Corporate Terms And Conditions

Interpretation

Definitions:

Interpretation:

Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:

is a reference to it as amended, extended or re-enacted from time to time; and

shall include all subordinate legislation made from time to time under that legislation or legislative provision.

Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

A reference to writing or written includes email.

Supply of services

Subject to the Customer paying the Charges in accordance with clause 6 and the restrictions set out in this clause 2, RED shall supply the Training Services to the Customer from the Training Services Start Date (where the Services include Training Services) and the Driver Risk Management Services to the Customer from the Driver Risk Management Services Start Date (where the Services include Driver Risk Management Services), in each case subject to and in accordance with this Contract.

In supplying the Services, RED shall:

perform the Services with reasonable care and skill;

perform the Services in accordance with the relevant service description set out in Schedule 1 in all material respects;

ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;

comply with all applicable laws, statutes, regulations and codes from time to time in force, provided that RED shall not be liable under this Contract if, as a result of such compliance, it is in breach of any of its obligations under this Contract;

take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that RED may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination or expiry of this Contract; and

be entitled to vary the Training Date and start time by providing notice to the Customer by telephone, email or post at any time. RED will use reasonable endeavours to provide the Training Services on the Training Date and at the agreed start time but, in the event of a course cancellation imposed by RED, the Customer will be offered the next available Training Date.

Where RED is supplying Driver Risk Management Services:

subject to the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, RED hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Platform during the Subscription Term solely for the Customer’s internal business operations;

RED shall not be liable for failure to comply with clauses 2.2.1 – 2.2.3 (inclusive) to the extent that any non-conformance of the Platform is caused by use of the Platform contrary to RED’s instructions, or modification or alteration of the Platform by any party other than RED or RED’s duly authorised contractors or agents. If the Platform does not comply with clauses 2.2.1 – 2.2.3 (inclusive), RED will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of clauses 2.2.1 – 2.2.3 in respect of the Driver Risk Management Services.

RED:

does not warrant that:

the Customer’s use of the Driver Risk Management Services will be uninterrupted or error-free; or

that the Driver Risk Management Services, Deliverables and/or the information obtained by the Customer through the Driver Risk Management Services will meet the Customer’s requirements (but shall use reasonable endeavours to ensure that any Deliverables in relation to the Training Services are in line with current legislative and regulatory requirements); or

the Platform or the Driver Risk Management Services will be free from vulnerabilities or viruses.

is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Driver Risk Management Services and Deliverables may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

RED shall follow its standard archiving procedures for Customer Data as may be amended by RED in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against RED shall be for RED to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by RED in accordance with its standard archiving procedure. RED shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party except those third parties sub-contracted by RED to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.

RED shall use commercially reasonable endeavours to make the Platform available 24 hours a day, seven days a week, except for:

planned maintenance carried out during the maintenance window of 9pm to midnight UK time; and

unscheduled maintenance performed outside normal business hours, provided that RED has used reasonable endeavours to give the Customer at least 6 normal business hours’ notice in advance.

RED will, as part of the Driver Risk Management Services and at no additional cost to the Customer, provide the Customer with customer support services during normal business hours where the Customer is unable to access the Platform.

The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

Customer’s obligations

The Customer shall:

co-operate with RED in all matters relating to the Services;

comply with all applicable laws and regulations with respect to its activities under this Contract;

provide, for RED, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by RED or any of them;

provide, in a timely manner, such information as RED may reasonably require, and ensure that it is accurate and complete in all material respects (including but not limited to Customer Data, security access information and configuration services); and

where RED is providing the Training Services:

provide roadworthy and suitably insured vehicle (for business use) for the purposes of receiving practical on-the-road driver training (except where other arrangements have been made in writing); and

ensure that any trainees attending on its behalf are not under the influence of drink and/or drugs or any other substances. Any attendees who do not comply with this requirement will not be allowed to take part in the Training Services and the Training Services will be cancelled with immediate effect and no refund shall be offered.

Where RED is providing Driver Risk Management Services, the Customer shall:

not access, store, distribute or transmit any viruses, or any material during the course of its use of the Platform that:

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

facilitates illegal activity;

depicts sexually explicit images;

promotes unlawful violence;

is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

is otherwise illegal or causes damage or injury to any person or property;
and RED reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

not:

except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or

attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or

access all or any part of the Platform in order to build a product or service which competes with the Platform; or

use the Platform to provide services to third parties; or

subject to clause 9.2, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party; or

attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause 2; or

introduce or permit the introduction of, any virus or vulnerability into RED’s network and information systems.

use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify RED;

ensure that its network and systems comply with the relevant specifications provided by RED from time to time; and

be, to the extent permitted by law and except as otherwise expressly provided in this Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to RED’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

If RED’s performance of its obligations under this Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, RED shall:

not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;

be entitled to payment of the Charges despite any such prevention or delay; and

be entitled to recover any additional costs, charges or losses RED sustains or incurs that arise directly or indirectly from such prevention or delay.

