for the Company to contact the Customer due to any delay in response the Customer hereby agrees that the Company may levy a charge to the account of the Customer by way of recovering any costs incurred in such contact.
6.5 The Customer expressly agrees that access to Subscriber data is provided for the purpose of effecting Transactions through the Service and cannot be used by the Customer for any purposes other than for proper use of the Service or for testing any Alternative System, as may be requested by a Subscriber.
6.6 The Customer agrees, subject to the Service being made available by the Company, that where they trade with another Subscriber in respect of an activity which can be the subject of a Transaction, and that Subscriber has not either (i) requested the Transaction be processed via an Alternative System, or (ii) initiated the Transaction via such Alternative System, then all such activity will be processed via the Service as Transactions.
6.7 The Customer agrees that they will not levy any increase in charges for any products or services supplied to any other Subscriber as a result of such products or services being transacted through the Service.
6.8 The Customer agrees that the Company may distribute any information related to the Service or any associated optional services or associated sales information to the Customer in the form of written or electronic communication, and the Customer further agrees to keep their contact details up to date within the Service in order to receive such communications.
6.9 The Customer agrees that where any customer satisfaction survey data is collated in relation to the use of the Service, such data may be displayed to other third parties as indicators of service performance of the Customer, and that any such views are views of individuals subject to services provided by the Customer, and in no way reflect or represent the views of the Company.
6.10 The Customer acknowledges and agrees that where they access and utilise any external approved site pursuant to clause 3.9 (the “External Site”), and elect to utilise their existing account within the Service to facilitate payment or collection in relation to transactions processed via the External Site, the Customer’s account held within the Service may then be used to facilitate the payment of any and all fees due to the Company or any third party supplier in respect of such External Site use.
7 Fees
7.1 Registration Fees are payable in advance, the first payment being due prior to the provision of the Service or optional service and thereafter as detailed in clause 23 for the continuance of the Contract. The Customer authorises the Company to charge the Registration Fees to their defined account or pre-payment account.
7.2 The Customer acknowledges and agrees that unless the specific terms of registration allow otherwise, Registration Fees reflect the Customer’s use of the Service to process Transactions in relation to work being undertaken at a single physical location, and that the Company reserves the right to apply additional fees where the Customer accesses the Service on behalf of multiple sites, whether mobile sites or otherwise, unless such sites are registered to the Service by the Customer.
7.3 Platform Fees are payable in advance through the use of a pre-payment account incorporated within the Service. The Customer hereby authorises the Company to deduct the appropriate Platform Fees as detailed in clause 23 from this pre-payment account.
7.4 When the balance of the pre-payment account is insufficient to process any Fee, this pre-payment account will be automatically “topped up” by an amount selected by the Customer from the range of top up pricing available on the Service. If the Customer has not specified an amount, the Company will use the lowest value then available on the Service.
7.5 All Fees are exclusive of Value Added Tax which the Customer must also pay and under no circumstances shall any advance payments be refundable.
7.6 The Company reserves the right on giving the Customer 7 days notice to vary any of the Fees for the Service at any time such variations to take effect no earlier than on the expiry of the said 7 day notice period.
7.7 The Customer acknowledges that the Company has the right to instigate normal credit checks if the Company, in its sole discretion, deems this to be appropriate and to disclose details and this Contact to a credit reference agency for the purpose of assisting with credit decisions and fraud prevention.
7.8 If the payee account holder refuses to make a payment, the Company may charge the Customer for the bank charges and extra administration costs the Company may incur.
7.9 The Customer acknowledges that where the Company provides optional services and where any such optional service attracts additional Platform Fee(s) or Registration Fee(s), such additional Platform Fee(s) or Registration Fee(s) may be charged to the Customer’s pre-payment account.
8 Invoicing and Payment
8.1 The Customer expressly confirms that they are registered for Value Added Tax (“VAT”) in the Republic of Ireland and that the VAT registration number provided on-line or off-line on the registration form is correct. The Customer will notify the Company immediately if the VAT registration is cancelled or a new VAT Registration Number is issued.
