MALTA ODOMETER CHECK TERMS & CONDITIONS
cap hpi Terms and Conditions Jan 2019
1. Definitions, Interpretations, and General
1.1. In these terms and conditions (“Terms and Conditions”), the following words and expressions shall have the following meanings:
CAP HPI / We / Us: means or refers to cap hpi Limited, a company registered in England and Wales with registered number 08033745 and whose registered office is Capitol House, Bond Court, Leeds LS1 5EZ; and “Our” shall be construed accordingly;
CAP HPI Confidential Information: the meaning given to it in Condition 6.3;
CAP HPI Data: any vehicle data or vehicle related information, including valuations, descriptions, images and codes, mileage or odometer information contained in the Certificate of Authenticity, or any data, image or other information We supply to You in the course of providing the CAP HPI Products or CAP HPI Services or otherwise under the Contract;
CAP HPI Product(s): the CAP HPI Data, the CAP HPI Services;
CAP HPI Services: means the mileage and/or odometer information verification services supplied by CAP HPI to You relating to the Vehicle and for which a Certificate of Authenticity is issued;
Certificate of Authenticity: means the certificate of authenticity provided to You to verify the odometer of the Vehicle based on the mileage information and odometer readings You have provided;
Commencement Date: the date for which the CAP HPI Product is supplied or provided to You;
Consumer Credit Legislation: means the Consumer Credit Act 1974;
Contract: the contract between CAP HPI and You for the provision of CAP HPI Products comprising these Terms and Conditions and any other documents or schedules listed herein or attached hereto and the terms and conditions listed or displayed in the Certificate of Authenticity;
Data Caching means the temporary or permanent storage of CAP HPI Data in whatever form or media;
Data Protection Law means the Directives (as amended or replaced from time to time) and the Regulation, any guidance, directions, determinations, codes of practice, orders, notices or demands issued by any Supervisory Authority or any applicable national, international, regional or municipal authority or other data privacy and data protection laws or regulations in any other territory in which the CAP HPI Products are provided or received or which are otherwise applicable;
Directives means the European Privacy and Electronic Communications Directive (Directive 2002/58/EC);
DVLA means the Driver and Vehicle Licensing Agency;
Fee(s): the fee payable by You for the CAP HPI Products or any other fees or charges payable by You under this Contract, as applicable;
HPI Check: means an enquiry made by You and forming part of the CAP HPI Services;
IP Claim: any claim or allegation that use of the CAP HPI Products in accordance with the terms of the Contract infringes any third party IP Rights;
IP Rights: all patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know how and trade secrets) and any other rights in the nature of intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Maximum Contract Liability Limit: means the amount equivalent to the Fees paid by You to CAP HPI under the Contract during the 12 months preceding the date on which the claim or series of claims arose;
Purpose: means purposes and the restrictions set out in the Certificate of Authenticity, or where no express purposes or restrictions are noted, for the sole purpose of fulfilling the vehicle import requirements set out by Transport Malta in relations to the Vehicle.
Regulation means, on and from 25 May 2018, Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as and when it becomes applicable.
Schedule(s): the schedule(s) attached to this Contract which forms part of this Contract.
Vehicle: means any motor vehicle that You and CAP HPI have agreed will participate in the CAP HPI Services;
Year: means the period of 12 months from the Commencement Date and each consecutive period of 12 months thereafter during the duration of the Contract; and
You/Your: means or refers to you, the customer or business receiving CAP HPI Products, and “Your” shall be construed accordingly.
1.2. In these Terms and Conditions unless the context otherwise requires:
1.2.1 the headings are used for ease of reference only and do not affect the construction of any of the provisions;
1.2.2 the words “includes”, “include”, and “including” shall mean including but not limited to;
1.2.3 references to any person include references to any human being, company, body corporate, association, joint venture, partnership, trust and any entity capable of suing and being sued;
1.2.4 references to any statute, enactment, order, regulation or other similar instrument shall be construed as references to the statute, enactment, order, regulation or instrument as from time to time amended, consolidated, modified, extended, re-enacted or replaced;
1.2.5 the Contract and all CAP HPI Products provided after the Commencement Date shall be subject to these Terms and Conditions which apply to the exclusion of all other terms, or conditions which You purport to apply with any written order, confirmation of order, specification or other document;
1.2.6 You must notify CAP HPI as soon as possible in the event of any change in Your particulars shown in the Contract. Any such alterations shall be deemed to take effect on the date shown in any confirmation notice CAP HPI issues to You. Any changes or additions to the Contract or to these Terms and Conditions You wish to make must be agreed in writing by CAP HPI.
2. Contract Formation
2.1 The Contract between CAP HPI and You shall come into force when CAP HPI begins to supply to You any CAP HPI Product. Receipt and use of CAP HPI Products shall be deemed conclusive evidence of Your acceptance of these Terms and Conditions and the Contract.
2.2 These Terms and Conditions and the terms and conditions listed or displayed in the Certificate of Authenticity shall govern the Contract to the exclusion of all other terms and conditions including any terms or conditions which You purport to apply under any purchase order or other document, or which are included within Your process to obtain a purchase order.