The Customer acknowledges and agrees that:

where RED is unable to provide the Training Services for reasons outside of RED’s reasonable control (for example, trainer illness or unsuitable weather conditions), no refunds or any other compensation will be paid to the Customer and RED will offer an alternative training date as soon as practically possible. In the event of a mechanical breakdown, RED shall provide additional training equal to the amount of time lost due to such mechanical failure;

any variations to Training Date(s) and/or start times will be accepted by RED (subject to Clause 6.9) wherever possible. However, where the Training Services are completely rescheduled RED shall be entitled to pass on any charges made by the DVSA (or any other 3rd party who RED may have engaged in order to deliver some or all of the Training Services) to RED as a result of the rescheduling; and

RED shall not be liable for any practical tests being cancelled by DVSA.

Data protection

The parties shall comply with their data protection obligations as set out in Schedule 2 (Data protection).

Intellectual property

RED and its licensors shall retain ownership of all RED IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.

RED grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to use the Deliverables in the Customer’s business during the term of this Contract.

The Customer grants RED a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Contract for the purpose of providing the Services to the Customer in accordance with this Contract.

Subject to clause 5.6, RED shall indemnify the Customer in full against any sums awarded by a court against the Customer arising out of or in connection with any claim brought against the Customer for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of or in connection with the receipt or use of the Services by the Customer.

The Customer shall indemnify RED in full against any sums awarded by a court against RED arising of or in connection with any claim brought against RED for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by RED.

In no event shall RED, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

a modification of the Driver Risk Management Services, the Platform or Deliverables by anyone other than RED; or

the Customer’s use of the Services or Deliverables in a manner contrary to the instructions given to the Customer by RED; or

the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from RED or any appropriate authority.

Charges and payment

In consideration for the provision of the Services, the Customer shall pay RED the Charges in accordance with this clause 6.

RED shall invoice the Customer for the entire Training Services Charge prior to the Training Services Start Date.

RED shall invoice the Customer for the Driver Risk Management Services as follows:

the Driver Risk Management Services Monthly Charge for each of the first 6 calendar months in the Subscription Term shall be invoiced in full on or before the Driver Risk Management Services Start Date; and

the Driver Risk Management Services Monthly Charge for each subsequent calendar month in the Subscription Term shall be invoiced monthly in advance on the first day of the relevant calendar month.

Payment shall be due on receipt by the Customer of the relevant invoice (unless otherwise agreed between the parties in writing).

RED shall not be obliged to provide any Training Services until the relevant invoice for such Training Services has been paid by the Customer in full (unless otherwise agreed between the parties in writing).

If the Customer fails to make any payment due to RED under this Contract for Driver Risk Management Services by the due date for payment, then, without limiting RED’s remedies under clause 8 (Termination), RED may, without liability to the Customer, suspend all Services until payment has been made in full.

All Charges exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to RED at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

All amounts due under this Contract from the Customer to RED shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

Where bookings for Training Services have been confirmed between the Customer and RED, the Customer may cancel the Training Services. The percentage of the Charges for the relevant Training Services or the fee stated (instead of the Charges), as detailed in the table below, will apply to cancellations/re-scheduled Training Services and/or amendments initiated by the Customer prior to the Training Services being delivered:

All cancellations must be made by the Customer in writing.

Limitation of liability

References to liability in this clause 7 include every kind of liability arising under or in connection with this Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

Nothing in this clause 7 shall limit the Customer’s payment obligations under this Contract.

Nothing in this Contract limits any liability which cannot legally be limited, including but not limited to liability for:

death or personal injury caused by negligence;

fraud or fraudulent misrepresentation; and

breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

Except as expressly and specifically provided in this Contract:

the Customer assumes sole responsibility for results obtained from the use of the Driver Risk Management Services by the Customer, and for conclusions drawn from such use. RED shall have no liability for:

any damage caused by errors or omissions in any information, instructions or scripts provided to RED by the Customer in connection with the Services; or

any actions taken by RED at the Customer’s direction.

all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Contract; and

the Driver Risk Management Services are provided to the Customer on an “as is” basis.

Subject to clause 7.2, clause 7.3 and clause 7.4, each party’s total liability to the other for all loss or damage arising under or in connection with this Contract as a result of any act or omission of a party in a Relevant Period (a Relevant Period being a single period of 12 calendar months, the first beginning on the Effective Date and thereafter each 12 calendar month period beginning on an anniversary thereof) shall not exceed the total Charges paid by the Customer to RED for the Services in that Relevant Period.

