DRAGON2000 LIMITED – TERMS & CONDITIONS
1. Definition of Product/Services
“Contract” means the agreement between Dragon2000 and the Customer upon these terms and conditions.
“Contract Price” means the amount payable by the Customer.
“Customer” means the organisation or entity which requests the Software and/or Website Services who are using the Software exclusively for business purposes. It shall not include a consumer within the meaning of the Consumer Rights Act 2015.
“Dragon2000” means the Company known as Dragon2000 Limited.
“Dragon2000 Website” means the Dragon2000 website.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Licence” means permitted access to the Software, Mobile App Services and Managed Website Service pursuant to the terms and conditions of this Contract.
“Licensed Connection” means a single permitted use of the Software and/or Mobile App Services which may be exercised by multiple users provided that it is not used by more than one Customer and from more than one device at any one time.
“Managed Websites Service” means the managed service of the design, construction and hosting of a website by Dragon2000 provided to the Customer as an ongoing service for their use, including any additions and enhancements to the website.
“Mobile App Services” means the provision of the Software and any applications for mobile devices designed and built by Dragon2000 and provided to the Customer including additions and enhancements as an ongoing supported service.
“Order” means the placing of an Order for any of the Software, Mobile App Services or Managed Website Services. An Order may be placed by telephone, email or other correspondence and will occur at the latest upon payment of the Contract Price.
“Software” means any Software devised and licensed by Dragon2000 including Dragon2000 and DragonDMS and provided to the Customer including additions and enhancements as an on-going supported service by means of a data service connected by the internet to the Customer’s computers and/or to mobile devices.
2.The Basis of Access
2.1 Acceptance of the Contract for access to the Software, Mobile App Services and/or to the Managed Website Service occurs upon receipt by Dragon2000 of the Order from the Customer. Provided that the Customer pays the Contract Price as it falls due, the Contract shall continue in full force and effect until terminated by either party in accordance with clause 10.
2.2 Access to the Software and Mobile App Services is limited to the number of Licensed Connections purchased by the Customer. A Licensed Connection may be used by multiple users on different devices always provided that no more than one Licensed Connection is in use at any one time.
2.3 The Managed Website Services include the design, construction and hosting of a website for the Customer and may be charged at a single price or as an on-going monthly price or a combination of both, for the work carried out by Dragon2000.
2.4 Any dates for access to the Software, Mobile App Services or to the Managed Website Service are approximate only and time is not of the essence.
3. Payment of the Contract Price
3.1 The Customer shall pay to Dragon2000 the Contract Price comprised of (as required);
3.1.1 An on-going monthly fee for access to the Software calculated in accordance with the number of Licensed Connections ordered by the Customer and due as invoiced and/or;
3.1.2 An on-going monthly fee for the Managed Website Services due as invoiced per calendar month and/or;
3.1.3 A single fee for the design, construction or re-design of the Customer’s Website.
3.2 The Contract Price is net of VAT or any further duty (whether or not initially charged by Dragon2000) and payable in addition to the Contract Price and will include any increase applicable to the rate of such tax or duty.
3.3 Dragon2000 reserves the right to suspend access to the Software, the Mobile App Services and Managed Website Service pending full payment by the Customer of all outstanding amounts due.
4. Licence and Permitted Use
4.1 In consideration of the Contract Price, and subject to the terms of the Order, Dragon2000 grants to the Customer a limited, non-exclusive and non-transferrable licence to gain access to the Software and/or to the Mobile App Services and/or to benefit from the Managed Website Service in accordance with the terms of this Contract for as long as Contract Price is paid every month and subject to the conditions below.
4.1.1 All Intellectual Property Rights relating to the Software and the Mobile App Services and any enhancements or updates shall be the property of Dragon2000 and the Customer shall have no rights thereto except for the licence to use it granted by this Contract.
4.1.2 All Intellectual Property Rights relating to the Managed Website Service designed, constructed and hosted by Dragon2000 and provided to Customers shall be the property of Dragon2000 and the Customer shall have no rights thereto (unless otherwise agreed in writing) except for the licence to use it granted by this Contract.
