Advertising Terms and Conditions for use of the CarCliq Service
The CarCliq User Terms and Conditions can be found here.
1. THESE TERMS AND CONDITIONS
1.1 You are reading a legal document which is the "Terms and Conditions" between you and us for your use of the CarCliq Service (as defined below). We are Car Seller International Limited, a company registered in England under number 04363371 with our registered office at 1st Floor, 49 Peter Street, Manchester, England, M2 3NG. (and we refer to ourselves as "CarCliq", “we” or “us” or “our” in this document). If you have any comments, queries or suggestions about the CarCliq Service, you can write to us at this address or email us at [email protected]
1.2 Please read these Terms and Conditions carefully. By submitting or agreeing to our Telesales Team to submit an order online for advertising space on the website hosted at www.carcliq.co.uk or by signing our order form for advertising space, or by agreeing via your aggregator dealer portal you are agreeing to these Terms and Conditions.
1.3 These Terms and Conditions were most recently updated on 7th day of September 2020.
1.4 We shall keep a copy of these Terms and Conditions, but you are advised to print and keep a copy of these Terms and Conditions and each amended version for your own records and future reference.
2. DEFINITIONS
2.1 In these Terms and Conditions, unless the context otherwise requires:
2.1.1 “Acknowledgement” means our acknowledgement of your Order;
2.1.2 “Advert” means any advert for the sale by the Advertiser of a vehicle which is to be published on the Website;
2.1.3 “Advertiser” means a person who is an advertiser of a vehicle that is to be advertised on the Website, or any person who receives any 3rd party consumer automotive lead via one of our Partners;
2.1.4 “Advertiser Account” means the account allocated to you by us for your access to functionality to allow you to submit Information to us;
2.1.5 “Affiliate” means anyone who controls or is controlled by the applicable Party, or anyone controlled by someone who controls the applicable Party; where “control” means the power directly or indirectly to secure that the affairs of the controlled person are conducted in accordance with the wishes of the controlling person:
2.1.5.1 by means of the holding of shares, or the possession of voting power, in or in relation to that controlled person; or
2.1.5.2 by virtue of any powers conferred by the articles of association, or any other document, regulating that controlled person;
2.1.6 “Agreement” means your order in respect of advertising on the Website or any 3rd party consumer automotive lead in accordance with these Terms and Conditions which we accept in accordance with Clause 4.6 (and any subsequent Variation);
2.1.7 “Breach of Duty” has the meaning given to it in Clause 14.8.1;
2.1.8 “Business Day” means any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London;
2.1.9 “CarCliq Service” means the service provided by us to you which allows you to publish Adverts on the Website or Partner Websites or receive any 3rd party consumer automotive lead, in accordance with the relevant Order;
2.1.10 “Confidential Information” means any information in any form or medium obtained by one Party from or on behalf of the other Party pursuant to this Agreement which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential whether disclosed or obtained before, on or after the date of commencement of this Agreement together with any reproductions of such information or any part of this information (and our “Confidential Information” shall include any information relating to our methodology, software, Website, CarCliq Service, or our relationship with any other 3rd party consumer automotive lead generators, Advertisers and those other Advertisers’ confidential information);
2.1.11 “Cost Per Click” means where the Advertiser pays us an amount each time a User clicks on the link placed within the Advert;
2.1.12 “Cost Per Lead” means where the Advertiser pays us an amount each time a User emails or calls using the contact details we provide within the Advert;
2.1.13 “Event of Force Majeure” has the meaning given to it in Clause 16.1;
2.1.14 “Fees” means the fees to be paid by you to us for access to or receipt of the CarCliq Service, as stipulated in the Order;
2.1.15 “Individual” means a person who makes an order to us for the placement of an advert on the Website in relation to a vehicle, where such order is to place adverts in relation to five or fewer vehicles per year;
2.1.16 “Information” means the information to be supplied by you to us by such means as we may stipulate from time to time (which may include the use of an upload provider that has been approved by us in writing to provide such information via XML feed) in relation to a vehicle which is to be the subject of an Advert;
2.1.17 “Intellectual Property Rights” means all intellectual and industrial property rights of any nature anywhere in the world, including copyright and related rights, trademarks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future;
2.1.18 “Liability” has the meaning given to it in Clause 14.8.2;
2.1.19 “Order” means the order form setting out the commercial details of the agreement between the Parties in respect of advertising on the Website or Partner Websites or 3rd party lead generators, and which:
2.1.19.1 if you are an Individual, shall be submitted by you to us via the Website or submitted by us on your behalf; and
2.1.19.2 if you are a Trader, shall be in the form stipulated by us from time to time and shall be signed by both Parties;
2.1.20 “Parties” means us and you, and “Party” shall refer to one of us and you;
2.1.21 “Subscription” means where the Advertiser pays us an amount per vehicle advertised by the Advertiser on the Website per week;
2.1.22 “Trader” means a person who makes an order to us either for you to receive 3rd party consumer automotive leads, or for the placement of an advert on the Website or Partner Websites in relation to a vehicle (where such order is to place adverts in relation to six or more vehicles per year);
2.1.23 “Upload Provider” means such third party as may be approved by us in writing for the provision of Information via XML feed to the CarCliq Service on your behalf;
2.1.24 “User” means a user of the Website for the purposes of searching for vehicles for potential purchase;
2.1.25 “Variation” means a variation to an Order signed by each of the Parties (or in such form as we may, in our absolute discretion, permit from time to time);
2.1.26 “Website” means the website hosted at www.carcliq.co.uk and
2.1.27 “you” means the advertiser who submits information to us in relation to a vehicle for listing for sale on the Website as an advert or the person who will receive a 3rd party consumer automotive lead, whose details are more particularly set out in the Order.