Subject to clause 7.2, clause 7.3 and clause 7.4, this clause 7.6 sets out the types of loss that are wholly excluded:

loss of profits;

loss of sales or business;

loss of agreements or contracts;

loss of anticipated savings;

loss of use or corruption of software, data or information;

loss of or damage to goodwill; and

indirect or consequential loss.

Term and termination

The Contract shall commence on the Effective Date and continue, unless terminated earlier in accordance with clause 8.2 or clause 8.3, until:

the Training Services have been completed or twelve (12) months from the Training Services Start Date (whichever is the earliest) when it shall automatically terminate (where the Services include the Training Services only);

the termination of this Contract on the expiry of not less than 30 days prior written notice from either party to the other in respect of the Driver Risk Management Services (where the Services include the Driver Risk Management Services only) Provided that any such notice must expire on the last day of a calendar month and where given by the Customer (but not RED) no earlier than the date which is 6 calendar months after the Driver Risk Management Services Start Date; and

where the Services include the Training Services and the Driver Risk Management Services:

this Contract shall automatically terminate on the completion of the Training Services or twelve (12) months from the Training Services Start Date (whichever is the earliest) where the provision of the Driver Risk Management Services has already been terminated as a result of either party having already exercised its rights to terminate the Driver Risk Management Services;

this Contract shall terminate on the expiry of not less than 30 days prior written notice from either party to the other terminating this Contract in respect of the Driver Risk Management Services where the Training Services have already been completed or twelve (12) months has passed since the Training Services Start Date when the notice is given Provided that any such notice must expire on the last day of a calendar month and where given by the Customer (but not RED) no earlier than the date which is 6 calendar months after the Driver Risk Management Services Start Date;

RED’s obligation to provide the Driver Risk Management Services shall cease on the expiry of not less than 30 days prior written notice of termination from either party in respect of the Driver Risk Management Services where the Training Services have not already been completed when the notice is given Provided that any such notice must expire on the last day of a calendar month and where given by the Customer (but not RED) no earlier than the date which is 6 calendar months after the Driver Risk Management Services Start Date;

completion or expiry of the Training Services or the exercise of any cancellation or termination right in respect of the Training Services shall apply to the Training Services only and shall not terminate this Contract which shall continue in full force and effect in respect of the Driver Risk Management Services; and

termination or cessation of the obligation to provide the Driver Risk Management Services shall apply to the Driver Risk Management Services only and shall not terminate this Contract which shall continue in full force and effect in respect of the Training Services.

Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect (in respect of the Training Services and/or the Driver Risk Management Services) by giving written notice to the other party if:

the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.

Without affecting any other right or remedy available to it, RED may terminate this Contract with immediate effect (in respect of the Training Services and/or the Driver Risk Management Services) by giving written notice to the Customer if:

the Customer fails to pay any amount due under this Contract on the due date for payment; or

there is a change of control of the Customer.

On termination of this Contract for whatever reason:

all licences granted under this Contract shall immediately terminate and the Customer shall immediate cease all use of the Services;

each party shall return and make no further use of any equipment, property or other items (and copies of them) belonging to the other party;

RED may destroy or otherwise dispose of any of the Customer Data in its possession unless RED receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. RED shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by RED in returning or disposing of Customer Data;

the Customer shall immediately pay to RED all of RED’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, RED may submit an invoice, which shall be payable immediately on receipt;

any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect; and

termination or expiry of this Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination or expiry.

Where the Services include the Training Services and the Driver Risk Management Services and:

the Training Services are completed, expire, or are cancelled or any right of termination is exercised in respect of the Training Services but not the Driver Risk Management Services; or

any right of termination is exercised in respect of the Driver Risk Management Services but not the Training Services,

shall apply but only in respect of those parts of the Services so completed, expired, cancelled or terminated (and references in that clause to termination or expiry shall be construed accordingly) and shall not apply so as to prevent or restrict the performance by the parties of their continuing obligations in respect of those parts of the Services not so completed, cancelled or terminated.

General

Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

Assignment and other dealings. Neither party shall assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the other party’s prior written consent.

Confidentiality.

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.3. For the purposes of this clause 9.3, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

Each party may disclose the other party’s confidential information:

to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9.3; and

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.

Entire agreement.

The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Each party acknowledges that in entering into this Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Waiver.

A waiver of any right or remedy under this Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 9.7 shall not affect the validity and enforceability of the rest of this Contract.

Notices.

Any notice given to a party under or in connection with this Contract shall be in writing and shall be:

delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

sent by email to the addresses specified in this Contract Details.

Any notice or communication shall be deemed to have been received:

if delivered by hand, at the time the notice is left at the proper address;

if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 9.8.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

This clause 9.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Third party rights.

Unless it expressly states otherwise, this Contract does not give rise to any rights under this Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.

The rights of the parties to rescind or vary this Contract are not subject to the consent of any other person.

Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England.

Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.