Licence terms (step 1 of 6)

• Schedule 1: Core services summary
• Schedule 2: Supplemental terms for Multi-users and Driving Schools
• Schedule 3: Privacy policy
• Schedule 4: Fair use policy

1. DEFINITIONS

“Equipment" is a Palm PDA and a handheld printer that can be used to run some of the Software which supports the Service. Equipment may be provided at the discretion of DIS where a Subscriber does not own appropriate technical handheld hardware of their own. However, the Subscriber shall at all times be responsible for ensuring that suitable hardware is available to make use of the Service and the Subscription shall not be reduced, diminished or offset in any way for any period that a Subscriber’s own hardware or the Equipment is not available for any reason. DIS shall not be responsible for providing or maintaining a PC or any other hardware other than Equipment, (where applicable), which may be necessary to utilise the Service.

"Instructor" is any person in addition to the Subscriber who is nominated by the Subscriber to enjoy the benefit of the Service.

"Other charges" are payments due to DIS for other services or products we may provide or facilities we may make available that are additional or ancillary to the Service or to cover any costs we may incur in getting you to keep to this Agreement. This would include our reasonable costs in the event that we are unable to collect any Subscription when it is due.

"Service" is the making available by DIS of the following facilities: Online office, Telephone reception, Handheld software, Personalised website and Accounts and Reports (together, the “Core Services”, which are further described in Schedule 1 herein). The Service may also include at the discretion of DIS the use of Equipment and all Software necessary to support the Core Services, or any combination thereof.

"Software" means any copyright material in binary form and any other machine readable materials (including, but not limited to, PDA programmes, computer programmes, Internet code, libraries, source files, header files, and data files), together with any updates or error corrections provided by DIS and any user manuals, programming guides and other documentation provided by DIS in support of the Service.

“Subscriber” is the person completing this Agreement and who will be considered the primary user who will be responsible for the proper adherence to the terms of this Agreement by any Instructor who benefits from the Service.

"Subscription" is the amount charged by DIS for providing the Service and which is payable monthly in advance by bankers direct debit or by other means acceptable to DIS. The Subscription may vary from time to time in accordance with DIS normal business practice but shall not be reduced or diminished in any way if the licensee does not use any or all of the Service available. Any increase in Subscription will be notified to the Subscriber at least 1 month before it is to apply and the Subscriber shall have the option to terminate this Agreement from the next Subscription Point.

"Subscription Point" is the first day of any month where Service is to be provided. This is also the date before which notification must be received in writing (or by other means acceptable to DIS) that the Service is no longer required. For taxation purposes, the Subscription Point shall also be considered the point of taxable supply.

2. TRIAL OFFERS

From time to time DIS may make a limited offer to self-employed driving instructors for the purpose of trialling the Service. To take advantage of this offer you must follow our registration process, which includes completing a direct debit mandate or credit or debit card authorisation. At the end of the trial period you can either notify DIS that you wish to terminate this Agreement (and return any Equipment we may have provided) or continue to use the Service, in which case the payment of our Subscription will be collected. DIS reserves the right to terminate or refuse to implement a trial period at any time at its sole discretion without giving reason.

3. LICENCE TO USE

Subject to the terms and conditions of this Agreement, DIS grants to the Subscriber a non-exclusive, non-transferable, limited licence, subject to payment of the Subscription, to download and use internal Software complete and unmodified for the sole purpose of running a driving instructor business for as long as this Agreement subsists. Additional (supplemental) licenses for Multi-user or Driving School applications to allow Instructors to use the Service will be granted under these terms but subject also to our additional Supplemental Licence Terms as described in Schedule 2 of this Agreement.

4. COMMENCEMENT OF SERVICE

Once we have received a completed application for registration, we will make appropriate reference checks then confirm your application acceptance by sending an e-mail to you at the e-mail address you provided in the registration process. Our acceptance of your application brings into existence a legally binding contract between us. You shall be deemed to have begun the Service on the date we accept your application although you may have to wait for delivery of Equipment. You will also have to complete your Online Office databases to make full use of the Service.