2.3 Each of the parties is an independent contractor and nothing in the Contract shall be construed to imply that there is any relationship between the parties of employer/employee, partnership or of principal/agent. The parties are not engaging in any joint venture and neither of the parties shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise.
3. Licence of CAP HPI Products
3.1 CAP HPI grants to You for the Purpose only a non-exclusive, personal, non-transferable right and licence to use the CAP HPI Products in the form in which they were provided to You. Your use of the CAP HPI Products beyond the Purpose is strictly prohibited.
3.2 You shall have no right to grant a sub-licence of the rights granted to You in Condition 3.1 (including to any of Your affiliated or group companies). You shall not share with any third party or assist any third party to use any login credentials provided to You to access the CAP HPI Products.
4. Use of Services, System and Our Database Responsibilities
4.1 Whilst We take reasonable care to ensure that Our computer systems used in provision of the CAP HPI Products ("our systems") operate properly We will not be liable for any failure of Our systems or Your inability to obtain access to or use the CAP HPI Products caused by you. We may at any time require You to disconnect Your equipment or any part or parts of it and cease accessing and using Our systems and/or the CAP HPI Products if in Our reasonable opinion such equipment is or has been the cause or is likely to be the cause of failures, interruptions, errors or defects in Our systems and/or Our database.
5. Licence restrictions and Permitted Use
5.1. Except to the extent required to be permitted by applicable law or as expressly allowed in the Contract, You shall not, and shall not permit or assist any third party to:
(a) translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of the CAP HPI Products, nor arrange or create derivative works based on the CAP HPI Products;
(b) make for any purpose including error correction, any modifications, adaptions, additions or enhancements to the CAP HPI Products;
(c) combine, match or merge the whole or any part of the CAP HPI Products with or incorporate the CAP HPI Products into any third party code;
(d) assign, distribute, license, sell, charge, commercially exploit, or otherwise deal in or encumber the CAP HPI Products;
(e) use the CAP HPI Products on behalf of or make them available to any third party including any of Your affiliated or group companies;
(f) make available online all or part of the CAP HPI Products through the Internet, or any intranet; and/or
(g) remove or alter any copyright or other proprietary notice on any of the CAP HPI Products.
5.2. You shall indemnify and keep indemnified CAP HPI and its directors from and against any and all losses, damages, claims, costs and expenses incurred or suffered by CAP HPI as a result of any breach of Conditions 3, 5, or 6 and/or any other unauthorised use or disclosure of the CAP HPI Products by You or by any party gaining access to the CAP HPI Products as a result of Your act or omission.
5.3. Without prejudice to the provisions of Condition 5.1, all rights not expressly granted to You under the Contract are reserved to CAP HPI.
5.4.1. You acknowledge and agree that any CAP HPI Data provided to You may only be used by You for the purposes of appraising, or verifying the current status of, motor vehicles or other assets prior to selling, purchasing or processing such motor vehicles or other assets in the ordinary and lawful course of Your business (the "Purpose"). You agree that You will treat all CAP HPI Data in strict confidence and that except for the Purpose, You will not use the CAP HPI Data or any part of it nor have any right over or access to it. In particular (and without prejudice to the generality of the foregoing) You shall not resell or (save under a statutory duty or pursuant to any court order) disclose or supply any of the CAP HPI Data, including but not limited to Model Variant Code, to any third party. You undertake to apply to all CAP HPI Data no lesser security measures and degree of care than those which You apply to Your own confidential or proprietary information and which You warrant as providing adequate protection of such information from unauthorised disclosure, copying or use.
5.4.2. In certain circumstances We are authorised by Driver and Vehicle Licensing Agency (“DVLA”) to allow disclosure of the Vehicle Identification Number (“VIN”) as part of a trade check. Disclosure to You of a VIN is only permitted for the Purposes as defined in Condition 5.4.1 above. Should We become aware of any misuse associated with disclosure of the VIN, or are so advised by the DVLA, We reserve the right to remove this facility with immediate effect and without further notice and/or terminate this agreement in accordance with Condition 12.3 below.
5.4.3. The VIN is disclosed to assist in confirming the identity of the vehicle by validating that the vehicle registration mark searched relates to the correct vehicle or to confirm a correct VIN to be compared to the VIN displayed on the relevant vehicle. You may display the VIN on the vehicle search report / certificate, recorded within the application modules to handle vehicle inventory, recorded on the vehicle inventory, stock report, ledgers and customer database / service record and/or included in information disclosed to vehicle purchaser / owner, dealership staff, sub-contractors and auditors, but not otherwise and only providing that such use is always in accordance with the Purpose as defined in Condition 5.4.1 above.
5.4.4. We reserve the right to undertake spot check audits relating to the use and storage of the CAP HPI Data (including but not limited to VIN data released by the DVLA), and monitor usage volumes or patterns and respond to any indication of misuse or abuse with immediate termination of access. You must take reasonable steps to ensure measures are in place to stop unauthorised VIN disclosure.
5.4.5. You must not retain VIN data for longer than necessary nor use it for unauthorised purposes nor must You disclose the full VIN to third parties beyond the terms of Your agreement with us.