2.1.28 “Partner/ Partner Website” means any third-party website or digital platform on which an Advert is to be placed as solely determined by CarCliq
2.2 In these Terms and Conditions:
2.2.1 references to “Clauses” are to the clauses of these Terms and Conditions;
2.2.2 words importing a gender shall include the other gender and the neutral;
2.2.3 references to persons and entities include individuals, bodies corporate, firms, partnerships or unincorporated associations;
2.2.4 the singular includes the plural and vice versa;
2.2.5 the headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this these Terms and Conditions;
2.2.6 references to "includes" or "including" or like words or expressions shall mean without limitation;
2.2.7 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
2.2.8 references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 17) includes in electronic form.
3. AGREEMENT
3.1 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Advertiser in whatever form and at whatever time. These Terms and Conditions apply to all Adverts.
3.2 This Agreement and any other document referred to in this Agreement and any other terms and conditions specifically agreed between you and us in writing) contains all the terms agreed between the Parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as expressly stated in this Agreement. Neither Party shall have any remedy in respect of any untrue statement made by the other upon which that Party relied in entering into this Agreement (unless such untrue statement was made fraudulently or was as to a matter fundamental to a Party’s ability to perform this Agreement) and that Party’s only remedies shall be for breach of contract as provided in this Agreement. Use of the Website as a User is governed by separate terms and conditions.
3.3 This Agreement shall be legally formed, and the Parties shall be legally bound on the date on which we accept your Order in accordance with Clause 4.6.
3.4 Except as expressly provided otherwise in this Agreement, no change to this Agreement shall be binding unless it is agreed in writing by each of us and you.
3.5 In the event of any conflict between the provisions of these Terms and Conditions and the provisions of an Order and any document referred to within these Terms and Conditions or an Order, then the following order of precedence shall apply:
3.5.1 an Order, prevails over
3.5.2 these Terms and Conditions, which prevails over
3.5.3 any other document.
3.6 Each Order constitutes a separate agreement. There may be more than one agreement between the Parties in force at the same time as this Agreement.
4. MAKING AN ORDER
4.1 To make an Order, you must be over the age of 18.
4.2 When making an Order:
4.2.1 if you are an Individual, our telesales Team will submit the advertisement on your behalf, or you must follow the instructions on the Website as to how to make your Order and for making changes to your Order before you submit it to the Website. If you have already registered for an Advertiser Account, you can place your Order by logging into your Account and following the instructions on-screen. If it is the first time you have placed an Order, you should follow the instructions on the Website to place your Order; and
4.2.2 if you are a Trader, you must submit an Order to us in the form stipulated by us from time to time.
4.3 If you are an Individual, irrespective of any previous price you have seen or heard, once you have completed the form of Order via our telesales Team or available on the Website which you would like to submit, you will then be shown the charges you must pay including VAT, if applicable. Unless otherwise stipulated on the Website, all charges are in the currency then in force in England (i.e. currently pounds sterling). Subject to Clause 4.9 below, this is the total that you will pay for that Order.
4.4 If you are a Trader, irrespective of any previous price you have seen or heard, the charges that you must pay including VAT will be listed in the Order. This is the total that you will pay for that Order.
4.5 When you submit an Order to the Website or sign an Order (as applicable), you agree that you do so subject to these Terms and Conditions current at the date you submit or sign (as applicable) that Order. You are responsible for reviewing the latest Terms and Conditions each time you submit or sign (as applicable) an Order.
4.6 We shall not be obliged to provide access to the CarCliq Service to you, and your Order remains valid as an offer, until we have accepted your Order as follows:
4.6.1 if you are an Individual, unless expressly stating that we accept your Order, an email, letter, fax or other Acknowledgement of your Order by us is purely for information purposes and does not constitute our acceptance of your Order. In that Acknowledgement, we may give you an Order reference number and details of the Adverts that are the subject of your Order. We may, in our discretion, refuse to accept an Order from you for any reason. This Agreement shall be formed, and we shall be legally bound to provide access to the CarCliq Service to you when we accept your Order. Acceptance shall take place when we send an acceptance together with details of how to access the CarCliq Service to you by email. Without affecting your obligation to pay us earlier, we may send an invoice to you at any time after we have accepted your Order. Until the time when we accept your Order, we reserve the right to refuse to process your Order and you reserve the right to cancel your Order. If we or you have cancelled your Order before we have accepted it, then we will promptly refund any payment already made by you or your credit or debit card company to us for your Order; and
4.6.2 if you are a Trader, unless we sign your Order, that Order has not been accepted. If we sign your Order, this Agreement shall be formed, and we shall be legally bound to provide access to the CarCliq Service to you.
4.7 Your right to access the CarCliq Service shall commence upon our acceptance of your Order in accordance with Clause 4.6, at which point we will provide to you details of how to access the CarCliq Service and you will have full access to the CarCliq Service by using the user name and password that you create for your Advertiser Account in accordance with Clause 5.