5. PAYMENT OF SUBSCRIPTIONS

The first Subscription payment will be an apportioned sum calculated to the end of the first month that your subscription is due and the amount will depend on the date that you originally registered. The full subscription will be collected in advance on or about the first day of each whole month thereafter. Occasionally, the first (part) Subscription and the first proper (full month in advance) Subscription may be taken at the same time. If we are unable to collect your Subscription when due we reserve the right to suspend our Service until all outstanding sums together with our reasonable charges have been paid in full.

6. PROVISION OF EQUIPMENT

The provision of Equipment by DIS is subject always to availability. We reserve the right to provide new, used or reconditioned Equipment subject to it always being fit for the purpose of operating the Software and supporting the System. Where Equipment is provided, the following terms will also apply:

• DIS will only replace Equipment that has developed a fault through normal “wear and tear” and not for any reason arising out of damage, neglect or misuse by the Subscriber. (The most common genuine reason for Palm PDA replacement is because of a faulty digitiser.)
• you must return the Equipment to us in serviceable condition at the end of the Subscription period. For purposes of this term, “serviceable” shall mean in such condition that the Equipment might reasonably be reused or sold as “Used” to other subscribers as fit for the purpose of operating the Software and supporting the System.
• you must insure the Equipment against loss or damage during your period of use and when in transit whilst being returned to us. The sum assured must not be less than £250.

It is a condition of this licence that if you do not return the Equipment to DIS within 7 days of termination of your Subscription, we shall be entitled to invoice you for that Equipment at a full DIS sale price, which shall include an element of profit.

7. PROVISION OF BUSINESS RECORDS

No warranty is given as to the accuracy of any records that may be generated by the System. In particular, although every reasonable effort has been made to produce what is intended to be a basic set of annual accounts and other management and statistical analyses, neither DIS nor its managers, owners and designers are qualified accountants and Subscribers should seek the support of a chartered accountant in the preparation of a full and individual set of financial accounts where appropriate. It is a condition of use of the Service that DIS is not responsible for any errors or omissions in records howsoever caused and Subscribers accept that the accuracy of records will be affected by (amongst other things) inputs made by the user and by changes in legislation and by software and design limitations.

8. INTELLECTUAL PROPERTY RIGHTS and RESTRICTIONS

DIS has developed and will continue to develop during the term of this Agreement specialised services to be used in conjunction with the operation and management of a driving school business. DIS hereby asserts its rights as owner of all copyright materials, Software, logos, know-how and confidential information that is owned, developed, prepared, supplied or licensed by them or on their behalf and title to Software and all associated intellectual property rights is retained by DIS and/or its licensors. Unless applicable law prohibits enforcement, you may not modify, decompile, or reverse engineer Software. You acknowledge that the Software is designed or intended for use in support of your business as a driving instructor (including Multi-user or Driving School licenses where applicable) and DIS disclaims any express or implied warranty of fitness for any other use. No right, title or interest in or to any trademark, service mark, logo or trade name of DIS or its licensors is granted under this Agreement. All materials provided by DIS under this Agreement shall be confidential unless they are already in the public domain.

9. NO WARRANTY

Software is provided "as is", "with all faults" and "as available". We do not guarantee the accuracy or timeliness of data or information available from the Service. DIS gives no express warranties, guarantees or conditions and exclude any implied warranties including those of merchant ability fitness for a particulars purpose, workmanlike effort and infringement. Unless specified in this agreement, all express or implied conditions, representations and warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement are disclaimed, except to the extent that these disclaimers are held to be legally invalid. DIS will provide the Service with reasonable care and skill but we do not warrant or undertake that this will cause the Service to operate without fault or interruption. We shall use all reasonable endeavours to correct any fault notified by you as soon as is reasonably practicable. DIS cannot guarantee the quality of a product or service provided by a third party, however, we will use reasonable endeavours to resolve any disputes. All information given in our website and in any brochures or other advertising materials is believed to be correct when it was printed but potential subscribers must check the accuracy of any figures or other information for themselves and not rely on anything that is not specified in this Agreement.