5.4.6. Data Caching is not permitted unless specifically authorised in advance in writing by CAP HPI in accordance with the following DVLA requirements:
18.104.22.168.1. For a limited period of 24 hours only, to allow multiple hits against a single record as part of a continuous enquiry; or
22.214.171.124.2. for a limited period where it is necessary to retain the results of a data record for auditing purposes / contractual issues. The data must be held in archive records and must only be retained as long as necessary for this purpose, You must not use the data to fulfil further enquiries or transactions not related to the original enquiry.
5.5 Use of the CAP HPI Data to create an alternative database is strictly prohibited.
5.6 You agree to destroy any CAP HPI Data held by You immediately where requested to do so by us.
5.7 You shall indemnify Us immediately upon demand against all costs (including reasonable legal costs), claims, damages, demands and expenses arising directly or indirectly out of any claim by a third party which arises in connection with the use of the Services or the CAP HPI Data by You in breach of these Terms and Conditions or the Contract or which is wholly or partly attributable to Your negligence or that of Your servants or agents.
6.1 You shall keep secure and confidential and only use for the purposes permitted under the Contract, the CAP HPI Products.
6.2 Neither You nor We may disclose the terms of the Contract to any other person, except to Your or Our (as the case may be) personnel whose duties reasonably require such disclosure on condition that You or We (as the case may be) ensure that each such person to whom such disclosure is made: (a) is informed of the obligations of confidentiality under these Conditions; and (b) complies with those obligations as if they were bound by them. Notwithstanding the foregoing, We may disclose the terms of the Contract to a public or regulatory authority such as the police if so requested in order to aid any ongoing investigations by such public or regulatory authority, We may also disclose the terms of the Contract if required to do so under relevant laws and regulations.
6.3 You shall further keep secure and confidential any financial or other business information relating to CAP HPI and/or its clients or suppliers that may be disclosed to You (“CAP HPI Confidential Information”).
6.4 You shall permit access to the CAP HPI Confidential Information only to those of Your employees who need to know the same in relation to Your permitted use of the CAP HPI Products, and shall ensure that all such persons are (a) made fully aware of the confidentiality obligations of the CAP HPI Confidential Information; and (b) complies with those obligations as if they were bound by them.
6.5 Conditions 6.3 and 6.4 shall not apply to CAP HPI Confidential Information which:
(a) is lawfully in Your possession prior to disclosure by CAP HPI;
(b) becomes publicly known, otherwise than as a consequence of a breach of this Contract or being revealed in court;
(c) is disclosed to a third party pursuant to written authorisation from CAP HPI; and/or
(d) is received from a third party without breach of any other relevant confidentiality obligation.
7. IP Rights
7.1 No IP Rights in the CAP HPI Products shall transfer to You under the Contract.
7.2 You agree that all and any intellectual property rights comprised in any CAP HPI Products or CAP HPI Data, Our trade names and service marks, or any other aspect of the CAP HPI Services provided to You (including but not limited to copyright, database right and rights of confidence), shall, insofar as they belong to us, remain Our exclusive property. No intellectual property rights in any of the foregoing are transferred or licensed to you, except as expressly provided in these Conditions. You also agree that the copyright, database right, property right, and other intellectual property rights in any information or data relating to the Vehicle or any asset, including but not limited to VRM, VIN, and mileage information, which You provide to Us as part of the CAP HPI Services or as part of the usage of CAP HPI Products or will become Our property when such information is captured by, stored in, or entered into Our database or systems, and that We will be storing any such information and be reusing the same in the course of Our business including for the future provision of Our services or products.
7.3 You shall promptly notify CAP HPI in writing of any unlicensed use of all or part of the CAP HPI Products, which comes to Your attention, whether by You or Your employees, agents, consultants or affiliated or group companies, or any third party.
7.4 If any third party makes any IP Claim, or notifies You of its intention to make an IP Claim, against You then You shall:
(a) as soon as reasonably practicable, give written notice of the IP Claim to CAP HPI, specifying the nature of the IP Claim in reasonable detail and providing any documentation received by You in relation to the IP Claim;
(b) not make any admission of liability, agreement, settlement or compromise in relation to the IP Claim without CAP HPI’s prior written consent;
(c) give to CAP HPI and its professional advisers access and all reasonable assistance as CAP HPI may from time to time require in relation to the IP Claim; and
(e) at CAP HPI’s request, give to CAP HPI the exclusive control and right to defend any IP Claim and make settlements in relation to an IP Claim at its own discretion.
7.5 If any IP Claim is made, or in CAP HPI’s reasonable opinion is likely to be made, against You, CAP HPI may, at its sole option and expense:
(a) procure for You the right to continue using the CAP HPI Product (or any part of the CAP HPI Product as the case may be) in accordance with the terms of the Contract;
(b) modify the CAP HPI Product so that it ceases to be infringing; and/or
(c) replace the CAP HPI Product with non-infringing software or data.
