MOTORS.CO.UK LIMITED (“MOTORS.CO.UK”) – TERMS AND CONDITIONS (the “Conditions”)
In these Conditions:
“Conditions” means the terms and conditions of Motors.co.uk set out in this document, a copy of which is displayed at http://media.motors.co.uk/termsandconditions/;
“Contract” means the contract for the purchase and sale of Services from Motors.co.uk which comprises of the Conditions, the Order Form and Motors.co.uk Policies;
“Contract Year” means each period of 12 (twelve) consecutive calendar months commencing on the Start Date or an anniversary of that date.
“Data Processor” shall have the meaning given to it in the Data Protection Act 1998;
“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.co.uk (including car stock particulars and Dealer contact names/addresses/emails);
“Dealer Control System” means the system made available by Motors.co.uk to the Dealer in order to facilitate use of the Services by the Dealer and which may include Motors.co.uk Software;
“Deliverables” means all products and materials developed by Motors.co.uk 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.co.uk for the supply of Services;
“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 period set out on the Order Form, which shall commence on the Start Date;
“Motors.co.uk” means Motors.co.uk Limited, 1 More London Place, London, SE1 2AF. Registered in England and Wales with Company No: 05975777;
“Motors.co.uk Data” means Personal Data obtained by or disclosed to the Dealer pursuant to the Contract and/or any other dealings between the Dealer and Motors.co.uk;
“Motors.co.uk Network” means the website located at www.motors.co.uk and such other websites managed by or partnered with Motors.co.uk from time to time;
“Motors.co.uk Software” means any software supplied or made available by Motors.co.uk to the Dealer in connection with the provision of the Services;
“Order Form” means Motors.co.uk’s standard order form as may be amended from time to time by Motors.co.uk;
“Personal Data” shall have the meaning given to it in the Data Protection Act 1998;
“Services” means the product/services specified on the Order Form that Motors.co.uk has agreed to supply to the Dealer in accordance with the Conditions;
“Start Date” means the date that the Services are first provided by Motors.co.uk;
“Term” has the meaning set out in clause 3 of these Conditions;
“Termination Payment” means a sum equal to the Fees that would have been due to Motors.co.uk during the remainder of the Initial Minimum Term had the Contract not terminated in accordance with clause 10.5;
“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 Contract.
2. CONTRACT BETWEEN MOTORS.CO.UK AND THE DEALER
2.1 The Order Form constitutes an offer by the Dealer to purchase Services in accordance with these Conditions. No Contract shall subsist between Motors.co.uk and the Dealer until:
2.1.1 an acknowledgment of the Order Form is issued by Motors.co.uk in writing to the Dealer
2.1.2 Motors.co.uk confirms to the Dealer in writing that the Dealer may commence use of the Services; or
2.1.3 Motors.co.uk begins to provide the Services to the Dealer.
2.2 The Dealer confirms that the name included at Part 1 of 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 Contract.
2.4 The Dealer’s attention is particularly drawn to the provisions of clauses 5 and 9.
The term of the Contract shall (unless otherwise terminated in accordance with these Conditions) be for the Initial Minimum Term and shall continue thereafter until terminated by either party serving 30 (thirty) days’ written notice of termination on the other party, such notice to begin no earlier than the end of the Initial Minimum Term (the “Term”).
4.1 Subject to these Conditions and in consideration of payment of the Fees by the Dealer, Motors.co.uk shall provide the Services to the Dealer.
4.2 Motors.co.uk shall use reasonable skill and care and comply with all applicable laws in the United Kingdom 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.co.uk 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.co.uk Network and/or the Dealer Control System is unavailable at any time or for any period; and
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.co.uk Policies;
5.1.2 these Conditions;
5.1.3 any Third Party Additional Terms; and
5.1.3 all applicable laws in the United Kingdom (and in particular where a Dealer is regulated by the FCA, any rules, policies, codes of conduct, guidance, requirements or recommendations issued by the FCA) and, in particular, 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.co.uk in a format compatible with any technical specifications issued by Motors.co.uk;
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.co.uk Network;
5.2.3 be responsible for any charges levied by third parties in relation to the uploading of Dealer Content to Motors.co.uk; and
5.2.4 ensure that only its authorised personnel have access to and use of the Dealer Control System and that a unique login password is only used by each of its authorised personnel.
5.3 The Dealer permits Motors.co.uk to incorporate and display Dealer Content and identify the Dealer as the source of the Dealer Content on the Motors.co.uk Network and in such other products/services as Motors.co.uk 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.co.uk 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.co.uk.
