Terms and Conditions

1.   DEFINITIONS
A.   Agreement: these terms and conditions and the Order Form.
B.   Client: the client identified on the Order Form.
C.   Documentation: the applicable specifications, manuals, product data sheets, instructions or other documentation relating to the Products, whether in hardcopy or electronic form.
D.   Hollander: Hollander International Systems Limited a company registered in Scotland with registered number SC211063 and having its registered office at 50 Lothian Road, Festival Square, Edinburgh, EH3 9WJ.
E.   Order Form: the order form containing, amongst other things, details of the Products to be supplied to Client.
F.   Products: all products, including software, and associated services described in the Order Form.
G.   All terms defined in the Order Form have the meaning given to them in the Order Form when used in these Terms and Conditions.

2.   GRANT OF LICENCE 
A.   Risk in the physical media on which the Products are recorded shall pass to Client on delivery. Title in such physical media shall remain with Hollander. Client is responsible for configuring its own systems appropriately to access and use the Products, and unless otherwise agreed in the Order Form, for installing and using the Products.
B.   Hollander grants to Client a personal, non-exclusive, non-transferable limited licence to use the Products in the form provided for Clients’ normal internal business purposes.  Client has no right to grant a sublicense of this licence.
C.   Except to the extent required to be permitted by applicable law, Client shall not (i) sell, transfer or sublicense the Products; (ii) translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of the Products, nor arrange or create derivative works based on the Products; (iii) use the Products for the benefit of any third party; (iv) use, link or interface the Products with any equipment, software, data, network or communications system, in any manner or in connection with any function, not specifically authorised by Hollander; and/or (v) remove any copyright notice on the Products.
D.   Client will provide Hollander with information required by Hollander for Client’s registration to allow access to the Products.  Client will provide true, accurate and complete information and will promptly notify Hollander of any changes. Client shall be solely responsible for maintaining the confidentiality of the log in credentials for the Products and shall notify Hollander immediately of any known or suspected unauthorised use of its log-in credentials.
E.   All rights not expressly granted hereunder by Hollander are expressly reserved to Hollander and/or its licensors.
F.   Any modification of the Products by Client shall be a material breach of the Agreement and Client assigns any right, title and interest in such modification to Hollander.

3.   TERM OF AGREEMENT  
A.   This Agreement shall commence on the earlier of the date the Products are first used by Client or the Start Date set out in the Order Form, and shall, subject to earlier termination in accordance with its terms, continue for the Initial Term stated on the Order Form.
B.   After the Initial Term, this Agreement shall automatically renew for consecutive terms (each, a “Renewal Term”) of one (1) year unless not less than sixty (60) days’ written notice of its intent not to renew is provided by one party to the other party, such notice to take effect on the expiration of the Initial Term or any Renewal Term as relevant.

4.   CONFIDENTIALITY
A.   Confidential Information means all information relating to Hollander and the Products including trade secrets, methodologies, supplier lists, customer lists, customer data, cost and price data, financial information, product and business plans and usage rates.  Confidential Information does not include: (i) information which is or becomes generally available in the public domain (other than through any breach of confidence); and/or (ii) information rightfully received by Client from a third person who is under no obligation of confidentiality in relation to the information and who has not obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to Hollander.
B.   Client must keep the Confidential Information confidential and must not disclose it to any person except:  (i) to those of its employees or technical advisers who need to know for (and solely for) access to the Products; and (ii) to the extent that Client is required to disclose the Confidential Information by law.

5.   FEES & PAYMENT
A.   The fees for the Products are specified in the Order Form and VAT is due in addition.   At any time after the first 12 months of the Initial Term but no more than once a calendar year, Hollander may increase fees on not less than thirty (30) days’ prior notice to Client by the higher of the then current retail prices index rate and 5%. Following receipt of a notice under this Condition 5A, Client may terminate this Agreement by giving Hollander not less than 14 days’ written notice.
B.   The Total Initial Fee shall be due as follows: 50% on signature of the Order Form; and 50% on the first day of Product installation or training (whichever occurs first).
C.   The first Monthly Fee shall be due on the date the Product is installed and may be prorated to reflect the remainder of the calendar month. Subsequent Monthly Fees are invoiced monthly in arrears.
D.   Hollander shall invoice each month for payment in arrears.  Invoices are due within thirty (30) days after the date of an invoice.  If Client fails to pay any amounts due by the due date, Hollander shall be entitled to (i) suspend access to the Products; and (ii) claim interest at the rate of 1.5% per month above the base rate of the Bank of England on all overdue amounts from the due date until the date of payment.  Client shall pay for costs of collection, if any.  If Hollander suspends access to the Products under this Condition 5D, an additional 50% of the Monthly Fee shall be due and payable in order to reconnect the Products.
E.   Professional services, including custom development, may be provided at Hollander’s then prevailing standard time and materials rate in accordance with a mutually agreed upon statement of work.