8.2 The Customer acknowledges that they may, via the Service, raise Invoice Records in respect of completed Transactions. Such Invoice Records will identify the Customer, including the Customer VAT Registration Number, and will contain details of the appropriate Transaction to which it relates as well as pertinent details relating to the relevant Subscriber, in order for an online invoice to be created from which payment will be effected.
8.3 The Service enables the Customer at any time to access and download copies of relevant details concerning current and recently completed Transactions created via the Service (together with copies of all relevant Invoice Records).
8.4 It is the responsibility of the Customer to maintain a full and accurate account of all transactions transmitted via the Service together with detailed accounting records including all supporting invoices.
8.5 In providing an obligation under this Condition 8. the Company has a duty to the Customer to exercise reasonable skill and care but the Company shall not be liable in contract, tort or otherwise for any loss or damage of data in respect of Transactions or Invoice Records in so far as the loss or damage occurs or is caused by:
8.5.1 any incorrect use by the Customer or their employees, contractors or agents of the Service or Software or operator error;
8.5.2 any act, omission, default or error by the Customer or their payee account holder, or on their behalf or their payee’s account holder’s behalf or by a third party;
8.5.3 any faults or defects in or acts or omissions of any provider of the internet or national or other telecommunication systems; or
8.5.4 any fault or defect which is beyond the control of the Company.
8.6 It is the responsibility of the Customer to resolve any disputes in respect to Transactions or Invoice Records with the relevant Subscriber although the Company shall, on request, and at the Customer’s cost, provide such information from the Service as may be relevant in attempting to settle any dispute.
9 Security
9.1 In order to access the Service the Customer will be issued with a set of access credentials. The Customer is responsible for the security and proper use of all such access credentials relating to the Service and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to other people. The Company may periodically require the Customer to change the access credentials and shall notify the Customer accordingly.
9.2 If the Customer forgets any access credentials, the Customer must contact the Customer Support Centre by telephoning the Help Desk number shown in clause 22 and upon satisfaction of such security checks as the Company may determine, the Customer will be given new access credentials to enable use of the Service.
9.3 The Customer must inform the Company immediately if there is any reason to believe that any access credentials have become known to someone not authorised to use them or if any access credentials are being or are likely to be used in an unauthorised way.
9.4 The issue and control of access credentials relating to use of the Service by employees or agents of the Customer is solely the responsibility of the Customer.
10 Data Protection
10.1 In this clause 10 the following expressions shall, unless the context otherwise requires, have the meanings given below:
Categories of Data Subject has the meaning as set out in the Data Protection Appendix;
Customer Default means any act or omission of the Customer or of the Customer's Personnel which directly or indirectly results in a breach of the duties and obligations imposed on the Customer under this clause 10 including any breach of Data Protection Legislation or of the Company's reasonable instructions;
Customer's Personnel means all employees, staff, other workers, agents and consultants of the Customer and of any Sub-Suppliers who are employed or engaged or who were at any time employed or engaged in the provision of the services or a relevant part of the services from time to time;
Data Controller has the meaning given in the Data Protection Legislation;
Data Processor has the meaning given in the Data Protection Legislation;
Data Protection Appendix means the data protection appendix which forms part of the Contract;
Data Protection Legislation, means GDPR and the Privacy and Electronic Communication Regulations 2003, any amendment, consolidation or re enactment thereof, any legislation of equivalent purpose or effect enacted in the United Kingdom, or, where relevant, the European Union, and any orders and binding guidelines and instructions issued under any of the above by relevant national authorities, a judicial authority in England and Wales or, where relevant, a European Union judicial authority;
Data Subjects has the meaning given in the Data Protection Legislation and for the purposes of the Contract shall include the Categories of Data Subject;
Duration of Processing has the meaning as set out in the Data Protection Appendix;
EEA means the European Economic Area;
GDPR means the General Data Protection Regulation (EU) 2016/679 as in force from time to time;
Nature of Processing has the meaning as set out in the Data Protection Appendix;
Personal Data has the meaning given in the Data Protection Legislation and for the purposes of the Contract shall include the Types of Personal Data;
Purpose of Processing has the meaning as set out in the Data Protection Appendix;
Services means any services provided by the Customer to another Subscriber via the Service;
Sub-Processing Contract any contract between the Customer and a third party pursuant to which the Customer agrees to sub-contract any element of the services which include any processing;
Sub-Supplier means Customer's Personnel and any third party with whom the Customer enters into a Sub-Processing Contract (and its servants or agents), and any sub-contractors of such third party (and its servants and agents);
Subject Matter of Processing has the meaning as set out in the Data Protection Appendix; and
Types of Personal Data has the meaning as set out in the Data Protection Appendix.