8 Fees, Billing, and Payment
8.1 You shall pay the Fees for the CAP HPI Products.
8.2 All payments for the Fee or all other charges and sums payable by You (plus VAT) are due (without any set-off or other deduction) immediately by the Commencement Date.
8.3 If We provide any services or products to You in addition to those CAP HPI Products specified in the Contract and for which any charge, fees or additional fees are payable, We shall do so subject to these Terms and Conditions (and any other standard terms applicable to those services as may be amended or replaced from time to time) and they are payable at Our standard rates and/or charges from time to time as set out in Our standard price list, as applicable.
8.4 All Our charges, Fees, and additional fees are exclusive of any Value Added Tax (“VAT”), for which You shall be additionally liable at the applicable rate from time to time.
8.5 You agree that to the extent applicable, You shall be solely responsible for paying any and all additional bank charges including but not limited to bank processing fees, foreign exchange fees, foreign exchange fluctuations, and increases in taxes.
8.6 If payment of any of Our charges, Fees, dues, or additional fees is not made on the due date, We shall be entitled, without limiting any other rights We may have, to charge You interest (both before and after any judgement) on unpaid sums at the rate of 3% per annum above the Barclays Bank plc base rate from time to time accruing on a daily basis from the due date until full payment in cleared funds is made.
8.7 Without prejudice to CAP HPI's other rights, if You fail to pay any invoice, charges, Fees, or dues by the due date, CAP HPI shall be entitled to:
(a) under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended) to claim debt recovery costs and interest from the due date for payment accruing on a daily basis, until payment is made;
(b) not supply or suspend the supply of the CAP HPI Product; and/or
(c) terminate the Contract on written notice.
9 Warranty and Liability (limitations and exclusions)
9.1 CAP HPI warrants that it shall use reasonable care at all times in generating, compiling, providing and publishing the CAP HPI Products. Except as otherwise expressly agreed to, provided for, or stated in these Terms and Conditions, all other warranties, terms, conditions and obligations, express or implied or otherwise, are hereby excluded to the fullest extent permitted by law. In particular, but without limitation of the foregoing, all CAP HPI Products are provided on an “as-is” basis without any warranty as to accuracy, suitability, fitness for a particular purpose or otherwise. Further, without limitation of the foregoing, except as otherwise expressly agreed to, provided for, or stated in these Terms and Conditions, We exclude any representation, condition or warranty, express or implied or otherwise, that the operation of the CAP HPI Services will be uninterrupted, or will be suitable for Your purposes.
Basis of exclusion of liability
9.2 You accept that estimates of vehicle values, running costs and other data and information contained within the CAP HPI Products are calculated by reference to third party data and/or market intelligence information which may be inaccurate, may alter or may be affected by circumstances that were not apparent at the time of preparation of the data and that which We do not have full control over. In addition, used vehicle valuations are a guide price only, and many other variables outside of Our control determine the actual sale price. Furthermore, the CAP HPI Data We supply to You when providing the CAP HPI Products includes a large amount of information which has been supplied to Us voluntarily by third parties over whom We have no control, such as the police, the DVLA, insurance and finance companies and those involved in the motor industry; the volume and the nature of the data on Our database makes it impractical for Us to verify it and, if We were to attempt to do so, We would only be able to offer Our services at a significantly increased cost; We provide the CAP HPI Products at a price that does not reflect any benefit You may obtain from them, including any profit that You may make or the amount of any credit that You may give. Accordingly, You accept and agree that the provisions of this Condition 9 represent a fair and reasonable apportionment of risk having regard to the CAP HPI Products and the Fee, and We accordingly consider it reasonable (and You agree) for Us to limit and exclude Our liability on the basis set out in this Condition.
9.3 You represent and warrant to Us the following:
9.3.1 that any information You provide to Us in the course of the performance of this Contract and/or in the course of the provision of the CAP HPI Products is accurate and complete;
9.3.2 that You have taken all reasonable precautions and exercised all due diligence and acted with professional diligence (such term as construed in accordance with The Consumer Protection from Unfair Trading Regulations 2008) when making the relevant Vehicle purchase, sale, or transactions.
Exclusion of Liability in General
9.4 Subject to Condition 9.7, CAP HPI shall not in any circumstances be liable to You for:
(a) loss or damage arising as a result of any error, omission or inaccuracy in any part of the CAP HPI Products where such error, omission or inaccuracy arises as a result of use of third party content or market intelligence or a reasonable interpretation of such third party content or market intelligence;
(b) loss or damage arising from Your failure to use the CAP HPI Products strictly in accordance with the terms of the Contract;
(c) loss of profits, loss or corruption of data or information and/or loss of contracts;
(d) any kind of special, indirect, consequential or pure economic loss whether arising from negligence, breach of contract or howsoever caused and whether or not You notified CAP HPI of the possibility of the same;
(e) any loss of business, capital, profit, reputation or goodwill whether caused by us, Our servants or agents arising out of or in connection with the Contract or its subject matter.