6.   AVAILABILITY AND USE OF THE PRODUCTS
A.   If Client postpones a scheduled installation of the Products, Client shall pay an additional charge as follows:  (i) 10% of the Total Initial Fee if Client requests a postponement more than 2 weeks before the scheduled installation date; and (ii) 25% of the Total Initial Fee for all other postponements.
B.   Hollander will make reasonable commercial efforts to support and make the Products available. If Client and/or its employees have not completed the appropriate training, as determined by Hollander, Hollander reserves the right to: (i) deny access to support; and (ii) charge Client additionally for support resulting from non-training.   Hollander training and support services are provided at Hollander’s then prevailing rates. Support is provided during Hollander’s normal business hours.
C.   In order to improve the quality of the Products, Hollander reserves the right to update and modify operation of the Products from time to time.  During maintenance or updating, the Products may be unavailable.
Hollander reserves the right to discontinue providing any Product (or any part thereof) upon sixty (60) days’ prior written notice to Client and in such circumstances, Client’s obligation to pay further fees in relation to such Products shall cease, and any sums paid by Client in advance for such Products shall be refunded.
D.   Client acknowledges that Hollander will not support any products not supplied by Hollander, and that certain products supplied by Hollander will be supported only if used on hardware purchased from Hollander.  Hollander’s support services will not include any assistance relating to interruptions, delays, disconnections or other errors involving Client’s telecommunications or cable line provider or Client’s connection to the Internet.
E.   Client licenses Hollander to use any data submitted by Client into the Products in the compilation of statistics for Hollander’s business purposes (statistical reporting not involving VIN or VRM).
F.   For new Clients for their benefit and to make a smooth transition to Hollander in order to convert Client’s existing data into a data format that is compatible with the Products, Client grants to Hollander the right to collect data and information from Client’s existing system, including all or part of the software that contains Client’s customer, vehicle or part information. Hollander shall use such data to set up and provide the Products to Client. Hollander shall use reasonable endeavours to convert Client’s data into a format that operates with the Products, but does not make any warranty in relation to such conversion. At the request of Client, Hollander will endeavour to integrate any printer to operate with the Products, but Hollander makes no warranty that it shall be able to do so.
H.   Client grants to Hollander and its affiliates a non-exclusive, royalty free licence to access, use, display and disseminate Client inventory and pricing to provide parts locating and related services to other vehicle recyclers who have a licence to use other Hollander products and on websites of Hollander. This will enable Clients to sell more parts

7.   TERMINATION
A:   Either party may terminate the Agreement immediately by notice in writing if the other: (i) has committed a breach of the Agreement and, in the case of a breach capable of remedy, has failed to remedy such breach within 14 days of a written notice requiring it to do so; or (ii) is unable to pay its debts as they fall due 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 ceases for any reason to carry on business.
B:   Hollander may terminate the Agreement immediately by notice in writing to Client if there is: (i) a significant change in the Client’s business; and/or (ii) there is a change of control so that Client is controlled by competitor of Hollander.  For the purposes of this Condition 7B, ‘control’ means the ability to direct the affairs of another whether by virtue of the ownership of shares, contract or otherwise.
C:   Upon termination of this Agreement for any reason, Client shall: (i) immediately cease to access and use the Products; and (ii) within 7 days return or at Hollander’s written request return or destroy any and all copies of the Products, Documentation, and Confidential Information (including, without limitation, worksheets, documentation, computer program media and CDs) in its possession. Conditions 4, 7C, 9 and 10 shall continue in force notwithstanding termination.

8.   FORCE MAJEURE
A   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 Agreement 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.
B   A party will not be liable if delayed in or prevented from performing its obligations under the Agreement 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 Agreement on notice. The provisions of this Condition 8B shall not be relied upon in relation to the inability to pay.