10.2 Except as set out on in clauses 10.3 and 10.26, to the extent that the provision of the services involves the processing of the Personal Data by the Customer acting as a sub-processor of the Company (who is acting as a Data Processor on behalf of a Subscriber which is a Data Controller), the parties have agreed to enter into the terms and conditions of this clause 10 for the purposes of ensuring compliance with the Data Protection Legislation.
10.3 In respect of Personal Data which comprises details of users, employees, agents and workers appointed by any relevant Subscriber who uses the services, the Company is acting as a Data Controller and the Customer is acting as a Data Processor. The parties have agreed to enter into the terms and conditions of this clause 10 for the purposes of ensuring compliance with the Data Protection Legislation.
10.4 In relation to the Personal Data, the Customer will comply with:
(a) all applicable provisions or aspects of the Data Protection Legislation;
(b) the Contract including the terms and conditions of this clause 10; and
(c) the Company's reasonable written instructions from time to time.
10.5 To the extent that the provision of the services involves the processing of the Personal Data by the Customer acting as a sub-processor of the Company (who is acting as a Data Processor on behalf of a Subscriber which is Data Controller) or as Data Processor, then for the purposes of the Data Protection Legislation the Customer and the Company agree that:
(a) the subject matter of the processing is the Subject Matter of Processing;
(b) the nature of the processing is the Nature of Processing;
(c) the purpose of the processing by the Customer is the Purpose of Processing;
(d) the duration of the processing is the Duration of Processing;
(e) the type(s) of Personal Data to be processed are the Types of Personal Data; and
(f) the categories of Data Subject are the Categories of Data Subject.
10.6 The Customer undertakes and warrants that:
(a) it shall process the Personal Data solely on behalf of the Company and the relevant Data Controller of the Personal Data;
(b) the Customer's processing of the Personal Data shall take place according to the terms of the Contract including this clause 10;
(c) Personal Data shall only be processed by the Customer to the extent and in the manner that the Company has instructed the Customer to do so pursuant to the Contract and/or the Company's or relevant Data Controller’s reasonable written instructions from time to time and in each case only for the purpose of the services (which for the avoidance of doubt shall include any written instructions by the Data Controller to the Customer to input any Personal Data into the Service on behalf of that Data Controller);
(d) it shall ensure (and procure in the case of the Customer’s Personnel) that the processing of the Personal Data shall take place exclusively in the EEA and that no transfer of or access to or other processing of the Personal Data to/from any jurisdiction or territory outside of the EEA and/or to an international organisation occurs or is permitted without the prior written and explicit consent of the Company and relevant Data Controller (in each case) and then only in a manner which is compliant with Data Protection Legislation applicable to the Company (unless the Customer is required to do so by applicable European Union or European Member State law to which the Customer is subject and in such a case, the Customer shall inform the Company of that legal requirement before such transfer or access occurs or is permitted, unless that law prohibits such information on important grounds of public interest); and
(e) it shall comply with the obligations of a Data Processor under the Data Protection Legislation.