10. COMPLYING WITH LEGISLATION

You are responsible for obtaining all necessary licenses and authorities and complying with all relevant legislation that may apply to you in order to make use of the Service including but not limited to the Motor Cars (Driving Instruction) Regulations 1989, The Road Traffic Act 1988, The Data Protection Act 1998 and all subsequent amendments and additions thereto. You are recommended to take legal advice before accepting this Agreement.

11. LIMITATION OF LIABILITY

In no event will we, or our service suppliers, be liable for any loss or damages, including but not limited to loss or damage arising from failure or error in the provision of the Service howsoever caused. Nor will we be liable for any other special, incidental, indirect or consequential loss or damage, arising out of or in connection with the use of or inability to use the Service including but not limited to any claim that may be brought by pupils or instructors or other licensees or subscribers even if DIS has been advised of the possibility of such claims. Your exclusive remedy and DIS's entire liability in the event of failure by DIS to provide the Service or satisfy any element of this Agreement will be at DIS's option to replace Software media or refund an amount equal to one week's Subscription. The foregoing limitations will apply even if this Agreement fails in its essential purpose. You may have other specific legal rights according to the laws of England and Wales that this contract cannot change.

12. INSTALLATION AND AUTO-UPDATE

The Software's installation and auto-update processes may transmit data to DIS (or its service provider) in order to help DIS understand and optimise its Service and to protect its interests pursuant to this Agreement. Your protection provisions for these and other data handling matters are contained within in our Privacy Policy described in Schedule 3.

13. INTEGRATION

This Agreement is the entire agreement between you and DIS relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding unless in writing and signed by an authorised representative of each party.

14. INTERNET ACCESS SERVICE AND TELEPHONE DIVERT

The Subscriber is responsible for paying the fees charged by any Internet access provider and for paying all fees charged by a telephone service provider in order to utilise the Service including but not limited to those charges relating to diverting calls to DIS from your own telephone number. Those fees are in addition to the Subscription that is due as payable for the Service.

15. FAIR USAGE

A “Fair Usage Policy” applies to this Agreement in respect of the number of calls handled by DIS’ telephone reception service. Whilst DIS undertakes to answer a generous number of calls on behalf of its Subscribers, in the event that DIS takes an unreasonably large number of calls for an individual Subscriber, the Fair Usage Policy described fully in Schedule 4 will apply. Subscribers should bear in mind that every call that is taken, whether personal or business, will count towards their Fair Usage calculation.

16. TERMINATION

Either party may terminate this Agreement at any time by giving written notice to the other. This Agreement will then terminate at the next Subscription Point and you will have 7 days to return any Equipment to DIS as required under this Agreement. This Agreement may terminate immediately without notice if you fail to comply with any condition of this Agreement or as a result of a persistent breach of any of these terms. [A “Persistent Breach” will be considered to be a breach of one of these terms more than twice in any twelve month period or a breach of two or more terms in any one month period.] Either party may terminate this Agreement immediately without notice should any Software become (or, in either party's reasonable opinion, is likely to become) the subject of a claim of infringement of any intellectual property right. Upon termination, you must destroy all copies of Software and stop using the Service.

17. CANCELLATION and REASONABLE CHARGES

In the event of notification to cancel this Agreement, the Service will continue to be provided and the Subscription shall remain payable until the next Subscription Point at which time no further Subscription shall be due and the Service will be terminated. This means that if notice to cancel is received shortly after a Subscription Point, the Subscription shall remain payable up to the next Subscription Point. There will be no refund of Subscription for any period of cancellation or non-use of Service up to the next Subscription Point. DIS may charge interest and reasonable costs in dealing with any late or outstanding payments or any breach of this agreement.

