Effective for Agreements signed on or after 2nd December 2020
DEALER STANDARD TERMS AND CONDITIONS (October 2020)
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and phrases shall have the following meanings:
"Agreement" means the contract for the purchase and sale of Services from Motors which comprises of these Motors Standard Terms, the Order Form and Motors' Policies;
"Commencement Date" means the date this Agreement and the Services start as stated in the Order Form;
"Contract Year" means each period of twelve (12) consecutive calendar months commencing on the start of the Initial Minimum Term or an anniversary of that date;
"Data Protection Laws" means the Data Protection Act 2018, General Data Protection Regulation ((EU) 2016/679 ("GDPR"), the Privacy and Electronic Communications Directive 2002/58/EC together with applicable legislation implementing, supplementing or superseding the same or otherwise relating to the processing of personal data of natural persons, together with binding guidance and codes of practice issued from time to time by relevant supervisory authorities;
"Dealer" means the car dealer referred to in the Order Form;
"Dealer Content" means any and all content and materials supplied or made available by the Dealer to Motors (including car stock particulars and Dealer contact names, addresses and/or emails);
"Deliverables" means all products and materials developed by Motors in relation to the Services in any media, including, without limitation, websites, domain names, art work, data, diagrams, reports and specifications (including drafts);
"Fees" means the sums payable by the Dealer to Motors for the supply of the Services and Deliverables;
"Force Majeure" means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable;
"Initial Minimum Term" means the initial term of this Agreement as set out in the Order Form starting on the Commencement Date (or if later and stated in this Order Form, the Target Go-Live Date);
"Motors" means Motors.co.uk Limited, 1 More London Place, London, SE1 2AF. Registered in England and Wales (company no: 05975777);
"Motors Control System" means the system made available by Motors to the Dealer in order to facilitate use of the Services by the Dealer and which may include Motors Software;
"Motors Data" means personal data obtained by or disclosed by or on behalf of Motors to the Dealer pursuant to the Agreement and/or any other dealings between the Dealer and Motors;
"Motors Network" means the website located at www.motors.co.uk and such other websites managed by or partnered with Motors from time to time;
"Motors Software" means any software supplied or made available by Motors to the Dealer in connection with the provision of the Services;
"Order Form" means Motors' standard order form as may be amended from time to time by Motors;
Services" means the product/services specified on the Order Form that Motors has agreed to supply to the Dealer in accordance with these Motors Standard Terms;
"Target Go-Live Date" means the date the Services are targeted to go-live as stated in the Order Form (where applicable);
"Term" has the meaning set out in clause 3 of these Motors Standard Terms;
"Termination Payment" means a sum equal to the Fees that would have been due to Motors during the remainder of the Initial Minimum Term had the Agreement not terminated in accordance with clause 11.5;
"Third Party Additional Terms" means the additional terms and conditions of any third party service provider whose services or products are provided to the Dealer under the terms of the Agreement
"Working Day" means a day (excluding Saturdays and Sundays) on which banks are generally open in England for the transaction of normal business.
2 CONTRACT BETWEEN MOTORS AND THE DEALER
2.1 The Order Form constitutes an offer by the Dealer to purchase Services in accordance with these Motors Standard Terms. No Agreement shall subsist between Motors and the Dealer until:
2.1.1 an acknowledgment of the Order Form is issued by Motors in writing to the Dealer
2.1.2 Motors confirms to the Dealer in writing that the Dealer may commence use of the Services; or
2.1.3 Motors begins to provide the Services to the Dealer.
2.2 The Dealer confirms that the name included in the Order Form is the full legal name of the Dealer whether a company, partnership or sole trader. Where the Dealer is not a company registered in England and Wales, the Dealer confirms that the full legal names and addresses of all owners or partners (as the case may be) are included on the Order Form.
2.3 The Dealer (and its signatory) warrants that it has full capacity and authority to enter into the Agreement.
2.4 The Dealer's attention is particularly drawn to the provisions of clauses 5 and 9.
The term of this Agreement ("Term") shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 11, until the end of the Initial Minimum Term. The Term shall automatically extend for one (1) month rolling periods ("Extended Term") at the end of the Initial Minimum Term and at the end of each Extended Term, unless either party gives written notice to the other party, not later than one (1) month before the end of the Initial Minimum Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Minimum Term or the relevant Extended Term, as the case may be.
4.1 Subject to these Motors Standard Terms and in consideration of payment of the Fees by the Dealer, Motors shall provide the Services to the Dealer.