10.7 The Customer shall, unless otherwise directed by Company or the relevant Data Controller:
(a) process the Personal Data (on behalf of the Company and the relevant Data Controller) exclusively for the provision of the services and only for the Purposes of the Processing;
(b) ensure that the Customer’s Personnel authorised to process the Personal Data are subject to appropriate confidentiality obligations and are trained as to, and informed of, the terms of this clause 10;
(c) ensure that neither the Customer nor any of the Customer’s Personnel publish, disclose or divulge Personal Data to any third party unless required by the Contract or as directed in writing to do so by the Company or the relevant Data Controller;
(d) at the choice of the Company, permanently and fully delete or return all of the Personal Data (including all copies in whatsoever format) to the Company upon the expiry or termination (howsoever caused) of the Contract unless European Union or European Member State law requires storage of the Personal Data and in that case to the extent required by such laws only;
(e) not alter, store, copy, disclose or use the Personal Data, except as necessary for the performance by the Customer of its obligations under the Contract, or as otherwise expressly authorised by the Contract or in accordance with the Company’s or the relevant Data Controller’s reasonable written instructions from time to time;
(f) assist the Company in a timely manner where the Company or any relevant Data Controller conducts a data protection impact assessment;
(g) assist the Company and any relevant Data Controller in ensuring their compliance with the Data Protection Legislation with respect to security and breach notifications; and
(h) assist the Company in any consultations with or investigation or audits by any supervisory authority.
10.8 The Customer shall immediately inform the Company of any intention by the Customer to change or otherwise amend the services which may lead to new categories of processing or the processing of new types of data and the Company shall have the right to object to such changes or other amendments.
10.9 The Customer shall (and shall procure that the Customer’s Personnel shall):
(a) promptly notify the Company and the relevant Data Controller in relation to any legally binding request for disclosure of the Personal Data by a supervisory authority, law enforcement or other applicable authority unless otherwise prohibited by applicable law;
(b) promptly notify the Company and the relevant Data Controller in relation to all requests received directly from the Data Subjects without responding to that request, unless required to do so by law or unless otherwise authorised by the Company to do so;
(c) assist the Company (and the relevant Data Controller) in responding to any request from a Data Subject to exercise their rights under the Data Protection Legislation; and
(d) assist the Company (and any relevant Data Controller) in taking any actions deemed necessary or appropriate to deal with complaints or allegations of or in connection with a failure to comply with the Data Protection Legislation.
10.10 The Customer shall appoint a data protection officer where required by the Data Protection Legislation.
10.11 If the Customer cannot provide compliance or foresees that it cannot comply with its obligations under the Contract including this clause 10, it shall promptly inform the Company of its inability to comply, in which case the Company may suspend the Customer’s entitlement to process the Personal Data in any way that the Company (at its discretion) decides by notice in writing to the Customer.
10.12 In the event that the Customer breaches any of the written instructions of the Company and any relevant Data Controller or the Data Protection Legislation by determining the purposes and means of processing, the Customer may be considered to be a Data Controller in respect of that processing.
10.13 The Company agrees that it will comply with its obligations as a Data Processor under the Data Protection Legislation.
10.14 The Company (or any relevant Data Controller) may, upon giving the Customer reasonable notice, carry out an audit in relation to the services to satisfy itself that the Customer is complying with the Data Protection Legislation in respect of the processing of the Personal Data and the Customer shall (and shall ensure that Customer’s Personnel shall) if requested by the Company or the relevant Data Controller, promptly provide a detailed, written description of the security, technical and organisational measures implemented.
10.15 The Customer shall immediately within 1 business day and at the latest within 24 hours of becoming aware, inform the Company and any relevant Data Controller of any breach of the Data Protection Legislation committed, or suspected to have been committed, by the Customer which affects or may affect the Personal Data. In such circumstances, the Customer shall implement measures necessary to secure Personal Data and to mitigate potential adverse effects on the Data Subjects and shall agree the same with the Company and any relevant Data Controller without undue delay.
10.16 The Customer shall promptly inform the Company if, in its opinion, a written instruction of the Company is not in compliance with Data Protection Legislation.