5.6 Motors.co.uk 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.co.uk Network or provided by Motors.co.uk and email correspondence between Dealers and purchasers of vehicles at the email addresses accessible through, or discernible from, the Motors.co.uk 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.co.uk, 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.co.uk 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.co.uk Network, which results in a confirmed finance offer being made to such customer, the Dealer acknowledges and agrees that he 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 any FCA rules, policies, codes of conduct, guidance, requirements or recommendations.
5.9 The Dealer may receive commission from finance companies and/or Motors.co.uk 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.co.uk shall invoice the Dealer for payment of the Fees on a monthly basis. The Dealer shall pay the Fees to Motors.co.uk by direct debit (with such payments to be collected approximately 28 (twenty eight) days after the invoice date) or by such other method as may be agreed in writing by Motors.co.uk. The Dealer acknowledges that an administration charge of 3% (three per cent) 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.co.uk by the due date for payment then:
6.3.1 Motors.co.uk reserves the right to charge interest at the rate of 4% (four per cent) 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.co.uk, Motors.co.uk shall be entitled to suspend Services to the Dealer until payment in full has been made or terminate the Contract.
6.4 Motors.co.uk may vary the Fees at any time (but not so as to be effective before the end of any Initial Minimum Term) by giving at least 2 (two) months’ prior written notice to the Dealer.
6.5 Motors.co.uk 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.co.uk to the Dealer on termination of the Contract subject to Motors.co.uk’s right to offset any outstanding amounts payable by the Dealer against such deposit.
6.6 Motors.co.uk 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.co.uk reserves the right to charge the Dealer £2.00 (two GBP) per vehicle per week on the basis of the average daily number of vehicles advertised by Motors.co.uk 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.co.uk within 28 (twenty eight) days of the invoice date. If the Dealer does not notify Motors.co.uk 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 Dealer Control System) and the Motors.co.uk Network are owned or controlled for these purposes by Motors.co.uk and that the Dealer has no rights in, or to, such intellectual property other than the right to use in accordance with these Conditions 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 Contract, Motors.co.uk hereby grants to the Dealer a non-exclusive, revocable, non-transferable right to use the Services and the Deliverables during the Term.
7.3 The Dealer shall not:
7.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
184.108.40.206 and except to the extent expressly permitted under these Conditions, 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; or
220.127.116.11 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services and/or Deliverables; or
7.3.2 access all or any part of the Services and Deliverables in order to build a product or service which competes with the Services; or
7.3.3 use the Services and/or Deliverables to provide services to third parties; or
7.3.4 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
7.3.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Deliverables.
7.4 The Dealer grants to Motors.co.uk 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.co.uk or any third party.
Motors.co.uk and the Dealer agree to keep the terms of the Contract 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 Contract.
9. LIMITATION OF LIABILITY
9.1 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 Dealer Control System) and the Motors.co.uk Network are excluded to the fullest extent permitted by law.
9.2 Motors.co.uk shall not be liable to the Dealer under or in connection with the Contract 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.co.uk had been advised of the possibility of such damages or loss).
9.3 Except as provided in clause 9.4, the total liability of Motors.co.uk to the Dealer in respect of any loss or damage under or in connection with the Contract in any Contract Year shall not exceed 50% (fifty percent) of the aggregate amount of Fees paid by the Dealer in in the previous Contract Year expect in the first Contract Year when it shall not exceed £4,000.00 (four thousand GPB).
9.4 Nothing in the Contract shall exclude or limit liability for death or personal injury resulting from the negligence of Motors.co.uk or for fraud, fraudulent misrepresentation or for any other liability that cannot be excluded or limited by law.
9.5 The Dealer accepts full liability for and shall indemnify Motors.co.uk on demand against any and all losses, damages, costs and expenses (including reasonable legal fees) incurred by Motors.co.uk in relation to any third party claim arising from the Dealer Content, violation by the Dealer of these Conditions, or misuse by the Dealer of the Services, Deliverables, technology supporting the Services (including the Dealer Control System) and the Motors.co.uk Network except to the extent that the foregoing results directly from the negligence of Motors.co.uk.
9.6 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 Contract.
10. TERMINATION AND CONSEQUENCES OF TERMINATION
10.1 Either party may terminate the Contract:
10.1.1 immediately upon written notice to the other party if the other party commits any material or persistent breach of the Contract and, in the case of a breach which is capable of remedy, fails to remedy the same within 14 (fourteen) days after receipt of a written notice giving particulars of the breach and requiring it to be remedied; or
10.1.2 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.
10.2 Notwithstanding clause 3, Motors.co.uk may terminate the Contract during the Initial Minimum Term upon giving not less than 2 (two) months’ written notice to the Dealer.