4.2 Motors shall use reasonable skill and care and comply with all applicable laws in its provision of the Services but makes no representation or warranty that the Services will be uninterrupted or error free or fit for the Dealer's particular purpose.
4.3 Motors reserves the right at any time and from time to time:
4.3.1 to modify or suspend, either temporarily or permanently, the operation of the Services (or any part thereof) with or without notice. Motors shall not be liable if, for any reason, the Services, Motors Network and/or the Motors Control System is unavailable at any time or for any period; and/or
4.3.2 to decline, amend or remove Dealer Content from the Services or require the Dealer to amend or remove Dealer Content.
5 DEALER OBLIGATIONS
5.1 The Dealer shall be responsible for any/all Dealer Content and ensure that its use of the Services and all Dealer Content complies with:
5.1.1 Motors Policies;
5.1.2 these Motors Standard Terms;
5.1.3 any Third Party Additional Terms; and
5.1.3 all applicable laws, and, in particular:
(a) where a Dealer is regulated by the FCA, any rules, policies, codes of conduct, guidance, requirements or recommendations issued by the FCA; and
(b) Dealer Content will not be unlawful, illegal, discriminatory, defamatory, contain viruses, Trojans, malware (malicious software), hoaxes or any tools designed to compromise security, or infringe any copyright, trade mark or other rights of any third party.
5.2 The Dealer shall:
5.2.1 ensure that all Dealer Content is delivered to Motors in a format compatible with any technical specifications issued by Motors;
5.2.2 ensure that it has the right to use and display any/all Dealer Content (including the intellectual property rights contained within it) on the Motors Network;
5.2.3 be responsible for any charges levied by third parties in relation to the uploading of Dealer Content to Motors; and
5.2.4 ensure that only its authorised personnel have access to and use of the Motors Control System and that a unique login and password combination is only used by each of its authorised personnel.
5.3 The Dealer permits Motors to incorporate and display Dealer Content and identify the Dealer as the source of the Dealer Content on the Motors Network and in such other products/services as Motors sees fit.
5.4 The Dealer shall promptly update or correct Dealer Content (including prompt removal of any vehicle inventory that is no longer for sale) on becoming aware of any errors or inaccuracies or at Motors' request.
5.5 The Dealer shall not publish, disclose, reproduce or create derivative works from any information obtained pursuant to the provision of the Services unless expressly agreed in writing by Motors.
5.6 Motors records and monitors the use of the Services by Dealers, which shall include telephone and email communications. Telephone calls using the telephone numbers provided on the Motors Network or provided by Motors and email correspondence between Dealers and purchasers of vehicles at the email addresses accessible through, or discernible from, the Motors Network, may be recorded and/or monitored. By using such communication methods, the Dealer consents to the recording and/or monitoring of the same.
5.7 In relation to telephone call recording services provided by Motors, the Dealer shall advise its staff that calls are recorded for training and monitoring purposes. Furthermore, the Dealer shall ensure that no customer payment card details are taken by staff on such calls except in compliance with Payment Card Industry Data Security Standards ("PCIDSS"). The Dealer acknowledges and agrees that it is the Dealer's sole and absolute responsibility to comply with PCIDSS and Motors shall have no responsibility or liability whatsoever in relation to any failure by the Dealer to comply with this clause or PCIDSS.
5.8 If, during the Services, a customer makes a finance application in relation to a car being offered for sale by the Dealer on the Motors Network, which results in a confirmed finance offer being made to such customer, the Dealer acknowledges and agrees that it shall undertake:
5.8.1 certain actions required to complete the finance application including but not limited to contacting the customer and completing any relevant finance documentation; and
5.8.2 any such actions in accordance with applicable laws including but not limited to any FCA rules, policies, codes of conduct, guidance, requirements or recommendations.
5.9 The Dealer acknowledges and agrees that it may receive commission from finance companies and/or Motors in relation to a successfully completed finance application.
6.1 Fees are exclusive of VAT which shall be paid by the Dealer in addition at the rate and in the manner prescribed by law.
6.2 Motors shall invoice the Dealer for payment of the Fees on a monthly basis. The Dealer shall pay the Fees to Motors by direct debit (with such payments to be collected approximately twenty eight (28) days after the invoice date) or by such other method as may be agreed in writing by Motors. The Dealer acknowledges that an administration charge of three per cent (3%) of the Fees may apply where customers choose not to pay via direct debit which shall be payable by the Dealer and added to the monthly invoice.