(f) any loss or damage arising from Your failure to ensure software compatibility with Your hardware and/or other software or Your failure to carry out appropriate virus checks;
(g) third party claims of any kind; or
(h) any data inaccurately or incompletely presented via a third party system,
Limitation of Liability in General
9.5 Subject to Condition 9.7, if CAP HPI is held to be liable to You for any reason, Our entire liability in respect of any cause of action arising out of or in connection with the Contract or its subject matter (whether in contract, tort (including negligence) or for breach of statutory duty or in any other way) shall be limited to the Maximum Contract Liability Limit.
9.6 Unless otherwise agreed to between CAP HPI and You in writing, We shall not be liable for any claims or series of claims (“Claim”) arising under or in connection with the Contract or in relation to its subject matter unless written notice of the Claim is given to Us either within 3 months from when You became aware of the circumstances giving rise to such a Claim or within 3 months of such time when You ought to have reasonably become aware of such circumstances and in any event within 1 (one) year following the date of the first provision of the CAP HPI Product giving rise to the Claim.
9.7 Nothing in this Condition 9 shall exclude or limit CAP HPI’s liability for death or personal injury resulting from CAP HPI's negligence or for fraud or fraudulent misrepresentation.
9.8 You agree that You are best placed to evaluate, and insure against, any loss You may suffer in connection with the CAP HPI Products provided under this Contract.
9.9 The parties agree that each and every provision of this Condition 9 are severable for the purposes of Condition 14.7, and that each and every provision of this Condition 9 shall be construed as a separate limitation and/or exclusion that shall apply and survive even if for any reason any one or other of the said provisions is held inapplicable, unenforceable, or unreasonable in any circumstances.
9.10 The exclusions and limitations of liability contained in these Conditions shall apply for the benefit of CAP HPI and any person or business supplying any part of the CAP HPI Data to Us whether or not mentioned in the Contract, these Terms and Conditions, or in any marketing or descriptive documentation relating to the CAP HPI Products.
10.1 In relation to its obligations under the Contract, each party warrants that it shall comply with the Bribery Act 2010 and its own anti-bribery and anti-corruption policies. On request, each party shall promptly supply to the other party a copy of its anti-bribery and anti-corruption policies.
10.2 Each party shall promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by or on behalf of the other party in connection with the performance of the Contract.
11 Data Protection and Information Security
11.1 CAP HPI and You agree that the provisions set out in Schedule 1 – data protection schedule attached hereto shall bind the parties with respect to their respective data protection and information security obligations.
12 Term and Termination
12.1 Either party may terminate the Contract immediately by notice in writing if:
(a) the other has committed a breach of the Contract and, in the case of a breach by CAP HPI capable of remedy, CAP HPI has failed to remedy such breach within 14 days of a written notice requiring it to do so; o
(b) the other is unable to pay its debts as they fall due, or is the subject of a bankruptcy petition, or enters into compulsory or voluntary liquidation, or compounds with or convenes a meeting of its creditors, or has a receiver, manager, administrator or administrative receiver appointed over its assets, or initiates or is the subject of any insolvency, winding up, or dissolution proceedings, or ceases for any reason to carry on business.
12.2 CAP HPI may terminate the Contract immediately by notice in writing to You if there is a change of control so that You are controlled by a CAP HPI competitor or You control a CAP HPI competitor. For the purposes of this Condition 12.2, ‘control’ means the ability to direct the affairs of another whether by virtue of the ownership of shares, contract or otherwise and ‘CAP HPI competitor’ means any other supplier of automotive data, products, and/or solutions. Subject to any obligations of confidentiality or applicable laws, regulations or rules, You shall promptly notify CAP HPI in writing of any such change of control.
12.3 Without limiting any of the forgoing provisions, CAP HPI may at any time, without any liability to You, terminate the Contract immediately by notice, or without notice suspend any CAP HPI Services and/or CAP HPI Products if:
12.3.1 any charges due from You under the terms of the Contract are unpaid;
12.3.2 You use any CAP HPI Data or any CAP HPI Products for any purpose not expressly permitted in the Contract or in these Terms and Conditions;
12.3.3 You are (in Our reasonable opinion) otherwise in material breach of the Contract or any of these Terms and Conditions;
12.3.4 You undergo a change of ownership to which We reasonably object; or
12.3.5 any of Your use or usage of Your system(s) or software has or becomes to have (as reasonably determined by CAP HPI) an adverse impact or adverse effect on Us or any of Our customers, including but not limited to adverse impacts or adverse effects on Our or Our customer’s systems, software, business or otherwise;
12.4 Suspension of the CAP HPI Services or CAP HPI Products by Us pursuant to Condition 12.3 above shall not affect any of Your existing or accrued obligations under the Contract, including any obligation to make any payment(s).
12.5 Termination or expiry of the Contract, however arising, shall be without prejudice to the rights and obligations of CAP HPI and You accrued prior to termination. Notwithstanding termination or expiry of the Contract, however arising, the following provisions shall survive and shall remain in force: Conditions 5 (Licence Restrictions and Permitted Use), 6 (Confidentiality), 7 (IP Rights), 8 (Fees, Billing, and Payment), 9 (Warranty and Liability), 11 (Data Protection and Information Security), 12 (Term and Termination), and 14 (General).