10.17 The Customer agrees that, having regard to the state of the art and the costs of implementation and the nature, scope context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of the Data Subjects, the Customer shall implement appropriate security, technical and organisational measures to ensure a level of security appropriate to the then current risk, including inter alia:
(a) the pseudonymisation and encryption of the Personal Data;
(b) the ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and the services;
(c) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
(d) the prevention of the use of the Personal Data without prior written authorisation;
(e) the prevention of the reading, copying, modification, or removal of the Personal Data without the authorisation of the Company during processing;
(f) a process for ensuring that it is possible to check and establish whether and by whom Personal Data has been accessed;
(g) a process for preventing unauthorised persons from gaining access to the Personal Data and ensuring that only appropriately trained Customer Personnel have access to the Personal Data;
(h) a process for preserving, so far as possible, the integrity of Personal Data and prevent any loss, unauthorised disclosure, theft, manipulation or interception of or degradation in the Personal Data;
(i) a process for making secure back-up copies of the Personal Data on such regular basis as is reasonable for the particular data concerned as required by the Customer's disaster recovery and business continuity plan to ensure that availability and access to the Personal Data can be restored in a timely manner in the event of a physical or technical incident;
(j) within 1 business day of becoming aware immediately notifying the Company and the relevant Data Controller if any of the Personal Data is lost, is disclosed without authorisation, becomes corrupted, is damaged or is deleted accidentally, or if the Customer reasonably suspects that any of the same has occurred; and
(k) a process for ensuring that appropriate physical access controls, system access controls, data access controls, input controls, order controls to Personal Data are in place.
10.18 In the event that the Personal Data is corrupted or lost or sufficiently degraded as to be unusable due to an act or omission of the Customer or any third party for whom the Customer is responsible after its receipt or creation by the Customer or during any collection, processing, storage and transmission of the Personal Data or otherwise as a result of any Customer Default, in addition to any other remedies that may be available to the Company under the Contract or otherwise the Company shall have the option to require the Customer, at the Customer’s own expense, to restore or procure the restoration of the Personal Data to the Company’s satisfaction that Customer has made good such corruption, loss or degradation of the Personal Data.
10.19 In the event that the Personal Data is corrupted or lost or sufficiently degraded as to be unusable otherwise than due to an act or omission of the Customer, or a Customer Default or any action or inaction of a third party for whom the Customer is responsible, the Customer shall (if required by the Company) nevertheless carry out such remedial actions as may be necessary to restore the Personal Data as the Company may require and the reasonable cost of the said remedial actions shall be borne by the Customer.
10.20 The Customer shall not sub-contract any of its processing obligations performed on behalf of the Company under this clause 10 to a Sub-Supplier without the prior written consent of the Company.
10.21 The Customer shall inform the Company of its intention to engage a Sub-Supplier for any of its processing and the Company shall have the right to oppose the appointment of a new Sub-Supplier and shall notify the Customer of any objections in writing as soon as possible after receipt of the Customer's notice relating to such Sub-Supplier.
10.22 Where the Customer enters into a Sub-Processing Contract with the consent of the Company, it shall do so only by way of a Sub-Processing Contract with the Sub-Supplier which imposes the same obligations on the Sub-Supplier as are imposed on the Customer under the Contract and shall be imposed on the Sub-Supplier by way of a contract or other legal act under Union or Member State law, in particular, providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation.
10.23 The Company (and the relevant Data Controller) shall be granted control and examination rights of the processing of the Sub-Supplier according to the Contract and the Data Protection Legislation. This will include the right of the Company to obtain information from the Customer, upon written request, on the substance of the Sub-Processing Contract and the implementation of the processing obligations within the Sub-Processing relationship, where necessary by inspecting the relevant Sub-Processing Contract.
10.24 Where the Sub-Supplier fails to fulfil its obligations under a Sub-Processing Contract, the Customer shall remain fully liable to the Company for the performance of the Sub-Supplier's obligations under such written Sub-Processing Contract.
10.25 The provisions of this clause 10 shall apply to any sub-sub-supplier engaged by the Sub-Supplier.
10.26 Notwithstanding any limitation on liability herein or in the Agreement, each Party agrees to indemnify and keep indemnified the other fully and effectively against all actions, proceedings, claims demands, losses (including legal costs on a full indemnity basis) which the other may sustain or incur as a result of any breach of the provisions of this Clause in respect of each Party’s respective undertakings as a Controller and processor of Personal Data.
10.27 The parties acknowledge that for the purposes of the Data Protection Legislation, and in respect of business contact details of the Customer’s employees, agents and sub-contractors the Company will act as Data Controller and shall process such Personal Data only for the purposes of contract administration, providing the Service and for marketing. In order to provide the Service and to allow the Customer to provide the services and enter into a Transaction the Company may disclose such Personal Data to other Subscribers and to other members of the Company’s group of companies.