4.8 If you are an Individual:
4.8.1 and you discover that you have made a mistake with your Order after you have submitted it to the Website, please contact [email protected] immediately;
4.8.2 we try very hard to ensure that the price given to you for an Order on the Website is accurate, but the price of your Order will need to be validated by us as part of our acceptance procedure. If the price for the Order changes before we accept your Order, we will contact you and ask you to confirm that you wish to proceed at the amended price; and
4.8.3 you may cancel your purchase of access to the CarCliq Service, and obtain a full refund, at any time within 14 days beginning on the day after we accept your Order in accordance with Clause 4.6, provided that you have not yet submitted any Information using your Advertiser Account; once you have submitted Information using your Advertiser Account, the right to cancel set out in the foregoing of this Clause 4.8.3 shall cease. Details of your right of cancellation under this Clause 4.8.3 and an explanation of how to exercise it are provided with details of your Advertiser Account when we accept your Order. This provision does not affect your other statutory rights as a consumer. To cancel as detailed in this Clause 4.8.3, please contact [email protected] immediately.
4.9 If you would like to upgrade or downgrade your access to the CarCliq Service, by, for example, adding more Adverts to this Agreement, you must send to us a signed Variation. If both we and you have signed the Variation, references to this “Agreement” shall be interpreted as including the Variation as well as the initial Order prior to any Variation together with these Terms and Conditions, which shall remain in full force and effect. Once a Variation has been signed by each of us and you, it shall take effect on such date as is set out in that Variation.
5. ADVERTISER ACCOUNT
5.1 Following our acceptance of your Order, we shall allocate to you, and send to you details of, an Advertiser Account by us for use of the CarCliq Service. The Advertiser Account shall allow you to submit Information.
5.2 You may access the Advertiser Account only with a browser that is compatible with the CarCliq Service, including any security features that are a part of the CarCliq Service.
5.3 In order for us to allocate to you an Advertiser Account, you shall provide such information as we may require from time to time.
5.4 Once you are allocated an Advertiser Account, you will be asked to create a user name and password for the Advertiser Account. You must keep the password confidential and immediately notify us if any unauthorised third party becomes aware of that password or if there is any unauthorised use of the Advertiser Account or any breach of security known to you. You agree that any person to whom your user name or password is disclosed is authorised to act as your agent for the purposes of using the Advertiser Account. You are entirely responsible if you do not maintain the confidentiality of your password.
5.5 We reserve the right to prevent you using the CarCliq Service and/or the Advertiser Account.
6. OBLIGATIONS IN RESPECT OF LISTING ADVERTS ON THE WEBSITE
6.1 In order for the Advert to be listed on the Website, you shall provide to us, through such medium and by such means as we may stipulate from time to time, such Information as we may stipulate as required from time to time, but which shall include the vehicle name, specifications and images. Each Advert must relate specifically to a vehicle.
6.2 You shall ensure that all Information, including any images, you provide to the CarCliq Service or the relevant Upload Provider regarding an Advert is of at least the same quality, completeness and accuracy as the highest quality and most complete and accurate content and other information displayed or used by you or your Affiliates for similar advertising on any sales channel other than the Website. We shall not be responsible, and we shall have no Liability, where any Advert does not appear on the Website as a result of you not supplying sufficient Information as may be stipulated on the CarCliq Service from time to time.
6.3 The following items shall not be listed on the Website by you:
6.3.1 items that are not vehicles for use on mainstream public roads in the United Kingdom;
6.3.2 items whose sale, distribution or offering for sale is prohibited by any applicable law or regulation;
6.3.3 items that infringe another party's Intellectual Property Rights;
6.3.4 offensive material, including material that incites racial hatred or promotes discrimination (including based on race, sex, religion, national origin, physical ability, sexual orientation or age);
6.3.5 stolen goods; and
6.3.6 any other types of items that, in our absolute discretion, are to be excluded from listing on the Website.
6.4 By listing an Advert on the Website:
6.4.1 you warrant to us and agree to warrant to Users that:
6.4.1.1 you are the true owner of the vehicle or are properly authorised to sell it by the true owner and are able to transfer good title to the vehicle free from any third party claims, liens or encumbrances; and
6.4.1.2 the information in the Advert is true, accurate, current and complete, is not misleading or otherwise deceptive and is up-to-date; and
6.4.2 unless we have agreed with you in advance and in writing to the contrary, you warrant to us that:
6.4.2.1 if you are a business, you are duly organised, validly existing and in good standing under the laws of a relevant jurisdiction within the United Kingdom;
6.4.2.2 you will only use the CarCliq Service in accordance with this Agreement;
6.4.2.3 the listing of the Information as an Advert by us shall not infringe any Intellectual Property Rights or rights to privacy owned by any third party;
6.4.2.4 the vehicle that is the subject of the Advert is not one that would fall within any of the prohibited items described in Clause 6.3; and
6.4.2.5 the vehicle that is the subject of the Advert is safe and bears any marking and labelling required under applicable law and regulations.
6.5 You must maintain, and update Information provided by you to the CarCliq Service as applicable. You shall not impersonate any person or use a name that you are not legally authorised to use. If you provide false or incorrect information or do not notify us of changes to the Information immediately, we reserve the right to terminate your use of the CarCliq Service immediately and without notice to you.