4.1.3 In the case of Software and Mobile App Services, access is limited to the number of Licensed Connections purchased by the Customer. The Customer shall not attempt to gain access to the Software and Mobile App Services beyond this and Dragon2000 shall not be under any obligation to provide access beyond the number of Licensed Connections.
4.1.4 The Customer shall not allow the use of the Software and the Mobile App Services by, or for the benefit of, any person other than an employee of the Customer;
4.1.5 The Customer shall not transfer or distribute to any other person, whether by licence, loan, rental, sale or otherwise, all or any part of the user manuals help sheets and information contained in the Knowledge Base, relating to the Software, Mobile App Services or Managed Website Service.
4.1.6 The Customer shall notify Dragon2000 as soon as it becomes aware of any unauthorised use by any person, of the Software, Mobile App Services or Managed Website Services.
4.1.7 The Customer has no right, and shall not permit any third party, to copy adapt, reverse engineer, decompile, disassemble, modify or make error corrections, additions or enhancements to the Software, Mobile App Services and Managed Website Service in whole or in part.
4.1.8 The Customer shall not use any information provided by Dragon2000 to create any software whose expression is substantially similar to that of the Software, Mobile App Services and Managed Website Service, nor use any information in any manner which would be restricted by any copyright subsisting in it;
4.1.9 The Customer shall not;
(a) sub-licence, assign or novate the benefit or burden of this Contract in whole or in part;
(b) allow the Software, Mobile App Services and/or the Website, to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this Contract,
without the prior written consent of Dragon2000.
4.1.10 The Customer shall maintain adequate security measures to safeguard the Software, Mobile App Services and Managed Website Service from unauthorised access use or copying.
4.1.11 The Customer undertakes to treat as confidential and keep secret information received in connection with the Software, Mobile App Services and Managed Website Service and user information and not to use it for purposes other than in relation to the Contract and not to disclose any part of it to any person without the consent of Dragon2000. This provision will remain in force following termination of the Contract but subject to the information becoming part of the public domain.
4.1.12 The Customer shall indemnify Dragon2000 fully against loss, damages or expenses which it may suffer or incur including professional fees and cost of staff time on a full indemnity basis to the fullest extent possible and without any duty to mitigate, as a result of the infringement of the Intellectual Property Rights of any third party as a result of the performance of the Contract by Dragon2000 in accordance with the Customer’s instructions, or as a result of reliance on information or data supplied by the Customer which has been provided to a third party on behalf of the Customer.
5. The Obligations of the Customer
5.1 The provision of the Software, Mobile App Services and Managed Website Service set out above are provided subject to the following conditions which shall comprise the obligations of the Customer. The Customer agrees to;
5.1.1 Provide data, information and operational systems and equipment suitable for use with the Software, including without limitation, sufficient internet band width and connectivity;
5.1.2 Be responsible for fully co-operating with Dragon2000 and in particular, shall provide all information required by Dragon2000;
5.1.3 To nominate at least two members of staff conversant with and proficient in the operating systems environment included in the Software, Mobile App Services and Managed Website Service to receive and correctly apply the advice provided. Dragon2000 shall be under no obligation to support any personnel other than those nominated and competent to be supported;
5.1.4 To investigate any possible problem and to determine to the best of its ability the cause and then to notify Dragon2000;
5.1.5 To deal politely with the staff and representatives of Dragon2000 and to refrain from using verbal abuse, aggressive or threatening behaviour.
5.1.6 To promptly implement any solutions, guidance and instructions provided by Dragon2000 and to promptly perform system tests as requested by Dragon2000;
5.1.7 To provide written descriptions of problems as requested by Dragon2000;
6.1 Dragon2000 warrants that the Software, Mobile App Services and Managed Website Service will substantially perform the functions and have the features as described on the relevant version of the Dragon2000 website, at the date of commencement of the Contract.
6.2 In the event of a problem with the Software, Mobile App Services and Managed Website Service (and subject to the right of termination below) the Customer’s sole remedy shall be limited to fixing or re-installation of the programme.