18. EXPORT REGULATIONS.

All Software and technical data delivered under this Agreement are subject to UK export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you.

19. SEVERABILITY

If any provision of this Agreement is held to be unenforceable this Agreement will remain in effect with the provision omitted unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.

20. GOVERNING LAW

This Agreement will be construed according to the laws of England and any litegation shall be heard in a court in England or Wales.

CORE SERVICES SUMMARY

This is a summary of the Core Services that are available from DIS. This list is not exhaustive and may be varied by DIS in accordance with its normal business practice. Any change we may make will be taken as accepted by you if you continue to subscribe to the Service. We may also provide additional services as well as those listed but if we do so we may cancel those additional services at any time at our discretion.

Online Office

“Online office” is the means by which DIS enables Subscribers and Instructors to enter, merge, store, view and amend data relating to their business. The Online office service consists of:

• Help and advice to install and set up databases.
• Access to an online method of training on the DIS Systems.
• An interactive diary and booking process to operate a driving instructor business to include an interactive facility to update, amend and delete lesson appointments.
• A series of interactive database to store and collate information relating to your business.
• A means by which you can access all transactional and administrative matters appertaining to your business.

Telephone reception

"Telephone reception" is that facility of call centre support and call handling as provided by DIS. Telephone reception service consists of:

• A dedicated telephone divert number enabling subscribers to divert their calls whenever they want
• UK call centre support at a central location under the control of DIS providing professional call-handling in the name of the Subscriber
• Professional administrative support to driver trainers during the hours of 9 to 5.30 p.m., Monday to Friday, excluding Public Holidays.
• The facility of booking a new pupil with a first lesson appointment.
• Important “on-the-day” calls forwarded by mobile text to the Subscriber with no “per call” cost and no “hidden extras”.
• A facility for dealing with lesson cancellations and bookings from your pupils.
• A facility for booking your pupils' practical and theory tests.

Handheld software

“Handheld software” is a programme or series of programmes capable of being downloaded into a Palm PDA (or equivalent) and which has been specifically designed by DIS to interface with the other Software within the System. Handheld software consists of:

• Help and advice to install software
• Palm operating software to record data for a driving instructor business.
• A scoring system to enable instructors to record the progress of individual pupils on each lesson.
• A means of providing a hard copy receipt to pupils at the end of each lesson subject to the availability of appropriate handheld printer hardware.
• A means by which a handheld telephone can be utilised to access the Instructor’s Online office.

Personalised website

"Personalised website" is that facility provided by DIS which relates to internet facilities designed, originated or developed by DIS and which has been produced to give a Subscriber an internet shop-window for his or her goods and services. A Personalised website facility consists of:

• Access to a limited number of website templates and colour schemes from which a Subscriber can select to represent their own business.
• Access to a number of "static" pages of predetermined length and content that will be appropriate for the Subscriber’s business that can be incorporated into a Personal website.
• Hosting of the website.
• Provide a website address so that anybody can view the Subscriber’s business details online for the duration of this Agreement.
• A link to enable potential new pupils to view products and prices and to book an initial driving lesson online.
• A link for existing pupils to book and cancel lessons directly on the website.
• A link to enable pupils to make secure online payment to the Subscriber via PayPal.

Accounts and Records

“Accounts and Reports” are a series of statistical and management aids produced either electronically or in a hardcopy format to help and advise the Subscriber (and, where appropriate, any Instructor) as to the progress of their business. Accounts and Records consist of

• Record and track lesson hours for prepaid pupils and all other pupils' payments made to the business.
• Maintain individual pupils' lesson histories and other pupil records.
• Provide a full summary breakdown of pupils’ lessons and receipts together with statistical information to help run the business.
• Provide a complete log of work done on the Subscriber’s behalf and a daily list of outstanding work matters.
• Maintenance and back up of all data.