13 Force Majeure
13.1 Force Majeure means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under the Contract and includes war, terrorism, riot or civil commotion, strikes, lock outs or other industrial action, acts of or restrictions imposed by government or public authority, failures of supply of services, software or hardware systems or networks, explosion, fire, flood, natural disaster and breakdown or failure of equipment.
13.2 A party will not be liable if delayed in or prevented from performing its obligations under the Contract due to Force Majeure, provided that it promptly notifies the other of the Force Majeure. If, due to Force Majeure, a party is unable to perform a material obligation and/or is delayed in or prevented from performing its obligations for more than 30 days, either party may terminate the Contract on notice. The provisions of this Condition 13.2 shall not be relied upon in relation to the inability to pay.
14.1 You shall not, without the prior written consent of CAP HPI, assign, sub-license, sub-contract or otherwise transfer to any third party any of Your rights, benefits, or obligations under the Contract. CAP HPI shall be entitled to assign its rights and/or obligations under the Contract.
14.2 Each party shall, to the extent necessary in relation to its activities as contemplated by this Contract, at all times: i) maintain all licences and registrations under any applicable laws, including the Consumer Credit Legislation; and ii) comply with all applicable laws, including the Consumer Credit Legislation.
14.3 We operate a policy of continually reviewing and developing the information services We provide, and accordingly We reserve the right, provided that We give You reasonable notice, to make any changes to any of the CAP HPI Products, or discontinue or substitute any of the CAP HPI Products or parts thereof, at any time where We deem this to be necessary to comply with any applicable statutory requirements, or in the event that such CAP HPI Products or parts thereof are provided by a third party and that third party withdraws, discontinues or otherwise terminates provision of those services to us, or which in Our reasonable opinion do not materially affect the nature or quality of the CAP HPI Products. We may also vary the contents of Our database from time to time in order to improve or modify CAP HPI Products features.
14.4 We may from time to time amend the Contract and You agree to Us doing so by varying or adding to any of these Terms and Conditions by giving You reasonable prior notice (including but not limited to via email or electronic communication), such notice shall also be given via [http://extras.cap-hpi.com/malta-odometer-check-terms-and-conditions] where current Terms and Conditions can also be viewed.
14.5 No term of the Contract will be enforceable by any third party by virtue of the Contracts (Rights of Third Parties) Act 1999, and no person who is not a party to the Contract shall have any rights under it.
14.6 Notices to Us under the Contract and/or these Terms and Conditions shall be in writing and sent to Our Company Secretary at Our registered address by mail. Notices to You under the Contract and/or these Terms and Conditions may be sent to You through email or electronic means of communication or to the address that Your invoices are sent by second class mail.
14.7 If any Condition (including any distinct sub-condition) of the Contract is held to be illegal, invalid, void or unenforceable, it shall be severed from the remaining provisions of the Contract which shall continue in full force and effect.
14.8 Failure or neglect by Us to enforce any provision of the Contract shall not be construed nor shall be deemed to be a waiver of Our rights under the Contract and shall not prejudice Our rights to take subsequent action. No waiver by Us of any breach of the Contract by You will be considered as a waiver of any subsequent breach of the same or any other provision or type.
14.9 The Contract (incorporating these Terms and Conditions) contains the entire agreement between CAP HPI and You in relation to the supply by CAP HPI to You of the CAP HPI Products. It supersedes any and all prior agreements, representations, arrangements or undertakings in relation to such subject matter, provided that nothing in this Condition 14.9 shall exclude or limit liability of either party for fraudulent misrepresentation. In particular, but without limiting the generality of the foregoing, You warrant and represent that in entering into the Contract You have not relied upon any statement of fact or opinion made by Us or Our officers, servants or agents which has not been included expressly in the Contract. The terms of the Contract may only be varied by written agreement of the parties or in accordance with Condition 14.4 above.
14.10 You agree that You will (at Our cost and expense) do or procure to be done all such further acts and things and execute or procure the execution of all such other documents as We may from time to time reasonably require for the purpose of giving to Us the full benefit of any rights and benefits granted to Us under these Terms and Conditions.
14.11 The Contract shall be governed by and interpreted in accordance with English law, and You and CAP HPI hereby submit to the exclusive jurisdiction of the English courts.
SCHEDULE 1 – Data Protection Schedule
The terms "personal data", "controller", "processor", "processing", "data subject", shall have the meanings ascribed to them under the Data Protection Law, as applicable.
"CAP HPI Data Retention Policy" means the data retention policy in relation to Controller Products set out at Annex A below as updated by CAP HPI from time to time (the most up-to-date version could be found at www.cap-hpi.com);
“Controller Products” means the products listed under Annex B below (controller products data processing particulars) for which CAP HPI is the controller with respect to the personal data processing involved.
“Customer” means You.
“Data Protection Schedule” means this data protection schedule.
"Supervisory Authority" means any EU competent data protection authority to whose jurisdiction the Customer is subject in relation to the Customer Personal Data and where CAP HPI provides the Processing Services.
1. The Customer and CAP HPI hereby acknowledge and agree that Annex B below (Controller Products Data Processing Particulars) is an accurate description of the data processing particulars with respect to Controller Products.