11 Termination and Suspension
11.1 Unless otherwise agreed in writing, this Contract and the provision of the Service, or any element thereof, including any optional service, may be terminated at any time, in accordance with clause 16, by:
11.1.1 the Company giving 3 months written notice to the Customer; or
11.1.2 the Customer giving 3 months written notice to the Company.
11.2 Either party may end this Contract with immediate effect on giving notice:
11.2.1 if the other party commits any material breach of any provision of these Conditions and, if capable of remedy, fails to remedy the breach within 7 days of receiving from the other party a written notice requesting it to do so; or
11.2.2 if bankruptcy or insolvency proceedings are brought against the other party or if the other party does not make any payment under a judgement or a Court on time, or the other party makes an arrangement with creditors, or a receiver or administrator is appointed over, any of the assets or the other party goes into liquidation;
11.3 Either party can suspend the provision of the Service to the other or end this Contract (or both) with immediate effect on giving notice if;
11.3.1 that party believes the service is being used or delivered by the other party in a manner prohibited under conditions 3, 4 or 6.
11.3.2 the other fails to pay any sum due under these Conditions within 7 days of its due date or any payment method tendered is rejected and payment not made within 7 days of such rejection;
11.4 The Customer agrees that payments can be collected by Direct Debit and that without a current Direct Debit agreement in place between the Parties the Company may immediately suspend the provision of the Service without notice;
11.5 No delay, forbearance or indulgence in acting upon a breach of these Conditions by either party, will be regarded as a waiver of either parties rights in respect of that or any subsequent breach.
11.6 Where the Customer subscribes to use any additional optional services via the Service then any termination of such additional services must also be received by the Company in writing in accordance with clause 11.1.
12 Dispute Resolution
12.1 Any dispute arising under these Conditions shall in the first instance be reported to senior management representatives of both Parties who will endeavour to resolve such dispute to the mutual satisfaction of both Parties. In the first instance and within 7 days following a written request from either the Customer or the Company in relation to a dispute or the failure of a Party to perform its obligations as defined, a senior representative of both Parties shall meet to attempt to agree a resolution. If the dispute is not resolved within 14 days of the meeting described above, then directors of both Parties shall meet in an attempt to agree a resolution. Should this fail to result in a mutually agreeable resolution within 14 days of this meeting, either Party shall be entitled to issue legal proceedings in order to resolve the dispute.
13 Liability
13.1 Except as expressly provided in these terms and conditions, all warranties, statements, terms and conditions or undertakings which may be implied by statute, common law, custom or trade or otherwise are hereby excluded and this Condition 13 specifies the entire liability of either party, including liability for negligence. For clarity, this clause does not apply to Clause 10, or Appendix 1, of this Agreement.
13.2 If the Company fails to comply with any term of this Contract, or is negligent, the Customer may be entitled to recover compensation for any costs suffered. However, whilst the Customer acknowledges that the Company accepts liability for death and personal injury, or fraudulent misrepresentation the Company shall not be required to compensate the Customer for loss arising as per Clause 13.2.1, 13.2.2:
13.2.1 as the Company has no control over the information which can be transmitted by Subscribers using the Service and that the Company does not examine the use to which the Customer or other Subscribers put the Service or the nature of the Information the Customer or they are sending or uploading, the Company therefore excludes all liability of any kind for:
a. the transmission or reception of any Information via the Service or accuracy or quality of any such Information;
b. any Information or any other material published or otherwise made available by the Customer or any other person on the Site;
c. the terms of any contract or other agreement concluded between the Customer and any other Subscriber;
13.2.2 the Company shall not be liable whether in contract, tort or otherwise for the acts or omissions of other providers of telecommunications services or for faults in or failures of their or the Customer’s apparatus.
