We J.H. Haynes & Co. Limited (being the Licensor) produce a wide range of printed Haynes® manuals, primarily focused on the repair and maintenance of various makes and models of motor vehicles (the Manuals). These Manuals, together with additional content, are now available as an online product (the Content) (the extent of the Content to which you and your End Users are entitled to access being as defined in the Particulars).
You the Subscriber (as defined in the Particulars) wish to afford access to the Content to your End Users (as defined in the Particulars).
In consideration of the payment of the Licence Fee (as defined in the Particulars) the Licensor has agreed to permit the Subscriber the right to place a hyperlink on its website linking to the Licensor's website, from which End Users are free to have access to the Content and if required to print copies of the same for personal use.
Agreeing to the terms of this Subscription Agreement
- Grant of licence In consideration of the terms of this agreement and of the payment of the Licence Fee by the Subscriber to the Licensor, the Licensor hereby grants to the Subscriber a non-exclusive licence (the Licence) (subject to any prior termination under clause 11) to establish a hyperlink (the Hyperlink) to direct End Users to the Licensor’s website at www.haynesmanualsallaccess.com (the Source Website), subject to End Users being bound by the terms of the End User Agreement.
- Payment of the Licence Fee The Subscriber shall pay the agreed Licence Fee in the amount and in the manner stipulated by the Licensor.
- Non-payment If the Licensor has not received payment within five days after the due date, and without prejudice to any other rights and remedies of the Licensor the Licensor shall be under no obligation to provide access to any or all of the Content while the invoice(s) concerned remain unpaid.
- Basis of Licence The Subscriber acknowledges that the Licence is non-exclusive and personal to the Subscriber and may not be assigned by it without the prior written approval of the Licensor. In relation to the Content:
- the Licensor hereby grants to the Subscriber on and subject to the terms and conditions of this agreement a non-exclusive, non-transferable licence to allow End Users to access the Content through the Hyperlink and to use the Software solely for the Permitted Use;
- the Subscriber shall not:
- attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Content except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
- access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services;
- use the Software or Hosting Services to provide services to third parties, other than to the extent permitted under this agreement in respect of the End Users; or
- transfer, temporarily or permanently, any of its rights under this agreement, or
- attempt to obtain, or assist third parties in obtaining, access to the Content, other than as provided under this agreement; and
- the Subscriber shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify the Licensor promptly of any such unauthorised access or use.
- End User access to the Content The Subscriber warrants and agrees that the Hyperlink shall only be accessible to current End Users of the Subscriber from time to time and the Subscriber shall ensure that any person who ceases to be a current End User of the Subscriber shall thereafter be immediately denied further access to the Content via the Hyperlink. In addition the Subscriber agrees that the display of the Hyperlink shall be in a form and substance satisfactory to the Licensor and the Subscriber shall co-operate with the Licensor in effecting any change to the appearance or operation of the Hyperlink that the Licensor should require from time to time. In relation to End Users:
- the Subscriber's access rights in respect of the Content shall be limited to the number of individual End Users detailed in the Particulars;
- the Subscriber shall maintain a written list of current End Users of the Content, and the Subscriber shall provide such list to the Licensor as may be reasonably requested by the Licensor from time to time;
- the Subscriber shall ensure that each End User keeps a secure password for his use of the Software and that each End User keeps his password confidential;
- the Licensor may conduct an audit in relation to the name and password for each End User. Such audit may be conducted no more than once per quarter, at the Licensor’s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Subscriber's normal conduct of business; and
- if such audit reveals that passwords have been provided to individuals who are not End Users, and without prejudice to the Licensor's other rights, the Subscriber shall promptly disable such passwords and shall not issue any new passwords to such individuals.