6.3 Dragon2000 does not warrant that the use of, and access to the Software, Mobile App Services and Managed Website Service will be uninterrupted or error-free and specifically does not warrant that the Software, Mobile App Services and Managed Website Service will be provided in case of lack of internet connectivity as a result of a fault by Dragon2000, the data host, the Customer or any third party.
6.4 The Customer accepts responsibility for the selection of the Software and Mobile App Services to achieve its intended results and acknowledges that they are not provided to meet the individual requirements of the Customer.
6.5 Dragon2000 does not provide a warranty beyond any provided by a third party manufacturer of software or other equipment.
6.6 In the event of a warranty claim, Dragon2000 shall have the option to do one of the following;
6.6.1 Fix or re-install the programme, provided that the Customer supplies all the information that may be necessary to assist Dragon2000 in resolving the problem; or
6.6.2 Terminate this Contract immediately by notice in writing to the Customer and refund part of the Contract Price (less a reasonable sum to reflect the Customer’s use of the Software, Mobile App Services and Managed Website Service) payable upon termination of the Contract.
6.7 The warranty shall not apply if;
6.7.1 The Software, Mobile App Services and Managed Website Service are not used in accordance with the terms of this Contract and the instructions of Dragon2000 including the use of specified and appropriate equipment;
6.7.2 The Software, Mobile App Services and Managed Website Service is altered, modified or converted by the Customer or any third party;
6.7.3 Any problem or failure results from a third party’s or the Customer’s equipment or software not supplied by Dragon2000 or for any reason outside Dragon2000’s control;
7.1 The Software, Mobile App Services and Managed Website Services are supported by Dragon2000. Enhancements and updates shall be provided to the Customer from time to time and Customer and public access may be affected during this process.
7.2 Dragon2000 does not support:
7.2.1 Any software, programmes, accessories, attachments, machines, systems or other items or hardware not included in the Customer’s Order.
7.2.2 Rectification of lost or corrupt data or programmes.
7.2.3 Support of the Software, Mobile App Services and Managed Website Service which have been modified or altered by any person other than Dragon2000.
7.2.4 Diagnosis and/or rectification of potential or actual faults not associated with the operation of the Software, Mobile App Services and Managed Website Service;
7.2.5 Corrections or data corruption caused by the Customer, its employees or agents or by any third party or other software.
8. Exemptions and Limitations of Liability
8.1 The Customer accepts that it is responsible to select how the Software will meet its specific requirements. The Customer accepts that the Software, Mobile App Services and Managed Website Service cannot be tested in every possible combination. In particular, Dragon2000 does not accept any liability for whether the Customer’s Order will meet the Customer’s requirements.
8.2 Liability is excluded for any losses whether direct or indirect in connection with whether the Software, Mobile App Services and Managed Website Service fulfils the requirements of any communication or interface with third party software of any description.
8.3 Liability is excluded for any losses whether direct or indirect in connection with whether the operation of Software, Mobile App Services and Managed Website Service is uninterrupted or error free or arising from a lack of internet connectivity as a result of a fault by Dragon2000, the data host, the Customer or any third party.
8.4 Liability is excluded for any losses whether direct or indirect in connection with the loss or corruption of data including any losses in connection with the cost of replacement, recovery of reconstruction of Customer’s or third party’s tapes, discs, records, documents or media.
8.5 The Customer shall always inform Dragon2000 of any alleged loss in connection with this Contract and shall afford it a reasonable opportunity of correcting the alleged default.
8.6 Whilst Dragon2000 may accept liability for death or personal injury directly caused by its act or omission or for direct physical damage to Customer’s tangible property, it will not be liable for any loss or damage howsoever caused (even if foreseeable) as follows:
8.6.1 Where the Contract has terminated;
8.6.2 Any alleged losses arising from a default which has been corrected;
8.6.3 Any loss of profits; or
8.6.4 Any loss of data or failure to comply with Data Protection Legislation
8.6.5 Any loss of business; or
8.6.6 Depletion of any goodwill and/or similar losses; or
8.6.7 Any loss of anticipated savings; or
8.6.8 Any loss of goods; or
8.6.9 Any loss of contract; or
8.6.10 Any loss of use; or
8.6.11 Any loss caused by Dragon2000 acting under the instruction of the Customer, its employees or agents;
8.6.12 Any loss caused by the lack of competent staff conversant with and proficient in, the Software and the operating systems environment.