6.3 If the Dealer fails to pay any amount due to Motors by the due date for payment then:
6.3.1 Motors reserves the right to charge interest at the rate of four per cent (4%) per annum above National Westminster Bank plc's base lending rate in force from time to time or such higher rate as may be permitted by law from the due date until settlement or discharge of the debt;
6.3.2 without prejudice to any other right or remedy available to Motors, Motors shall be entitled to suspend Services to the Dealer until payment in full has been made or terminate the Agreement.
6.4 Motors may vary the Fees at any time (but not so as to be effective before the end of any Initial Minimum Term) by giving the Dealer notice of such change at least 15 (fifteen) days prior to the start of the calendar month in which the change will take effect . If the Dealer does not exercise its right of termination under clause 11.3 below and continues to use the Services after the date on which the new prices take effect, the Dealer shall be deemed to have accepted and agreed to pay the new prices.
6.5 Motors reserves the right at its discretion and at any time during the Term:
6.5.1 to carry out relevant credit checks on Dealers; and
6.5.2 to require the Dealer to pay a deposit and/or a non-refundable advance payment before, or to continue, making Services available to the Dealer. If a deposit is paid by the Dealer, it shall be repaid by Motors to the Dealer on termination of the Agreement subject to Motors' right to offset any outstanding amounts payable by the Dealer against such deposit.
6.6 Motors reserves the right to charge the Dealer its reasonable administration costs in dealing with any failed payments and/or its costs in relation to pursuing debt collection.
6.7 In relation to advertising of the Dealer's vehicle inventory, Motors reserves the right to charge the Dealer two pounds sterling (£2) per vehicle per week on the basis of the average daily number of vehicles advertised by Motors for the Dealer in the calendar month if this exceeds the sum indicated on the Order Form for such Service.
6.8 Any dispute in relation to an invoice must be notified to Motors within twenty eight (28) days of the invoice date. If the Dealer does not notify Motors of a dispute in accordance with this clause 6.8 the invoice will be deemed to have been accepted.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 The Dealer acknowledges that all intellectual property rights (including, but not limited to, copyright, database rights and trademarks) in the Services, technology supporting the Services (including the Motors Control System) and the Motors Network are owned or controlled for these purposes by Motors and that the Dealer has no rights in, or to, such intellectual property other than the right to use in accordance with these Motors Standard Terms for the duration of the Term.
7.2 Subject to the restrictions set out in clause 7.3 and the other terms and conditions of the Agreement, Motors hereby grants to the Dealer a non-exclusive, revocable, non-transferable right to use the Services and the Deliverables during the Term.
7.3 Except as may be allowed by any applicable law and to the extent expressly permitted under these Motors Standard Terms, the Dealer shall not:
7.3.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Deliverables (as applicable) in any form or media or by any means;
7.3.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services and/or Deliverables;
7.3.3 access all or any part of the Services and Deliverables in order to build a product or service which competes with the Services;
7.3.4 use the Services and/or Deliverables to provide services to third parties;
7.3.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Deliverables available to any third party; or
7.3.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Deliverables.
7.4 The Dealer grants to Motors a non-exclusive, irrevocable, perpetual and royalty free licence to use the Dealer Content for any purpose. The Dealer confirms that neither the Dealer nor any other person will assert any moral rights in or relating to the Dealer Content against Motors or any third party.
Motors and the Dealer agree to keep the terms of the Agreement and all information that is obtained about the business, finances, technology and affairs of the other strictly confidential. This clause shall not apply to information which has come into the public domain other than by breach of this clause or is required to be disclosed by law. This clause 8 shall survive termination of the Agreement.
9 DATA PROTECTION
9.1 Motors and the Dealer shall:
9.1.1 process personal data received or made available to it under and/or in connection with this Agreement each as a separate and independent controller (the parties shall not act as joint controllers);
9.1.2 be individually and separately responsible for complying with their respective obligations under Data Protection Laws;
9.1.3 not act in a controller-to-processor relationship except where Motors manages the Dealer's advertising or listings on the Dealer's own social media account on the Dealer's behalf. In such a case, the parties shall enter into a separate data processing addendum which, where applicable, will be set out in a schedule;
9.1.4 not be required to obtain authorisation from the other party in relation to its processing of the personal data it controls; and
9.1.5 cooperate in good faith to respond to enquiries from data subjects and competent supervisory authorities.