The benefits not provided under the DIS Core services include:

• DIS will not undertake any work that requires it to initiate contact with any pupil. This restriction will include but not be limited to:
• dealing with lesson clashes resulting from double-booking of lessons
• rebooking pupils who are no longer currently on the instructors books
• contacting pupils who need to be moved or canceled by an instructor
• DIS will also not undertake as part of the Service (although may be willing to do so at an additional charge) to:
• collect money owed to you by pupils (or others)
• deal with or arbitrate any complaints made by your pupils
• provide support for software or hardware issues after initial installation.

Subscriber’s responsibilities

Only the Subscriber may use the Service unless they have nominated another Instructor or Instructors under a Multi-user or Driving School licence (the “Licence”). It is the responsibility of the Subscriber to advise their Instructor(s) as to the terms of that Licence and their rights and obligations when using the Service. You, as Subscriber are responsible for all activity that takes place under any Licence that is granted to you. You are also expected to take all reasonable steps that a duly diligent person might be expected to take to protect DIS intellectual property rights. You may not authorise any third party to access and/or use the Service for themselves or on your behalf unless they are registered with and accepted by DIS as per the terms of your Licence. A Subscriber has the right to end the Service or close or alter an Instructor’s authority at any time and to access, request and receive all Service use information related to an Instructor’s account.

Supplementary terms

These Supplemental terms add to or modify the terms of this Agreement and shall supersede any inconsistent or conflicting terms in the Agreement or in any Licence. Supplementary terms are to be effected in addition to the requirements of Agreement except where Supplementary terms conflict with the requirements of the Agreement, in which case these Supplemental terms shall prevail.

Types of licensing

A Multi-user licence shall require an additional Subscription to be payable to DIS by the Subscriber to enable the Service to be used by another Instructor or Instructors. The Subscriber shall at all times be personally responsible for any breach of the terms of the Agreement or Licence that may be occasioned by their Instructor or Instructors and must take appropriate steps to ensure compliance of terms and conditions by any Instructor or Instructors nominated by them. The following additional facilities shall apply to a Multi-user licence:

• the facility of assigning postcodes and other instructions to individual Instructors in order that an enquiring pupil may be allocated to an appropriate Instructor, and
• the facility of a business overview enabling the Subscriber to view the business of all the Instructors within the Multi-user group.

A Driving School licence shall only be granted in writing when signed by both parties for a minimum period and where additional terms and conditions have been agreed for the use of the Service or any derivation thereof.

Introduction

We are Driving Instructor Services ("DIS"). We are registered under the Data Protection Act 1998 (registration number PZ5595613) to collect and store information about our customers and enquirers. Please read the following to learn more about our Privacy Policy.

Data protection

DIS is committed to upholding the eight Data Protection principles of good information handling practice. Specifically, this means that data must be:

• Fairly and lawfully processed
• Processed for limited purposes
• Adequate, relevant and not excessive
• Accurate and up to date
• Not kept longer than necessary
• Processed in accordance with the data subject's rights
• Secure
• Not transferred without adequate protection

A full explanation of these principles can be found at www.ico.gov.uk.

Cover of our Policy

This Privacy Policy covers our treatment of personally identifiable information that we collect when you are on our web site or when you ask about or use our products or services. This policy does not apply to the practices of companies that we do not own or individuals control, employ, manage or have entered into a franchise agreement with. Our website does not target and is not intended to attract children under the age of 16. We do not knowingly solicit personal information from children under the age of 16 or ask them for personal information.

Collection and use of information

When you register with us we will ask for personal information about you. Once you register with us you are not anonymous to us. We will use this information to decide whether to provide products or services to you and such information will form the basis of a licence agreement between us. We may also process payments or applications to make payments over our website and if this happens we undertake to use secure (encrypted) facilities. A small amount of data may be retained by us in connection with these facilities.