8.7 Dragon2000 will not be liable for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
8.8 Dragon2000’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Contract shall in all circumstances and for all losses arising out of one incident, be limited to the total Contract Price.
8.9 Where Dragon2000 has introduced the Customer to any third party as the supplier of any goods or services including training to the Customer, Dragon2000 gives no warranty or guarantee as to the suitability or quality of the goods or services provided.
8.10 The Customer acknowledges that the Contract Price has been calculated on the basis that Dragon2000 excludes and/or limits its liability to the Customer in accordance with the Contract and that the exclusions and limitations contained in the Contract are fair and reasonable in all the circumstances known at the date of the Contract.
8.11 Each of the limitations and exclusions set out above is to be construed as a separate limitation or exclusion, applying where other limitations or exclusions are held inapplicable or unreasonable, and shall remain in force despite termination of the Contract.
9. Confidentiality and Data Protection
9.1 In this Clause (and elsewhere as required) the following terms are defined:
“Controller” means the organisation or entity which determines the purposes and means of processing personal data under the General Data Protection Regulations.
“Data” means any data including personal data and sensitive personal data as set out in the GDPR
“Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
“Processing” or “Process” means any operation or set of operations that is performed upon Data.
“Processor” means the organisation or entity which is responsible for processing Data on behalf of a Controller under the General Data Protection Regulations.
“Sub-Processor” means the organisation or entity which is responsible for processing Data on behalf of a Processor under the General Data Protection Regulations.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Dragon2000 is the Processor of Data. The Customer shall in the use of the software, mobile app services and managed website services, have sole responsibility for the accuracy, quality and legality of Data processed and the means by which they acquired the personal data.
9.3 The Customer shall comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not replace, the Customer’s obligations under the Data Protection Legislation.
9.4 Without prejudice to the generality of this Clause 9, the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Data to Dragon2000 for the purposes of this Contract and as set out below:
9.4.1 Purpose: collection of Data is for the purpose of enabling the Software to operate across including mobile app services and managed website services
9.4.2 Subject matter: the Data is that collected and input into the Software by the Customer and includes information about vehicles, ownership and registration and information ancillary to the management of a car dealership.
9.4.3 Type of Data: Data may include Personal Data including name, address and contact details of prospects, customers and employees of the controller.
9.4.4 Duration: The Data is processed for the duration of this Contract and for a reasonable period thereafter to facilitate reconnection to the Software, media or applications, or otherwise for the purposes of the Contract or the legitimate interests of the Customer or its data subjects.
9.5 The Customer acknowledges that the Software, Mobile App Services and Managed Website Service and are provided by means of a third party connected over the internet The Customer shall consent to any Personal Data being processed in connection with and ancillary to, the performance by Dragon2000 of its obligations under this Contract: The Customer shall consent to Dragon2000 appointing a third-party Sub-Processor of Data under this Contract by a Contract containing obligations similar to the basis upon which Dragon2000 processes Data.
9.6 The Customer and Dragon2000 shall assist each other in meeting their respective obligations under the GDPR, specifically in relation to the basis of processing, the notification of personal data breaches, providing information for data protection impact assessments where appropriate, and providing subject access and allowing data subjects to exercise their rights.
9.7 Dragon2000 excludes to the fullest extent possible any liability in connection with a breach of confidentiality or any unauthorised access to the Customer’s confidential information in connection with any third party data hosting or similar processing services.
9.8 The Customer shall be responsible for complying with any law (whether applying in the United Kingdom or elsewhere and whether now in force or coming into force hereafter) restricting or affecting the transmission or processing of data and its protection and shall be responsible for obtaining any permission or licence therefor, and shall be responsible for (and shall indemnify Dragon2000 against) the payment of any fee, duty or transmission charges payable in relation thereto.
9.9 The Customer shall indemnify Dragon2000 against any losses, monies, revenues, penalties, fines, expenses and any amounts paid to a claimant as a result of or in connection with, the Customer’s obligations under the Data Protection Legislation and Clause 9.