9.2 Further, the Dealer shall (at the Dealer's own cost):
9.2.1 take all technical and organisational measures to protect personal data (including Motors Data) to ensure an adequate level of security appropriate to the personal data processed as required under Data Protection Laws including but not limited to the measures set out in article 32 of the GDPR;
9.2.2 immediately notify Motors of any personal data breach (upon becoming aware of the breach) and provide full cooperation and assistance regarding such personal data breach including mitigation measures to remedy the breach; and
9.2.2 notify Motors of any request, complaint, claim or demand made by a data subject and provide full cooperation and assistance with respect to such requests.
9.3 Dealer shall process personal data received from Motors exclusively for the purpose(s) Dealer received the personal data under and/or in connection with this Agreement. Dealer may only use Motors Data for internal analytic purposes but shall not contact or use (or permit any other person to contact or use) the data relating to any individual whose details are contained within the Motors Data or provide (or permit the provision of) any data relating to any individual whose details are contained within the Motors Data to any third party for any purpose(s) except as set out in the Agreement.
9.4 Dealer shall erase the personal data received under this Agreement immediately after the respective purpose(s) has/have been fulfilled. Any further processing of the personal data is not permitted except when legally required (e.g. if a retention obligation applies).
9.5 Failure to abide by the aforementioned obligations may result in account suspension or immediate termination of this Agreement or other sanction.
10 LIMITATION OF LIABILITY
10.1 All warranties, conditions, representations or other terms implied by statute or common law in relation to the Services, Deliverables, technology supporting the Services (including the Motors Control System) and the Motors Network are excluded to the fullest extent permitted by law.
10.2 Motors shall not be liable to the Dealer under or in connection with the Agreement for any indirect, incidental, special, consequential or exemplary loss or damage including but not limited to any loss of business, contracts, profits, anticipated savings, data, (or damage to) hardware and/or software (even if Motors had been advised of the possibility of such damages or loss).
10.3 Except as provided in clause 10.5, the total liability of Motors to the Dealer in respect of any loss or damage under or in connection with the Agreement in any Contract Year shall not exceed fifty percent (50%) of the aggregate amount of Fees paid by the Dealer in the previous Contract Year except in the first Contract Year when it shall not exceed four thousand pounds sterling (£4,000).
10.4 Payment of Service Credits (as defined), if provided for in the Order Form, shall be the Dealer's sole and exclusive remedy for failure by Motors to meet the service levels, which, where applicable, will be in Schedule 1 to these Motors Standard Terms.
10.5 Nothing in the Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of Motors or for fraud, fraudulent misrepresentation or for any other liability that cannot be excluded or limited by law.
10.6 The Dealer accepts full liability for and shall indemnify Motors on demand against any and all losses, damages, costs and expenses (including reasonable legal fees) incurred by Motors in relation to any third party claim arising from the Dealer Content, violation by the Dealer of these Motors Standard Terms and for any breach by the Dealer of clauses 5, 6, 7, 8 and 9, or misuse by the Dealer of the Services, Deliverables, technology supporting the Services (including the Motors Control System) and the Motors Network except to the extent that the foregoing results directly from the negligence of Motors.
10.7 Where the Dealer is an unlimited partnership, each partner agrees that it shall be jointly and severally liable for the liabilities of the Dealer under this Agreement.
11 TERMINATION AND CONSEQUENCES OF TERMINATION
11.1 Either party may terminate the Agreement:
11.1.1 immediately upon written notice to the other party if the other party commits any material or persistent breach of the Agreement and, in the case of a breach which is capable of remedy, fails to remedy the same within fourteen (14) days after receipt of a written notice giving particulars of the breach and requiring it to be remedied; or
11.1.2 immediately upon written notice to the other party if the other party shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all the liabilities of it) or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors, or shall be unable to pay its debts as they fall due.
11.2 Notwithstanding clause 3, Motors may terminate the Agreement for any reason during the Initial Minimum Term upon giving not less than two (2) months' written notice to the Dealer.
11.3 A notice of amendment to the Fees or to these Motors Standard Terms from Motors ("Amendment Notice") shall take effect 15 days after your receipt of the Amendment Notice ("Amendment Effective Date"). Following your receipt of such Amendment Notice, you shall be entitled to terminate the Agreement unilaterally upon serving written notice to Motors on or before the Amendment Effective Date. The Agreement will then terminate on the Amendment Effective Date.