13.3 The Company shall not be liable in contract, tort or otherwise for special, indirect or consequential loss (including loss of profit) or loss of data, costs or other expenses whatsoever even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
13.4 Subject to Conditions 13.2 and 13.3 liability in contract, tort or otherwise (including liability for negligence) under or in connection with this Contract, for either party, shall not exceed in aggregate the total sums payable by the Customer to the Company pursuant to this Contract.
13.5 Subject to Condition 13.3 the Company shall indemnify the Customer against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Service (excluding any Third Party Systems) by the Customer during the currency of this Contract infringes the Intellectual Property Rights of the said third party (“Intellectual Property Infringement”) provided that:
13.5.1 the Customer gives notice to the Company of any Intellectual Property Infringement forthwith of becoming aware of the same;
13.5.2 the Customer gives the Company the sole conduct of the defence, claim or action in respect of any Intellectual Property Infringement and not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the Company’s express instructions; and
13.5.3 the Customer acts in accordance with the Company’s reasonable instructions and gives the Company such assistance that the Company shall reasonably require in respect of conduct of the said defence.
13.6 The Company shall have no liability to the Customer in respect of any Intellectual Property Infringement to the extent the same is due to any unauthorised alterations, modification or adjustment to the Software by the Customer without the Company’s consent.
13.7 Each provision of this Condition 13 operates separately in itself and survives independently of the others.
14 Variation
14.1 The Company may change the terms and conditions of this Contract at any time upon giving the Customer 30 days’ notice of such changes before they take effect or immediately if required to do so by law.
15 Force Majeure
15.1 The Company shall not be liable for any delay or failure to perform its obligations if such delay and failure is due to something beyond its reasonable control.
15.2 Where any event beyond the reasonable control of the Company causes the entire Service to be completely unavailable for a period exceeding 5 consecutive days (the “Outage Period”), the Company will extend the Customer’s then current period of registration by the Outage Period at no additional cost to the Customer.
16 Notice
16.1 Notices given under a Contract from a Customer must be in writing (excluding e-mail and facsimile) to the addressee as described in clause 16.4.1.
16.2 Notices given under a Contract from a Customer in respect of the termination of the Contract, or any optional services under the Contract to which the Customer subscribes, must be in writing (excluding e-mail and facsimile) and delivered by a licensed postal operator using a recorded delivery method, to the addressee as described in clause 16.4.1, and the Company reserves the right to request from the other party evidence of such notice having been sent.
16.3 Notices given under a Contract from the Company are delivered by one of the following methods:
16.3.1 to the System Notifications Area within the Service;
16.3.2 in writing (excluding e-mail and facsimile) to the addressee as described in clause 16.4.2.
16.4 Notices in writing given under a Contract should be sent:
16.4.1 to epyx Limited at Heath Farm, Hampton Lane, Meriden, West Midlands, England, CV7 7LL or any alternative address which the Company notifies to the Customer at any time.
16.4.2 to the Customer at the address specified when registering for the Service or any alternative address which is notified to epyx at any time or, to its registered office.
17 Confidentiality
17.1 All information supplied to the Company by the Customer in connection with this Contract which may reasonably be considered as commercially sensitive shall not be disclosed to any third party unless required by the laws of any competent jurisdiction or by any national or international regulatory authority or is necessary for the proper performance of our respective obligations under this Contract. This obligation of confidentiality will not apply to any information which is in the public domain or was known by the recipient prior to disclosure pursuant to this Contract, or is designed to be distributed or displayed in relation to the intended use of the Service as defined by the Company.
17.2 The Customer may not undertake any marketing or public relations activity in connection with its subscription to the Service without the Company’s prior approval.
18 Third Party Rights
18.1 No term of this Contract is intended to confer a benefit on, or be enforceable by, any person other than the Customer and the Company.
19 Severable Conduct
19.1 In the event of any of the provisions set out in these terms and conditions being unenforceable or void for any reason, each term and condition shall be deemed to be severable from the remaining terms and conditions and such remaining terms and conditions shall remain in full force and effect.
20 Law/Jurisdiction
20.1 The Service is targeted at Republic of Ireland residents only and any Customer who is not a resident of the Republic of Ireland should not use the Service.
20.2 This Contract is governed by the laws of Ireland and the Customer and the Company submits to the exclusive jurisdiction of the courts of Ireland.