2. The Customer and CAP HPI shall each process the personal data as set out in Annex B - Controller Products Data Processing Particulars. Each party acknowledge that the factual arrangement between them dictates the role of each party in respect of the Data Protection Law. Notwithstanding the foregoing, the parties envisage that, in respect of the personal data involved, as between the Customer and CAP HPI for the purposes of Controller Products under this Contract, both CAP HPI and the Customer are each deemed to be the controller. Nothing within this Data Protection Schedule relieves each party of its own direct responsibilities and liabilities under Data Protection Law;
3. The Customer, acting as data controller in respect of the Controller Products, hereby warrants and represents:
3.1 that all processing of personal data as contemplated in Annex B - Controller Products Data Processing Particulars (“Controller Products Personal Data”) will be in compliance with all Data Protection Law, and that the processing of such personal data by CAP HPI in accordance with this Contract will not breach Data Protection law;
3.2 that Controller Products Personal Data provided to CAP HPI are accurate and will be updated to ensure continued accuracy as and when required;
3.3 that the Customer has notified data subjects of any applicable period for which Controller Products Personal Data or any element of it will be stored by CAP HPI including, if applicable, as set out in the CAP HPI Data Retention Policy in Annex A below, and that the Customer has the right to provide Controller Products Personal Data to CAP HPI and has provided data subjects with all necessary information and data protection notices on or in connection with the collection of such Controller Products Personal Data from data subjects including, but not limited to, the supply of Controller Products Personal Data to CAP HPI and details of the purposes and legitimate interests for which such Controller Products Personal Data will be processed by CAP HPI including as set out in the CAP HPI Data Retention Policy in Annex A below;
3.4 that with the exception of personal data as contemplated in the Controller Products Data Processing Particulars, the Customer agree not to provide CAP HPI with any other personal data without first notifying CAP HPI and signing with CAP HPI separate written terms in relation thereof. Without limiting the generality of the forgoing, the Customer also warrants and represents i) that the Customer will not provide CAP HPI with nor request CAP HPI to process the types and categories of personal data listed, defined, or referenced to in Articles 8 - 10 of the Regulation (collectively “High Risk Personal Data”), and ii) that the Customer will not provide CAP HPI with nor pass to CAP HPI personal data for which CAP HPI has no knowledge of, is unaware of, or which is not explicitly provided for under this Data Protection Schedule, and that where applicable, the Customer will not enter any personal data into free text fields embedded in relevant CAP HPI Products and will not incorporate any personal data into any attachments and/or images that are to be uploaded into CAP HPI’s system(s) from time to time;
3.5 that the Customer shall, and shall procure its employees, contractors, and/or agents to keep secure the login credentials used to access to the CAP HPI Products, and shall be liable for the access to the CAP HPI Products through such login credentials. The Customer further warrants that it shall promptly notify CAP HPI of any unauthorised use of any login credentials, or other breach of security, including loss, theft or unauthorised disclosure of login credentials, and that the CAP HPI Products shall only be accessed in accordance with the licenced permissions as agreed by CAP HPI, and Customer shall maintain a written, up-to-date list of current employees who use the CAP HPI Products and provide such list to CAP HPI within 10 days of CAP HPI’s written request at any time; and
3.6 that the Customer shall at its own cost, and shall procure its employees, contractors, and/or agents to do or procure to be done all such further acts and things as may be reasonably necessary from time to time to ensure either party’s compliance with Data Protection Law, including but not limited to, as applicable, the prompt installation of and/or the upgrading to the latest CAP HPI release or versions of the relevant CAP HPI software or systems from time to time.
4. The Customer warrants and represents that it shall not breach Data Protection Law, and shall not, whether by act or omission, cause CAP HPI to breach any of its obligations under Data Protection Law. The Customer further warrants and represents that it shall comply with the obligations set out in this Data Protection Schedule.
5. The Customer shall, immediately on demand, fully indemnify CAP HPI and keep CAP HPI fully and effectively indemnified against all costs, claims, demands, expenses (including legal costs and disbursements on a full indemnity basis), losses (including indirect losses, loss or corruption of data, loss of reputation, goodwill and profits), actions, proceedings and liabilities of whatsoever nature arising from or incurred by CAP HPI or its affiliates in connection with or in relation to any failure of the Customer or any third party appointed by the Customer to comply with any of the provisions of this Data Protection Schedule and/or Data Protection Law.
6. To the extent of any conflict exists between this Data Protection Schedule and any other parts of the Contract, this Data Protection Schedule shall prevail, govern, and supersede. This Data Protection Schedule and the obligations hereunder shall survive the termination or expiry of the Contract however arising or effected.
7. Notwithstanding anything to the contrary in the Contract, CAP HPI’s aggregate liability to Customer under this Data Protection Schedule and in relation to all of CAP HPI’s data protection obligations under Data Protection Law shall be limited to and shall not exceed, in aggregate and for the entire duration of the Contract and thereafter, 100% of the Fees paid by the Customer to CAP HPI.