10.3 Upon termination of the Contract for any reason:
10.3.1 the Dealer shall cease using the Services and Deliverables, delete any of the Dealer’s login passwords and erase any Motors.co.uk Software;
10.3.2 Motors.co.uk shall disable the Dealer’s use of the Services and the Dealer shall no longer be able to retrieve any Dealer Content; and
10.3.3 the Dealer shall immediately pay to Motors.co.uk all remaining unpaid sums due to Motors.co.uk.
10.4 Termination of the Contract shall not affect the accrued rights or liabilities of Motors.co.uk or the Dealer nor any provision of the Contract which is expressed or required to survive or operate in such event.
10.5 If Motors.co.uk, in accordance with clause 10.1, or the Dealer terminates the Contract prior to the expiry of Initial Minimum Term the Dealer shall pay to Motors.co.uk the Termination Payment.
11.1 Notices: Any notice given to a party under or in connection with the Contract (including any cancellation notices) shall be in writing, addressed to that party:
11.1.1 in the case of Motors.co.uk: at its registered office address or
11.1.2 in the case of the Dealer: at the postal address or the Dealer 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.
11.2 Any notice shall be deemed to have been received:
11.2.1 if delivered personally, when left at the relevant address referred to above,
11.2.2 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,
11.2.3 if sent by email, 1 (one) working day after transmission provided that the recipient has confirmed safe receipt.
11.3 The provisions of clauses 11.1 and 11.2 shall not apply to service of any proceedings or other documents in any legal action.
11.4 The Contract 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.co.uk for the use of the Services. Subject to the terms of the Contract (including but not limited to clause 11.10), no amendment, variation or modification to these Conditions shall be deemed valid unless it is in writing and signed by the parties.
11.5 The Dealer shall not assign, transfer or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Motors.co.uk.
11.6 A person who is not a party to the Contract shall not have any rights to enforce its terms..
11.7 Nothing in the Contract shall be construed as creating a partnership, joint venture or agency of any kind between the parties.
11.8 No failure or delay by either party in exercising any of that party’s rights or remedies under the Contract shall operate as a waiver of those rights or remedies. No right or remedy of eitparty under the Contract shall be deemed to be waived unless the waiver is in writing and signed by both parties. No waiver of any breach of the Contract is a waiver of any subsequent or other breach.
11.9 If any provision of the Contract shall be held to be illegal, void, invalid or unenforceable the legality, validity and enforceability of the remainder of the Contract shall not be affected.
11.10 Motors.co.uk reserves the right to amend the Conditions at any time and from time to time and it is the obligation of the Dealer to check if changes have been made. The Dealer’s continued use of the Services after changes are posted on-line at http://media.motors.co.uk/termsandconditions/ shall constitute acceptance of the new terms and conditions.
11.11 We may contact you by e-mail, text message or telephone calls based on transactional needs in relation to the service provided and for promotional purposes regarding marketing material and special offers that may be of interest to you. Should you wish to unsubscribe from any promotional communications from us, please follow the process outlined in such communication, or e-mail your request to firstname.lastname@example.org.
11.12 The parties shall comply with the Data Protection Act 1998.
11.12.1 To the extent that the Dealer acts as a Data Processor of Motors.co.uk in respect of any Personal Data, it shall only process such Personal Data strictly in accordance with the instructions of Motors.co.uk.
11.12.2 The Dealer shall at all times have in place appropriate technical and organisational measures to protect the security of the Personal Data and to guard against unauthorised or unlawful processing of and against accidental loss or destruction of, or damage to, the Personal Data.
11.12.3 The Dealer shall have no rights in respect of Motors Data except as set out in the Contract.
11.12.4 The Dealer may only use Motors Data for internal analytic purposes. The Dealer 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 Contract.
11.12.5 The Dealer shall indemnify Motors.co.uk from any and all losses suffered by Motors.co.uk, including regulatory fines, resulting from and/or in connection with breach of this clause by the Dealer.
11.13 In the event of a conflict between the Order Form and the Conditions, the parties agree that the Order Form shall prevail.
11.14 Motors.co.uk shall not be liable to the Dealer as a result of any delay or failure to perform its obligations under the Contract as a result of an event of Force Majeure. If the event of Force Majeure Event prevents Motors.co.uk from providing any of the Services for more than 1 (one) month, Motors.co.uk shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Dealer.
11.15 On and from the expiry or termination of the Contract, clauses 6, 7, 8, 9, 10 and 11 of these Conditions shall continue in force, together with any other provisions which expressly or impliedly continue to have effect after the expiry or termination of the Contract.
11.16 The Contract shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the courts of England to settle any dispute concerning the Contract.