9.   WARRANTY AND LIABILITY
A.   Hollander warrants that the Products will substantially conform to their specifications as represented in the applicable Documentation under normal use and circumstances. All other implied warranties, terms, conditions and obligations are hereby excluded to the fullest extent permitted by law.
B.   Nothing in this Agreement shall limit or exclude Hollander’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or (iv) any other liability which cannot be limited or excluded by applicable law,
C.   Subject to Condition 9B, Hollander shall not be liable to Client for: (i) loss or damage arising as a result of any error, omission or inaccuracy in any part of the 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; (iii) incomplete or incorrect Client data; (ii) obvious or manifest error; (iii) loss or damage arising from a failure to use the Products strictly in accordance with the terms of the Agreement; (iv) loss of profits, loss or corruption of data or information and/or loss of contracts; (v) any kind of special, indirect, consequential or pure economic loss whether arising from negligence, breach of contract or howsoever caused and whether or not Client notified Hollander of the possibility of the same;  (vi) any loss or damage arising from a failure to ensure software compatibility with hardware and/or other software or Client’s failure to carry out appropriate virus checks; and/or (vii) third party claims of any kind. The parties agree that the provisions of this Condition 9C are severable.
D.   Subject to Condition 9B, if Hollander is held to be liable to Client for any reason, Hollander’s aggregate liability to Client under the Agreement (whether in contract, tort (including negligence) or for breach of statutory duty or in any other way shall not exceed the fees paid by Client to Hollander under the Agreement during the 3 months preceding the date on which the claim arose.

10.   GENERAL
A.   Client has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement (including other applicable terms and conditions described at a Hollander Website) contains the entire Agreement of the parties with respect to its subject matter and supersedes all existing agreements and all other oral, written or other communications between them concerning its subject matter.  This Agreement shall not be modified in any way except by a writing signed by both parties.
B.   This Agreement may not be assigned by Client, in whole or in part, without the prior written consent of Hollander.
C.   If any provision of the Agreement (or portion thereof) is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.
D.   The individuals entering into this Agreement on behalf of Hollander and Client hereby represent and warrant that they are duly authorised by all necessary action to enter into this Agreement on behalf of their respective principals.
E.   All notices shall be in writing and shall be forwarded by recorded mail and sent to Hollander and Client at the addresses set forth on the Order Form or to any other address designated in writing hereafter.  Any notice to Hollander shall be sent Attention:  Chief Financial Officer, and shall include a copy to the Legal Department, Attention: General Counsel.
F.   This Agreement shall be governed by, and construed in accordance with, the laws of England and Wales.  Each party submits to the exclusive jurisdiction of the courts of England in respect of any proceedings arising out of or in connection with this Agreement.

11.   DATA PROTECTION AND INFORMATION SECURITY

The Client and Hollander 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.

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Schedule 1

DATA PROTECTION SCHEDULE

The terms “personaldata“, “controller“, “processor“, “processing“, “data subject“, shall have the meanings ascribed to them under the European Data Protection Directive (95/46/EC) or the Regulation (defined below), as applicable.

“Client Personal Data” means all personal data in whatever form or medium which is (i) supplied, or in respect of which access is granted, to Hollander whether by Client or otherwise in connection with this Agreement, or (ii) produced or generated by or on behalf of Hollander in connection with this Agreement;

“Data Protection Schedule” means this data protection schedule;

“Data Protection Law” means the Directives (as amended or replaced from time to time) and the Regulation (or, in the event that the UK leaves the European Union, all legislation enacted in the UK in respect of the protection of personal data);

“Directives” means the European Data Protection Directive (95/46/EC) and the European Privacy and Electronic Communications Directive (Directive 2002/58/EC);

“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;

“Reportable Breach” means any unauthorized or unlawful processing, disclosure of, or access to, Client Personal Data and/or any accidental or unlawful destruction of, loss of, alteration to, or corruption of Client Personal Data;

“Supervisory Authority” means any EU competent data protection authority to whose jurisdiction the Client is subject in relation to the Client Personal Data and where Hollander provides the Products; and

1.1   The Parties agree the following sets out the information required by the Regulation

1.2   The Client and Hollander hereby agree that for the purposes of this Agreement, Hollander (and each permitted subcontractor) shall be a data processor.