6.6 You shall not in any way use the CarCliq Service or submit to us or to the CarCliq Service or to any User or other Advertiser using the CarCliq Service anything which in any respect:
6.6.1 is in breach of any law, statute, regulation or byelaw of any applicable jurisdiction;
6.6.2 is fraudulent, criminal or unlawful;
6.6.3 is inaccurate or out-of-date;
6.6.4 is obscene, indecent, pornographic, vulgar, profane, racist, sexist, discriminatory, offensive, derogatory, harmful, harassing, threatening, embarrassing, malicious, abusive, hateful, menacing, defamatory, untrue or political;
6.6.5 impersonates any other person or body or misrepresents a relationship with any person or body;
6.6.6 may infringe or breach the copyright or any Intellectual Property Rights or privacy or other rights of us or any third party;
6.6.7 may be contrary to our interests;
6.6.8 is contrary to any specific rule or requirement that we stipulate on the Website or the CarCliq Service, a particular part of the Website or the CarCliq Service or the Website or the CarCliq Service generally; or
6.6.9 involves your use, delivery or transmission of any viruses, unsolicited emails, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
6.7 You shall not use any automated means (such as scripts) to access the CarCliq Service or collect any information from the Website or the CarCliq Service unless we explicitly agree in writing to allow you to do so.
6.8 You shall ensure that any link (graphical, text or otherwise) that you post or maintain to the Website on any location, or is posted or maintained on your behalf, links users directly to the home page of the Website, without displaying or performing any other advertisement, promotion or content (whether audio, visual, audio-visual or otherwise). You shall not take any action, or assist, authorise or encourage any third party to take any action, that would cause the appearance or presentation of the Website as seen by users linking to the Website to be different from that seen by users who access the Website by hand-entering the applicable URL into a generally commercially available browser which has not been customised for a particular person or entity. You shall not, at any time, make use of any framing techniques or technologies, interstitial advertisements, pop-up windows or consoles or other similar items or techniques in connection with any link to or on the Website.
6.9 No links (graphical, text or otherwise) shall be permitted in any Advert except with our specific consent (to be withheld in our absolute discretion) or where the Order provides for a Cost Per Click basis. Where we give our consent to the inclusion of a link in an Advert, it shall only be to link from the Website directly to the relevant page of your own website relating to the particular Advert in which the link is placed, and you shall be exclusively responsible for ensuring that the link is correct and that it directs to the correct website. Your website shall not include anything that might interfere with or disrupt the Website and shall not include any endorsement (or deemed endorsement) of your website by us. If you become aware that any link you have included in an Advert is incorrect or does not work, you must notify us immediately. We shall not be responsible, and shall have no Liability, for any website in relation to which you include a link in an Advert.
6.10 We shall not accept any Liability for information or content provided to us or the CarCliq Service by you that is in breach of any provision of this Agreement and that is subsequently posted on the Website.
6.11 We shall not be responsible, and shall have no Liability, for the accuracy of the Information.
6.12 You shall audit your Adverts on a regular basis to ensure ongoing compliance with this Agreement. We make no representations that items not appearing on the prohibited items list in Clause 6.3 may be sold or distributed or offered for sale under applicable law.
6.13 In respect of Adverts, you shall:
6.13.1 list the correct mileage for the vehicles;
6.13.2 not include in any Advert vehicles that have been written-off;
6.13.3 price vehicles consistently within Adverts and across all other websites on which the relevant vehicles are advertised for sale; and
6.13.4 not duplicate Adverts.
6.14 If you are a Trader, it is your absolute responsibility to ensure that users of the Website understand from an Advert that you are not a private seller and that you are selling vehicles as a business.
6.15 If the Website or the CarCliq Service is accessed by you from outside the United Kingdom, this is entirely at your risk. We make no representation that the Website or the CarCliq Service is available or otherwise suitable for use outside of the United Kingdom. If you choose to access or use the Website or the CarCliq Service from or in locations outside the United Kingdom, you do so on your own initiative and are responsible for:
6.15.1 ensuring that what you are doing in that country is legal; and
6.15.2 the consequences and compliance by you with all applicable laws, regulations, byelaws, codes of practice, licences, registrations, permits and authorisations.
7. ADDITIONAL PRODUCTS
7.1 In respect of the Trader receiving leads, the following provisions apply:
7.1.1 The Advertiser will subscribe to a Package and any Additional Products as detailed in an Order Confirmation or email confirmation and (as applicable) any Order Variation.
7.1.2 CarCliq does not guarantee that an Advert will appear on any or a specific number of Partner Websites. CarCliq may at its sole discretion vary the Partner Websites on which an Advert appears from time to time:
8. OUR OBLIGATIONS
8.1 You authorise us to act as your limited representative solely to list Adverts on the Website on your behalf or provide you with leads. We help facilitate transactions in relation to which initial contact between you and Users is made using the Website or Partner Websites or as a result of a 3rd party lead, but we are not a buyer or a seller of vehicles, and we are not an auctioneer. We provide a venue for Users and Advertisers to make initial contact in accordance with the provisions of this Agreement and any agreement between us and a User for the purposes of negotiating and completing transactions.
8.2 We are not an agent of you and shall have no Liability for the vehicles. The contract formed on the sale of a vehicle is solely between the Advertiser and the User. We shall have no Liability for the failure by either the User or the Advertiser to fulfil any obligations relating to such transaction. We are not obliged to mediate between the Advertiser and the User or to enforce or execute fulfilment of any contract.