11.3 Upon termination of the Agreement for any reason:
11.3.1 the Dealer shall cease using the Services and Deliverables, delete any of the Dealer's login passwords and erase any Motors Software;
11.3.2 Motors shall disable the Dealer's use of the Services and the Dealer shall no longer be able to retrieve any Dealer Content; and
11.3.3 the Dealer shall immediately pay to Motors all remaining unpaid sums due to Motors.
11.4 Termination of the Agreement shall not affect the accrued rights or liabilities of Motors or the Dealer nor any provision of the Agreement which is expressed or required to survive or operate in such event.
11.5 If Motors, in accordance with clause 11.1, or the Dealer terminates the Agreement prior to the expiry of Initial Minimum Term the Dealer shall pay to Motors the Termination Payment.
12.1 Motors has a free-of-charge internal complaints handling process and the Dealer may email a complaint to firstname.lastname@example.org stating the details of their complaint, as requested by Motors. Each complaint will be logged by Motors and once processed and duly considered the Dealer will be communicated the outcome of the complaint within a reasonable timeframe (all having regard to its importance and complexity)..
12.2 If a complaint has not been resolved through the internal complaints handling process, Motors will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation by the Centre for Effective Dispute Resolution (www.cedr.com) or arbitration, as alternatives to litigation.
13.1 Any notice given to a party under or in connection with the Agreement (including any cancellation notices) shall be in writing, addressed to that party:
13.1.1 in the case of Motors: at its trading address of Hill House, 2 Heron Square, TW9 1EP, London, United Kingdom, or to any other address as communicated by Motors from time to time for notification purposes, for the attention of the Legal Department; and
32.1.2 in the case of the Dealer: at the registered address of the Dealer or Dealer main contact email address as set out in the Order Form and shall (as appropriate) be delivered personally, sent by pre-paid first class post or next Working Day delivery service or by email.
13.2 Any notice shall be deemed to have been received:
13.2.1 if delivered personally, when left at the relevant address referred to above;
13.2.2 if sent by pre-paid first class post or next Working Day delivery service, at 9.00am on the second Working Day after posting; or
13.2.3 if sent by email, one (1) Working Day after transmission provided that the recipient has confirmed safe receipt.
13.3 The provisions of clauses 13.1 and 13.2 shall not apply to service of any proceedings or other documents in any legal action.
13.4 The Agreement constitutes the entire agreement between the parties and governs the Dealer's use of the Services, superseding any prior agreement between the Dealer and Motors for the use of the Services. Subject to the terms of the Agreement (including but not limited to clause 13.10), no amendment, variation or modification to these Motors Standard Terms shall be deemed valid unless it is in writing and signed by the parties.
13.5 The Dealer shall not assign, transfer or deal in any other manner with all or any of its rights or obligations under the Agreement without the prior written consent of Motors.
13.6 A person who is not a party to the Agreement shall not have any rights to enforce its terms.
13.7 Nothing in the Agreement shall be construed as creating a partnership, joint venture or agency of any kind between the parties.
13.8 No failure or delay by either party in exercising any of that party's rights or remedies under the Agreement shall operate as a waiver of those rights or remedies. No right or remedy of either party under the Agreement shall be deemed to be waived unless the waiver is in writing and signed by both parties. No waiver of any breach of the Agreement is a waiver of any subsequent or other breach.
13.9 If any provision of the Agreement shall be held to be illegal, void, invalid or unenforceable the legality, validity and enforceability of the remainder of the Agreement shall not be affected.
13.10 Any amendments to these Motors Standard Terms shall be announced via a notice detailing the amendments in accordance with clauses 13.1 and 13.2, and the updated version will be accessible at media.motors.co.uk/termsandconditions. Dealer will be deemed to have accepted the amendments, unless the Dealer sends to Motors notice of termination of this Agreement in accordance with clause 11.3.
13.11 In the event of a conflict between the Order Form and these Motors Standard Terms, the parties agree that the Order Form shall prevail.
13.13 Motors shall not be liable to the Dealer as a result of any delay or failure to perform its obligations under the Agreement as a result of an event of Force Majeure. If the event of Force Majeure Event prevents Motors from providing any of the Services for more than one (1) month, Motors shall, without limiting its other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to the Dealer.
13.14 On and from the expiry or termination of the Agreement, clauses 6, 7, 8, 9, 11 and 13 of these Motors Standard Terms shall continue in force, together with any other provisions which expressly or impliedly continue to have effect after the expiry or termination of the Agreement.
13.15 The Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.