8. Subject to Clause 12, to the extent that the either party (the Claiming Party) has an entitlement under Data Protection Law to claim from the other party (the Compensating Party) compensation paid by the Claiming Party to a data subject as a result of a breach of Data Protection Law to which the Compensating Party contributed, the Compensating Party shall be liable only for such amount as it directly relates to its responsibility for any damage caused to the relevant data subject. For the avoidance of doubt the Compensating Party shall only be liable to make payment to the Claiming Party under this Clause 13 upon receipt of evidence from the Claiming Party, to the Compensating Party's reasonable satisfaction, that clearly demonstrates the Compensating Party:
8.1 where CAP HPI is the Compensating Party only, that CAP HPI has acted outside of the instructions of the Customer; and
8.2 has breached Data Protection Law; and
8.3 that such breach contributed (in part or in full) to the harm caused and entitling the relevant data subject to receive compensation in accordance with Data Protection Law; and
8.4 the proportion of responsibility for the harm caused to the relevant data subject which is attributable to the Compensating Party.
8.5 If the parties fail to agree in accordance with this Clause 13 then the parties shall resolve the dispute as per the dispute resolution mechanism (if any) as stipulated in the Contract.
Information CAP HPI collects and processes about You
9. You acknowledge that CAP HPI collects and processes personal data about You and/or Your employees, staff, or personnel (“Your Personal Data”) in the normal course of business for the purposes of providing You CAP HPI Products and for fulfilling CAP HPI’s obligations under the Contract and for pursing its other legitimate interests. For example, CAP HPI collects and processes Your Personal Data for the purposes of providing and conducting customer service, customer support, technical support, billing and payment services, financial audit and record keeping, and marketing of similar products or services among other things. CAP HPI is the controller in respect of Your Personal Data it collects and processes.
In addition, and without limiting the generality of the foregoing, We obtain and hold vehicle, asset, and related data from many sources and use this data for the legitimate interest(s) of protecting those utilising Our services or products and the owners or keepers of vehicles on the CAP HPI registers and for the legitimate interest(s) of preventing vehicle related fraud and crime (in cooperation with public authorities such as the police). Accordingly, based on the aforementioned legitimate interest(s), We may be disclosing from time to time relevant information about You collected by Us including but not limited to Your name, address and details of Your usage of Our services or products and any parts of Your Personal Data to any person or public authority to whom We reasonably consider that it would be expedient to do so for the purposes of preventing, detecting or discouraging fraud or crime, apprehending or prosecuting offenders or offences, and recovering stolen vehicles or other assets or property. In particular, and without limiting the generality of foregoing, We may be disclosing from time to time any such information about You to i) a person claiming to be the owner of the Vehicle against which You have requested CAP HPI Products, or ii) the police or other law enforcement or public authorities.
For more information on how We collect, store, process, share, and retain Your Personal Data, please see the CAP HPI privacy notice at www.cap-hpi.com and as updated by Us from time to time (“Privacy Notice”). By agreeing to this Contract or by using the CAP HPI Products, or by being a customer of CAP HPI, You acknowledge that You have read and understood the Privacy Notice.
ANNEX A - CAP HPI DATA RETENTION POLICY
CAP HPI proactively deletes personal data at the end of the relevant data retention period as set out below unless personal data is required to be retained for a longer period under applicable law or at the request of a court or regulatory body. This data retention policy may be updated by CAP HPI from time to time, the most up-to-date version could be found at www.cap-hpi.com.
The data retention periods are as follows:
Reason for Retention
Vehicle Registration Marks (“VRM”) and Vehicle Identification Number (“VIN”)
VRM: until 100 years after the VRM is no longer registered and/or active.
VIN: until 100 years after the vehicle to which the VIN relates to is either registered as scrapped by the DVLA or is known to CAP HPI as being scrapped (whichever shall be the later).
Personal data relating to Customer or Customer staff and personnel
Until 7 years after the termination of the Contract.
ANNEX B – CONTROLLER PRODUCTS DATA PROCESSING PARTICULARS
Categories of data subjects
CAP HPI Products
Customers provide CAP HPI VRM and/or VIN, and with this input data CAP HPI provides back a mileage and/or odometer information service of the vehicle relating to the VRM/VIN.
CAP HPI also captures personal data relating to the Customer and/or Customer’s employees, staff, and personnel, and processes this data for the purposes of fulfilling CAP HPI’s obligations under the Contract and to provide the CAP HPI Products.
Being the data controller, CAP HPI will process and retain the personal data as per the CAP HPI Data Retention Policy and until when the legitimate interests CAP HPI has in processing such personal data no longer exist.
Customers provide CAP HPI VRM and/or VIN, and with this input data CAP HPI provides back a mileage and/or odometer information service of the vehicle relating to the VRM/VIN.
CAP HPI also captures personal data relating to the Customer and/or Customer’s employees, staff, and personnel, and processes this data for the purposes of fulfilling CAP HPI’s obligations under the Contract and to provide the CAP HPI Products.
Vehicle Registration Mark (“VRM”); Vehicle Identification Number (“VIN”); Customer or Customer staff and personnel contact information.
Vehicle keepers; Customer staff and personnel