8.3 Using the Information provided to us by you:
8.3.1 we shall list the relevant Adverts on the Website in a way that we, in our absolute discretion, consider will attract Users to consider a purchase of a vehicle that is the subject of an Advert; and
8.3.2 we shall list you on our list of Advertisers on the Website that currently have adverts for the sale of vehicles listed on the Website.
8.4 Once we have accepted your Order and or acknowledgement to advertise with us, and received the appropriate Information from you in accordance with this Agreement, we shall post the relevant Advert on the Website as soon as reasonably practicable following such receipt.
8.5 We shall use our reasonable endeavours to update your details on the Website within three Business Days of us receiving any such updated details from you.
8.6 We retain the right to, if we consider it appropriate (in our absolute discretion):
8.6.1 immediately halt the listing of any Advert;
8.6.2 prevent or restrict access to the Website or the CarCliq Service; and
8.6.3 take any other action to preserve and protect the Website or the CarCliq Service and/or to restrict access to or availability of or remove any objectionable material, feedback, ratings, inaccurate listings, inappropriately categorised items, unlawful items or items prohibited for listing on the Website under this Agreement.
8.7 We reserve the right and have absolute discretion, but not an obligation, to remove, screen or edit any content that breaches this Agreement or any other agreement or is otherwise objectionable. Without prejudice to any other provision of this Agreement, we reserve the right to refuse listings or to immediately remove any listings where we object to how you identify yourself on the Website or through the CarCliq Service (including your name or use of your Intellectual Property Rights) and/or if you are otherwise making inappropriate use of the CarCliq Service or the Website contrary to the requirements set out in this Agreement.
8.8 We warrant that we shall use our reasonable skill and care in making available the Website and the CarCliq Service.
8.9 We do not warrant that the CarCliq Service or Website, or Partner Websites or 3rd party leads will be uninterrupted, error-free, or secure from unauthorised access, or that they will meet the individual requirements of the Advertiser or the User. Whist we endeavour to make the Website and the CarCliq Service available 24 hours a day, we shall not have any Liability if for any reason the Website or the CarCliq Service are unavailable for any time or for any period. We make no warranty that your access to the Website or the CarCliq Service will be uninterrupted, timely or error-free. Due to the nature of the Internet, this cannot be guaranteed. In addition, we may occasionally need to carry out repairs, maintenance or introduce new facilities and functions.
8.10 We are not responsible for any equipment, hardware, deliverables, software or services not expressly stipulated in this Agreement that we will provide. We do not warrant that the Website or the CarCliq Service will be compatible with all hardware and software which you may use. We shall not have any Liability for damage to, or viruses or other code that may affect, any computer equipment, software, data or other property as a result of your access to or use or receipt of the Website or the CarCliq Service, or Partner Websites or 3rd party leads or your obtaining any material from, or as a result of using, the Website or Partner Websites, the CarCliq Service or leads. We shall also not have any Liability for the actions of third parties.
8.11 Except for any matter upon which we specifically agree in writing with you to advise or do, we shall not be responsible or have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else (including on any laws, rules, regulations, bye-laws or codes of practice).
8.12 Access to the Website and the CarCliq Service may be suspended or withdrawn to or from you or a User temporarily or permanently at any time and without notice. We may also impose restrictions on the length and manner of usage of any part of the Website or the CarCliq Service or access for any reason. If we impose restrictions on you, you must not attempt to use the Website or the CarCliq Service under any other name or user.
8.13 We may change or update the Website or the CarCliq Service and anything described in it or them without notice to you.
8.14 Whilst we endeavour to ensure that information and materials on the Website and the CarCliq Service and consumer automotive leads are correct, no warranty or representation, express or implied, is given that they are complete, accurate, up-to-date, fit for a particular purpose and, to the extent permitted by law, we do not accept any Liability for any errors or omissions.
8.15 Except where expressly provided for within this Agreement, we exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Website, or Partner Websites or any 3rd party consumer automotive leads and the CarCliq Service.
8.16 Subject to Clause 8.5, we shall use our reasonable endeavours where reasonably practicable to correct any errors or faults on the Website, or our Partners Websites or the CarCliq Service as soon as reasonably practicable after we become aware of such error or fault. You acknowledge that this may take up to two Business Days.
8.17 The order of listing of adverts and Advertisers on the Website is arranged in our absolute discretion, and we offer no guarantee, and have no obligation to ensure, that an Advert or your details will be placed in a certain position in the search results when a User performs a search on the Website.
8.18 When you submit images to the CarCliq Service for inclusion in an Advert, we accept no responsibility or Liability for the quality of the representation of that image on the Website.
8.19 We may reject or amend any Information contained in an Advert to comply with any legal or moral obligations on us or you, in response to complaints or for any other quality control or technical reasons.
8.20 You may not include details of any finance options in relation to a vehicle within an Advert except with our prior written consent (which may be withheld in our absolute discretion). In the event that we give you consent to include such details within an Advert, you shall also include in the Advert full details of where the terms and conditions of such finance options can be found.
8.21 We may display third party advertising on the website in such form as we may decide from time to time (in our absolute discretion). We shall not be responsible or have any Liability for the contents of such advertising or the possible or actual impacts such advertising may have on Users or their decisions.