1.3   Hollander, acting as data processor, shall:

1.3.1   only process the Client Personal Data as necessary to perform its obligations under this Agreement and/or as required by laws applicable to it (provided that Hollander first informs Client of that legal requirement before processing unless that law prohibits this on important grounds of public interest);
1.3.2   ensure that all staff who have access to Client Personal Data have committed themselves to appropriate obligations of confidentiality;
1.3.3   maintain all appropriate technical and organisational measures to ensure security of the Client Personal Data. Such measures shall be compliant with Hollander’s applicable IT Security and/or Information Security policies.
1.3.4   assist, to the extent possible, Client to fulfil its obligations in responding to requests for exercising of data subject rights  set out in the Directives and Chapter III of the Regulation (Rights of the data subject);
1.3.5   not engage any other processor in relation to the Products without the prior written authorisation of Client, such authorisation not to be unreasonably withheld, or if applicable, not engage any other processor in relation to the Products except in accordance with Client’s general written authorisation and/or as set out in the Hollander Data Retention Policy, under both of which Hollander shall inform Client of any proposed changes to processors and Client shall have a veto right over the proposed changes. For the avoidance of doubt, Hollander shall enter into a written agreement with each sub-contractor containing obligations which are equivalent to those set out in this Clause 1.3;
1.3.6   not transfer any Client Personal Data outside the European Economic Area (EEA) save as required to deliver the Products and otherwise with the express prior written consent of Client;
1.3.7   subject to reasonable access arrangements and save for disclosure of information which is confidential, commercially sensitive or privileged, permit Client or a third-party auditor acting under Client’s direction, to conduct, at Client’s cost, data protection audits, assessments and inspections concerning Hollander’s data protection procedures relating to its compliance with this Clause 1.3. For the avoidance of any doubt, Client’s audit, access, and inspection rights under this clause is limited to Hollander’s documents and records only and does not apply to Hollander’s physical premises;
1.3.8   notify Client as soon as reasonably practicable and in writing if it becomes aware of a Reportable Breach and provide Client with assistance in responding to and mitigating it. Hollander shall maintain a log of Reportable Breaches.
1.3.9   assist Client in complying with Article 35 (Data protection impact assessment) and Article 36 (Prior consultation) of the Regulation in respect of any new type of processing proposed, in accordance with Data Protection Law;
1.3.10   save as to where required by law or in accordance with any applicable data retention policy or exit arrangements, on termination or expiry of this Agreement however made and for any reason, either destroy all Client Personal Data or transfer it to Client or a nominated third party (in a mutually agreed format and by a mutually agreed method).
1.3.11   Notwithstanding anything to the contrary in the Agreement, Hollander’s aggregate liability to Client under this Clause 1.3 and in relation to all of Hollander’s data protection obligations under Data Protection Law shall be limited to and shall not exceed £100,000 Pound Sterling per Contract Year and shall in no event exceed £200,000 Pound Sterling in aggregate for the entire duration of the Agreement and thereafter. For the purposes of this Clause “Contract Year” shall mean each period of 12 months following on from the Start Date of the Agreement or its anniversary and shall include such 12-month periods that continue after the termination or expiry of the Agreement.

1.4   The Client, acting as data controller, hereby warrants and represents:

1.4.1   that all processing of Client Personal Data will be in compliance with all Data Protection Law, and that the processing of the Client Personal Data by Hollander in accordance with this Agreement will not breach Data Protection Law;
1.4.2   that with the exception of personal data as contemplated in this Data Protection Schedule, the Client agrees not to provide Hollander with any other personal data without first notifying Hollander and signing with Hollander separate written terms in relation thereof. Without limiting the generality of the forgoing, the Client also warrants and represents i) that the Client will not provide Hollander with nor request Hollander 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 Client will not provide Hollander with nor pass to Hollander personal data for which Hollander has no knowledge of, is unaware of, or which is not explicitly provided for under this Data Protection Schedule;
1.4.3   that the Client shall, and shall procure its employees, contractors, and/or agents to keep secure the login credentials used to access to the Products, and shall be liable for the access to the Products through such login credentials. The Client further warrants that it shall promptly notify Hollander 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 Products shall only be accessed by authorised employees from authorised sites as agreed to by Hollander (“Authorised Sites”), and Client shall maintain a written, up-to-date list of current employees who use the Products and Authorised Sites and provide such list to Hollander within 15 days of Hollander’s written request at any time; and
1.4.4   that the Client 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 the prompt installation of and/or the upgrading to the latest release or versions of the relevant Hollander software or systems.

1.5   The Client acknowledges that Hollander is reliant on the Client for instructions as to the extent to which Hollander is entitled to use and process the Client Personal Data. Consequently, Hollander will not be liable for and the Client shall, immediately on demand, fully indemnify Hollander and keep Hollander 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 incurred by Hollander or for which Hollander may become liable due to any claim brought by a data subject or Supervisory Authority arising from any action or omission by Hollander, to the extent that such action or omission resulted from the Client’s instructions.

1.6   The Client shall, immediately on demand, fully indemnify Hollander and keep Hollander 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 Hollander or its affiliates in connection with any failure of the Client or any third party appointed by the Client to comply with any of the provisions of Clause 1.4 and/or Data Protection Law in respect of the Client Personal Data.

1.7   To the extent of any conflict exists between this Data Protection Schedule and any other parts of the Agreement, 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 Agreement however effected or arising.