21 Use of Data
21.1 The Company will collect specific data about the Customer (excluding Customer Data as defined in Appendix 1) when they register for the Service and when the Customer transmits or receives Information via the Service and the Customer expressly acknowledges that the Company and any member of the group of companies of which the Company is a member may use such data or Information (excluding any personal data) for publicity purposes or for the purposes of encouraging other Subscribers to transact via the Service or as otherwise permitted through proper use of the Service.
21.2 The Customer agrees that the Company may collate data (excluding any Customer Data as defined in Appendix 1) from the Service in order to provide analysis and reports for the benefit of the Customer, other Subscribers and third parties.
21.3 The Company and other Subscribers may use “cookies” to collect information. A cookie is a small data file that is written into a visitor’s hard drive for the purposes of record keeping and to make improvements. The Company confirms that these cookies do not collect or store any Customer Data as defined in Appendix 1
21.4 For the avoidance of doubt it is the Customer’s responsibility to maintain a full and accurate record of all data (including Personal Data and invoices) transmitted through the Service. The Company reserves the right to delete any such data in accordance with its retention policy, a copy of which is available on request from the Company.
22 Support
Helpline Support Services:
Call 1-800 93 65 61 or e-mail support@epyx.co.uk
23 Fee Types
Fee Description
Annual Registration Fee (Directory Entry Fee) - a Fee charged in relation to each of the Supplier’s directory entries on the Platform
Transaction Fee - a Platform Fee charged either as a fixed fee or as a percentage of invoice value (subject to any applicable minimum fee) where the Supplier creates or receives a job-sheet or credit note via the Service. Where a Supplier subscribes to a manufacturer programme and where relevant, any surcharge applicable shall apply to all Transactions created via the Service.
Repairer Out of Franchise Surcharge - a Platform Fee charged when the Supplier creates or receives a Transaction in respect of a vehicle with a make for which the Supplier does not hold a valid and current 1link directory entry.
Service Booking Fee - a Platform Fee charged when the Supplier receives a work booking or work required notification via the Service, or creates a work booking via the Service. No charge for a “walk-in” job.
Site Electronic Communication Fee - a Platform Fee charged when a Supplier transmits or receives an electronic communication message (email or SMS) via the Service.
Work Booking Introduction Fee - a Platform Fee charged on behalf of a Scheme Operator, when a Subscriber transmits a work booking to the Supplier for which a booking introduction fee applies.
Invoice Commission - a Platform Fee charged on behalf of a Scheme Operator, when a Supplier submits an invoice to a Subscriber for which an invoice commission applies.
APPENDIX 1
Data Protection for 1Link Service Network
Data Protection Appendix for 1link Service Network
1. Processing by the Customer as data sub-processor
1.1 Subject Matter of Processing
The processing of Personal Data is required for the Customer to receive the benefit of the Service and for the Customer to be able to supply the services to other Subscribers.
1.2 Nature of Processing
The Customer will process Personal Data on behalf of the Company in order for the Customer to provide the services to other Subscribers.
1.3 Purpose of Processing
The Customer processes Personal Data on behalf of the Company in order that the Subscribers may obtain the benefit of the services via the Service.
The Customer may process Personal Data for the purpose of managing and improving the services conducted by members of its group.
1.4 Duration of the Processing
The Customer will process Personal Data on behalf of the Company for the duration of the Contract.
2. Types of Personal Data
The following list comprises the types of Personal Data that the Customer will process on behalf of the Company:
• Full name
• Telephone number(s) (including mobile telephone number(s))
• Email address(es)
• Address(es)
• Details of employer
• Job title
• Any other Personal Data which the relevant Subscriber inputs into the Service or which the relevant Subscriber requests the Customer to input into the Service on its behalf.
3. Categories of Data Subject
The following list comprises the categories of Data Subject to which the Types of Personal Data relates:
• Drivers of vehicles for which the relevant Subscriber is responsible;
• Details of users, employees, agents and workers appointed by the relevant Subscriber to use the services and the Service and who are authorised to approve and enter into Transactions.
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