8.22 We provide a “Community” on the Website for Users to view, comment and enter into discussions relating to news in the vehicle industry. Any news articles we provide on the Website are chosen due to their relevance to the industry in which we operate, and we shall not be responsible or have any Liability for any consideration of, or reliance placed upon, those articles, or any comments by or discussions between Users relating to those articles, by other Users. We do not moderate posts to the Community by Users, meaning that we do not vet, moderate or check in any way any posting before it appears in the Community. However, Users can report to us any abusive or inappropriate posting or anything which violates the rules that we display on the Website from time to time for the Community by using the reporting functionality available on the Website.
8.23 In order to drive traffic towards the Website, we may place an Advert, or enable access to an Advert via our search engine function, on a third-party website without notice to an Advertiser.
8.24 The telephone number for an Advertiser listed on the Website may be provided to a third-party call tracking company for the purposes of tracking calls to Advertisers by Users. This information enables us to keep an accurate and up-to-date record of all call traffic to an Advertiser from the Website via a tracking number allocated to each Advertiser.
9. PAYMENT
9.1 In consideration for obtaining access to the CarCliq Service provided by us pursuant to this Agreement, you shall pay to us the Fees.
9.2 The Fees shall be as initially set out in the Order and may be on a Subscription, Cost Per Lead, Cost Per Click or CarCliqPro basis, as identified in the Order.
9.3 If you are a Trader:
9.3.1 unless otherwise provided in the Order, you shall pay us for all Fees in advance for each month of your access to the CarCliq Service;
9.3.2 we may require that you pay a four-week prepayment to us as a deposit for the future Fees payable under an Order;
9.3.3 the minimum term for this Agreement shall be 13 weeks from the date on which the Order is signed by both you and us (or such other period as is set out in the Order); and
9.3.4 in the event of a Variation, the 13-week minimum term set out in Clause 9.3.3 shall recommence on the date of such Variation.
9.4 If you are an Individual, you shall pay us for all Fees in advance of the period for which you would like the Order to be listed on the Website.
9.5 All Fees paid by you shall be non-refundable, except in circumstances where we are in breach of our obligations under this Agreement or in an Event of Force Majeure.
9.6 Unless set out otherwise in this Agreement, we may issue invoices to you in advance of the commencement of your access to the CarCliq Service. If you are a Trader, we may issue invoices on a monthly basis in advance of the access to which the invoice relates.
9.7 We shall provide such information as you may reasonably require in order for you to ascertain the Fees due in accordance with this Agreement.
9.8 All sums due to us are exclusive of VAT and other sales or import or export duties or taxes (if applicable) which you shall pay to us in addition at the same time as payment of the Fees.
9.9 You shall pay us by any payment method reasonably stipulated by us (where such stipulation may be on the Website or in the form of Order that we stipulate from time to time). No payment shall be considered paid until it is received by us in cleared funds in full. We may need to run credit checks or other anti-fraud checks in certain cases – and you agree to cooperate with these checks.
9.10 If you are asked for details of a payment card, you must be fully entitled to use that card and account. The card and account must have sufficient funds to cover the proposed payment to us.
9.11 You must ensure that all details you provide to us for the purpose of paying the Fees are correct, that any credit or debit card or account which you use is your own and that there are sufficient funds or credit facilities to cover the cost of those Fees. We reserve the right to obtain validation of your account or credit or debit card details before allowing you to access the CarCliq Service.
9.12 Time is of the essence for payment of the Fees.
9.13 Payment of all sums due to us under this Agreement shall be made by you in full without any set-off, deduction or withholding whatsoever.
9.14 If you are late in paying any part of any monies due to us under this Agreement or any other agreement between us and you, we may (without prejudice to any other right or remedy available to it whether under this Agreement or by any statute, regulation or bye-law) do either or both of the following:
9.14.1 charge interest and other charges on the amount due but unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and
9.14.2 provided that we give you no less than two days’ prior written warning, suspend the performance of this Agreement and any other agreement between us and you until payment in full has been made.
9.15 In the event of any suspension or termination of this Agreement (except where we are in breach of our obligations under this Agreement or in an Event of Force Majeure), we shall not refund any Fees already paid to us, whether or not you have received the services to which those Fees relate.
9.16 We may change the Fees by giving to you one week’s written warning and for any reason, where such change shall take effect:
9.16.1 if you are an Individual, from the next due date for payment of Fees; and
9.16.2 if you are a Trader, from the end of the 13-week minimum term or, if that period has already passed, from the next due date for payment of Fees.
9.16.3 if you are a Trader we may offer you a trial period at no cost to advertise on the website. In these circumstances by uploading your vehicles to the website you are agreeing to these Terms and Conditions.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 You grant to us and our Affiliates and Partners a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to exercise all Intellectual Property Rights over the Information provided by you to us under this Agreement.
10.2 We grant to you a limited non-transferrable licence to make use of the Website and the CarCliq Service in accordance with this Agreement. This licence expressly excludes, without limitation:
10.2.1 any resale or commercial use of the Website or the CarCliq Service;
10.2.2 modifying, distributing, copying, republishing or making any derivative of the Website or the CarCliq Service; or
10.2.3 except as expressly set out in this Agreement, the collection and use of participant e-mail addresses or other User or Advertiser information or listings, or any data extraction or data mining whatsoever.
10.3 Subject to the licence granted to you under Clause 10.2, we reserve all right, title and interest in our and our Affiliates' and our licensors’ Intellectual Property Rights in the Website or any 3rd party consumer automotive leads and in the CarCliq Service. Any goodwill accruing out of the use of our and our Affiliates' and our licensors’ Intellectual Property Rights under this Agreement will vest in us and our Affiliates and our licensors, as the case may be.