10.1 Dragon2000 may terminate this Contract immediately by giving written notice to the Customer if;
10.1.1 The Contract Price or any part of it is not paid within 14 days of the due date for payment;
10.1.2 The Customer commits any other breach of any of the provisions of the Contract and, if the breach is capable of remedy, fails to remedy it within 14 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
10.2 The Customer may terminate upon one calendar’s month notice in writing.
10.3 Either party may terminate immediately if:
10.3.1 The other party is dissolved, ceases to conduct substantially all of its business or becomes unable to pay its debts as they fall due or in the event of a receiver being appointed, of any of the property or assets of that other party;
10.3.2 The other party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986) or goes into liquidation;
10.4 Termination of this Contract will not affect either party’s accrued rights (including rights to be paid) as at the date of termination. However, following termination the Customer will be unable to gain access to any of the data incorporated within the DragonDMS database and Dragon2000 shall have no obligation to provide such access.
10.5 Prior to termination pursuant to this clause 10, the Customer may extricate the data that is available within the reports in the DragonDMS database, but shall have no right to receive data in any alternative format or media nor to receive any services to transfer the data to a successor provider.
10.6 Upon termination of this Contract, all Data will be deleted irretrievably after a reasonable period of not more than 6 months. The Customer may request in writing that the deletion shall take place within a shorter period of time.
11. Force Majeure
Neither Dragon2000 nor the Customer shall be liable for any loss or damage caused by delay or failure to fulfil its obligations under this Contract where such delay or failure is due to any cause beyond the control of Dragon2000 or the Customer, as the case may be, including (without limitation) acts of God, war or warlike action, civil disorder, insurrections or riots, fire, storm, flood, explosions, earthquakes, epidemics or quarantine restrictions, sabotage, government disorders, priorities or regulations affecting materials or facilities, court orders, strikes actual or threatened, labour troubles causing cessation, slowdown or interruption of work, failure, cessation or interruption of the data hosts equipment causing interruption or loss to the Software Services, inability to obtain necessary governmental or regulatory authority approval, delay or cancellation of any commercial air or transport service, or any cause to the extent it is beyond the parties’ reasonable control. If Dragon2000 is prevented from fulfilling all or part of the Contract due to force majeure, the Customer may make alternative arrangements and will not be liable to pay for what is not provided. The Customer must make all payments due before or after the event of force majeure.
12.1 Dragon2000 may assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Contract. The Customer cannot assign or otherwise transfer this Contract without the prior written consent of Dragon2000.
12.2 No variation to this Contract will be valid or binding unless it is recorded in writing and signed by or on behalf of the parties.
12.3 The Contracts (Rights of Third Parties) Act 1999 will not apply to this Contract and no third party will have any right to enforce or rely on any provision of this Contract.
12.4 Dragon2000’s failure at any time to require strict performance by the Customer of any provision of the contract shall not waive or diminish Dragon2000’s rights subsequently to demand strict performance of any part of the Contract.
12.5 Provisions which by their intent or terms are meant to survive the termination of this Contract will do so.
12.6 If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Contract will not be affected.
12.7 Any notice to be delivered under this Contract must be in writing and delivered by pre-paid first class post to or left by hand delivery at the registered address or place of business of the notified party, or sent by email to an authorised representative. Notices sent by post shall be deemed to be delivered on the second business day after posting; notices delivered by hand will be deemed to have been received at the time the notice is left at the proper address; Notices sent by email will be deemed to have been received on the next business day after transmission.
13. Whole Contract
13.1 The Contract and the documents referred to, contain the whole Contract between the parties relating to the transactions contemplated by the Contract and supersede all previous Contracts between the parties relating to these transactions.
13.2 The Customer acknowledges that in agreeing to enter into this Contract it has not relied on any representation, promise, statement or warranty or other assurance except those set out in the contract and the documents referred to in it.
13.3 Nothing shall prejudice either party’s right to a cause of action in fraudulent misrepresentation.
14. Applicable Law
The Contract shall be subject to the laws of England and Wales and the Customer irrevocably submits to the exclusive jurisdiction of the English Courts.