- Warranties The Licensor warrants that it has the right to license the receipt and use of Content as specified in this agreement. Except as expressly stated in this agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law. The Licensor does not warrant that:
- the supply of the Content will be free from interruption;
- the Content is accurate, complete, reliable, secure, useful, fit for purpose or timely; or
- the Content has been tested for use by the Subscriber, any End User or any other third party or that the Content will be suitable for or be capable of being used by the Subscriber, any End User or any other third party.
- Obligations of the Subscriber The Subscriber shall:
- provide the Licensor with:
- all necessary co-operation in relation to this agreement; and
- all necessary access to such information as may be required by the Licensor, in order to provide the Content, including but not limited to details of all End Users, security access information and software interfaces to the Subscriber's other business applications;
- provide such personnel assistance as may be reasonably requested by the Licensor from time to time;
- without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement; and
- carry out all other Subscriber responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Subscriber's provision of such assistance as agreed by the parties, the Licensor may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary;
- not alter nor shall it authorise another to alter any element of the Source Website including its appearance or operability;
- Ownership of rights The Subscriber acknowledges and agrees that the Licensor and/or its licensors own all intellectual property rights in the Content. Except as expressly stated herein, this agreement does not grant the Subscriber any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Content or any related documentation. The Licensor confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement. To the extent that the Hyperlink comprises any trade mark(s) owned or licensed by the Licensor (the Mark(s)) the Subscriber warrants and agrees that the Mark(s) shall only be used in connection with the promotion of the Content and other products offered by the Licensor in the conduct of its business.
- Limitation of liability Except in the case of death or personal injury caused by the Licensor’s negligence, the Licensor’s liability under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the greater of the sum of £10,000 or the Licence Fee paid to the Licensor under this agreement. It is further agreed that, subject to clause 10 neither party shall be liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
- Indemnity The Subscriber shall indemnify and hold harmless the Licensor from and against all Claims and Losses arising from loss, damage, liability, injury to the Licensor employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Subscriber by the Licensor, its employees or Licensors, or supplied to the Licensor by the Subscriber within or without the scope of this agreement. Claims shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and Losses shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
- Termination Without affecting any other right or remedy available to it the Licensor may terminate this agreement with immediate effect by giving written notice to the Subscriber if the Subscriber:
- fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
- commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
- repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
- suffers any form of insolvency event other than creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Subscriber with one or more other companies or the solvent reconstruction of the Subscriber; or
- suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- Post-termination On termination of this agreement for any reason:
- all licences granted under this agreement shall immediately terminate;
- each party shall return and make no further use of any equipment,property, materials and other items (and all copies of them) belonging to the other party; and
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
Protection of confidential information 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 or of any member of the group of companies to which the other party belongs, except as permitted below. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement. Each party may disclose the other party's confidential information:
- Force majeure Neither party shall have any liability under or be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that party. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either party may terminate this agreement by written notice to the other party.
- Amendments This agreement may only be amended in writing signed by duly authorised representatives of the parties.
- Assignment Subject to the following sentence, neither party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other party. A party may, however, assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under this agreement.
- Entire Agreement This agreement contains the whole agreement between the parties in respect of subject matter of agreement, and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement. Nothing in this agreement excludes liability for fraud.
- Waiver No failure or delay by either party in exercising any right, power or privilege under this agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
- Agency, partnership etc. This agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this agreement. Neither party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.
- Further assurance Each party to this agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.
- Severance If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.
- Announcements No party shall issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes all the parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
Notices Any notice to be given under this agreement shall be in writing and shall be sent by first class mail or air mail, or by email, using the contact details provided on signing-up to this agreement, or such other contact details as a party may from time to time notify to the other party in accordance with this clause 15. Notices sent as above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of air mail), or on the next working day after transmission (in the case of emails). To prove notice was given it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the email was addressed and despatched and despatch of the transmission was confirmed.
Law and jurisdiction The validity, construction and performance of this agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the parties submit.
Third parties For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this agreement this agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause; and
- as may be required by law, a court of competent jurisdiction or any
governmental or regulatory authority.