10.4 You warrant that you have all necessary rights, licences and consents to provide the Information to us and to allow us to list that Information on the Website.
10.5 You shall provide to us all such assistance, and you shall do all such things, as we reasonably require to enable us to protect our and our Affiliates’ and our licensors’ Intellectual Property Rights.
11. CONFIDENTIALITY
11.1 Each Party shall keep and procure to be kept secret and confidential the Confidential Information of the other Party and shall not use nor disclose the same save:
11.1.1 for the purposes of the proper performance of its obligations or exercise of its rights under this Agreement; or
11.1.2 as otherwise permitted by this Agreement; or
11.1.3 with the prior written consent of the other Party.
11.2 Where one Party discloses Confidential Information of the other Party to its employee, consultant, subcontractor, supplier, customer, agent, professional adviser or insurer, it shall do so subject to obligations equivalent to those set out in this Clause 11. Each Party shall use its best endeavours to ensure that any such employee, consultant, subcontractor, supplier, customer, agent, professional adviser or insurer complies with such obligations.
11.3 Each Party shall at all times:
11.3.1 adopt, retain and keep updated adequate procedures and physical security measures which protect the Confidential Information of the other Party from inadvertent disclosure or release to unauthorised persons; and
11.3.2 hold the Confidential Information of the other Party in strict confidence and in any event with no less standard of confidentiality than that which it applies to its own confidential information.
11.4 The obligations of confidentiality in this Clause 11 shall not extend to any matter which either Party can show:
11.4.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
11.4.2 was in its written records prior to receipt; or
11.4.3 was independently developed by it; or
11.4.4 was independently disclosed to it by a third party entitled to disclose the same.
11.5 If either Party is required to disclose the Confidential Information of the other Party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the Party so required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable, give the other Party as much notice thereof as practicable and consult with the other Party and, at the other Party's request and cost, fully co-operate with and assist that other Party in opposing any such disclosure.
11.6 Neither Party shall make any announcement of any kind in respect of the subject matter of this Agreement except with the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed) or as is required by law.
11.7 The obligations of this Clause 11 shall continue after termination of this Agreement for whatever reason.
12. DATA PROTECTION AND CREDIT REFERENCE CHECKS
12.1 In performing this Agreement, each Party shall comply with all applicable data protection legislation.
12.2 Unless otherwise authorised or consented, you agree not to use any information regarding Users or other Advertisers on the Website, or any 3rd party consumer automotive leads that is accessible from the Website or the CarCliq Service or Partner Websites. You agree not to use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy or otherwise objectionable conduct.
12.3 Except as approved in advance in writing by us, you shall not, and shall procure that your Affiliates shall not, directly or indirectly:
12.3.1 sell, barter, disclose or transfer to any party other than your Affiliates ("Third Party"), any data acquired by you as a result of using or receiving the Website or any 3rd party consumer automotive lead or the CarCliq Service or Partner Websites, or permit any Third Party to have access to the same;
12.3.2 send to any User or other Advertiser on the Website, Partner Websites or 3rd party lead any non-electronic direct-mail marketing that promotes or advertises anyone (including you and your Affiliates); or
12.3.3 send to any User or other Advertiser on the Website, Partner Websites or 3rd party lead any electronic communication except as necessary to complete any transaction with a User after that User has contacted you as a result of viewing an Advert or any 3rd party consumer automotive lead, or to respond to a customer service enquiry made by such User concerning such transaction or as otherwise agreed in writing with the User or other Advertiser or 3rd party lead.
12.3.4
CarCliq may disclose any information that it collects to other companies within its group, to third parties whose products and/or services CarCliq think may be of interest to the Advertiser, to credit reference agencies, finance companies, fraud prevention agencies, the police, the Financial Conduct Authority and/or any other regulatory authorities. The Advertiser acknowledges and agrees that in entering the Advertising Agreement, CarCliq may carry out credit reference checks on the Advertiser and/or any individual employed or otherwise engaged by the Advertiser. CarCliq reserves the right, at its sole discretion, to refuse to provide any products or services to the Advertiser, including without limitation any Products, if in CarCliq’s sole opinion any credit reference results are unsatisfactory.
13. CANCELLATION AND TERMINATION
13.1 This Agreement shall commence on the date on which:
13.1.1 you submit your Order to the Website and that Order is accepted by us in accordance with Clause 4.6.1, if you are an Individual; or
13.1.2 both we and you sign the Order, if you are a Trader.
13.2 Unless terminated earlier in accordance with the termination provisions under this Agreement, this Agreement shall continue in full force and effect until the latest of:
13.2.1 conclusion of the provision of access to the CarCliq Service in accordance with this Agreement; or
13.2.2 conclusion of payment of all sums due under this Agreement.
13.3 If you are a Trader, you may terminate this Agreement by providing to us not less than 28 days’ notice of your intention to terminate, where such notice shall not expire prior to the end of the minimum term of 13 weeks specified in Clauses 9.3.3 and 9.3.4, or such other minimum term as is set out in the Order or that we may specify from time to time. Such notice should be provided by you to us by email to [email protected] and should quote such account number as we may allocate to you from time to time.