Third party sites

Our website contains links to other sites. We do not share your personal information with those websites and we are not responsible for their privacy practices. We encourage you to learn about the privacy policies of those companies as such sites may collect personal data about our visitors.

Sharing and disclosure of information

We may send personally identifiable information about you to other firms, companies or people only when we have your consent to share the information or we need to share your information to provide the product or service you have requested or we need to send the information to driving schools or allied suppliers who work in association with us to provide a product or service to you. We may also disclose personally identifiable information about you when we respond to court orders or legal process or if we find that your actions violate the terms of our Licence Agreement or any of our usage guidelines for specific products or services.

Cancellation and amendments

You may request cancellation of Service within the terms of our trading by informing us by telephone, by fax, by post or by e-mail. However, information will remain on our archived records after your registration has been closed. We may amend this policy from time to time. If we make any substantial changes in the way we use your personal information we will post a prominent announcement on our web site.

Questions or suggestions

If you have questions or concerns about our collection, use, or disclosure of your personal information you can e-mail us at mail@DrivingInstructorServices.com or telephone us on 01792 585176 or write to the managing partner, Nicholas Zapettis, at Unit 4, First floor, Abertawe House, 115 Ystrad Road, Fforestfach, Swansea SA5 4JB.

FAIR USAGE POLICY

This “Fair Usage Policy” is designed to make sure that the DIS telephone reception call handling service is quick and reliable and that DIS receptionists are available whenever you divert your calls.

Need for policy

A small number of subscribers use their home telephone number as a business line and, as a result, a number of personal calls are received by the DIS call centre. In addition, it has been known for several instructors to divert a communal telephone number and a higher call volume therefore inevitably results. This type of call handling is not what Pick ‘n’ mix was intended to deal with.

Those affected

DIS has estimated that perhaps less than 10% of its Pick ‘n’ mix Subscribers could be using as much as 75% of its call centre resources during the working day. We do not believe that this is fair to the vast majority of our Subscribers. This Fair Usage Policy will enable DIS to monitor the very small number of extremely heavy users to protect the service for all its other Subscribers.

Implementation

Fair Usage is based on the number of calls handled, not the number of texts forwarded to the Subscriber. Not all calls will be forwarded as texts, although all calls will be noted on the Subscriber’s Calls Log, which is viewable in the Subscriber’s Online Office. A sole trader or husband and wife team who divert a business or mobile number during working hours Monday to Friday are unlikely to ever be affected by this Fair Usage Policy. If you are affected, we will contact you to let you know that we feel your usage is unreasonable and discuss your alternatives. This may include paying a slightly higher Subscription to enable an increased usage, or alternatively, you may consider switching to the DIS full service where no heavy usage restrictions apply.

Consequences of over-usage

If you choose to remain with Pick ‘n’ mix without negotiating a higher usage fee and your usage remains excessive we will contact you again to try to reach a solution. If your usage remains excessive, we will contact you a third time to advise you that we will be restricting your divert facility for the good of all other subscribers. We believe that this is the fairest approach. It protects the quality of the service and keeps Subscriptions low for the vast majority of subscribers who need to use our service, whilst at the same time allowing heavy users to pay a higher Subscription or move to a full service package to enjoy an unrestricted use.

Recommendations:

• Try to ensure that the number you divert is a business line only.
• Do not expect to use the service to support more than one or two instructors without an additional charge. If you expand your business, it is not unreasonable to suggest you should pay a higher subscription for additional usage.
• You may want to advertise the number you divert for use of new enquiries only. Existing pupils could be given another number to contact if they want to alter, amend or cancel their lessons. This will obviously reduce the traffic on your main number.
• The additional benefits of the full DIS Service often outweighs the extra Subscription charge. The saving in annual accountancy fees alone can often represent the difference between the monthly Subscription charges and improved management and quality of service to pupils will usually be an additional benefit that Subscribers to the full Service quickly come to rely upon.