13.4 If you are an Individual, you may cancel this Agreement in accordance with Clause 4.8.3.
13.5 We may terminate this Agreement by providing to you not less than seven days’ notice.
13.6 Either Party may terminate this Agreement immediately by notice to the other Party if:
13.6.1 the other Party is in material breach of any of its obligations under this Agreement or any other agreement between the Parties which is incapable of remedy; or
13.6.2 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement or any other agreement between the Parties after having been required in writing to remedy such breach within a period of no less than 10 Business Days; or
13.6.3 the other Party is in persistent breach of any of its obligations under this Agreement or any other agreement between the Parties; or
13.6.4 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage its affairs, business and property or a receiver and/or manager or administrative receiver is appointed in respect of all or any of its assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or it takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
13.7 Termination or expiry of this Agreement shall be without prejudice to any accrued rights or remedies of either Party.
13.8 Termination or expiry of this Agreement shall not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
13.9 Upon termination or expiry of this Agreement for any reason:
13.9.1 we shall cease to perform this Agreement;
13.9.2 all outstanding Fees shall become immediately payable by you to us, whether invoiced or not; and
13.9.3 the owner of Confidential Information may at its option require the other Party to delete promptly all Confidential Information belonging to the Party requiring the action from any computer disks, tapes or other material in its possession or under its control or promptly deliver up or destroy materials and tangible items in its possession or under its control which contain any such Confidential Information. The relevant Party may require the other Party to provide a written declaration, signed by an officer or other authorised individual, stating that there has been full compliance with this Clause 13.9.
13.10 Upon termination of this Agreement:
13.10.1 by you in the event of a breach of this Agreement by us; or
13.10.2 in an Event of Force Majeure;
we shall refund to you any Fees paid by you to us prior to such termination but that relate to a period of access to or use of the CarCliq Service following such termination on a pro rata basis (if the Fees are on a Subscription basis then per full Business Day remaining out of the total period paid for in advance by you; for the period of access not used by you from the date of termination until the date on which your prepaid period would have ended but for termination.
14. LIABILITY
14.1 If you are a consumer, nothing in this Agreement (including in this Clause 14) affects or limits your statutory rights (including without limitation the right to insist that services shall be provided using reasonable care and skill).
14.2 This Clause 14 prevails over all of this Agreement and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
14.2.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or of any services in connection with this Agreement; or
14.2.2 otherwise in relation to this Agreement.
14.3 We do not exclude or limit our Liability for:
14.3.1 our fraud; or
14.3.2 death or personal injury caused by our Breach of Duty; or
14.3.3 any breach of the obligations implied by Section 2 Supply of Goods and Services Act 1982; or
14.3.4 any other Liability which cannot be excluded or limited by applicable law.
14.4 Subject to Clauses 14.1 and 14.2, we do not accept and hereby exclude any Liability for Breach of Duty other than any Liability arising pursuant to this Agreement.
14.5 Subject to Clauses 14.1 and 14.2, we shall not have Liability in respect of any (i) indirect or consequential losses, damages, costs or expenses; (ii) loss of actual or anticipated profits; (iii) loss of contracts; (iv) loss of use of money; (v) loss of anticipated savings; (vi) loss of revenue; (vii) loss of goodwill; (viii) loss of reputation; (ix) loss of business; (x) ex gratia payments; (xi) loss of operation time; (xii) loss of opportunity; or (xiii) loss of, damage to or corruption of, data (except to the extent that we specifically have a responsibility to prevent loss of, damage to or corruption of, data under this Agreement); whether or not such losses were reasonably foreseeable or we had been advised of the possibility of you incurring such losses. For the avoidance of doubt, (ii) to (xiii) above of this Clause 14.5 apply whether such losses are direct, indirect, consequential or otherwise.
14.6 Subject to Clauses 14.1 and 14.2, our total aggregate Liability shall be limited to 110% of the Fees payable by you to us, under the Order to which your claim relates, in the month prior to the occurrence of the event which is the subject of your claim.
14.7 The limitation of Liability under Clause 14.6 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any provision of this Agreement.
14.8 In this Agreement:
14.8.1 "Breach of Duty" means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
14.8.2 "Liability" means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including, without limitation, liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any provision of this Agreement (and for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract).
15. INDEMNITY
15.1 You shall indemnify us, and keep us fully indemnified, against any and all direct, indirect or consequential losses, liabilities, demands, claims, proceedings, damages, costs, charges, and expenses suffered by, incurred by, paid by or awarded against, us in respect of:
15.1.1 any defective vehicles that are the subject of Adverts or defective workmanship, quality or materials; or
15.1.2 any infringement or alleged infringement of any Intellectual Property Rights in any way relating to the Information or any information or content that is linked to or from an Advert; or
15.1.3 any Liability incurred by us as a result of us listing on the Website any information or content submitted by you to us; or
15.1.4 any Liability incurred by us in relation to an Advert; or
15.1.5 any direct or indirect breach or negligent performance or failure or delay in performance of this Agreement by you or your staff or representatives.
16. FORCE MAJEURE
16.1 Neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by circumstances beyond that Party’s reasonable control including any act of God, actions or omissions of third parties not in the same group as that Party (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, seizure or forfeiture, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, unusual traffic volumes, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions (including cold, heat, wind, rain, snow, ice or fog), loss at sea, earthquake, volcano, natural disaster, accident, collapse of building structures, failure of machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), and shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.
16.2 Either you or we may terminate this Agreement immediately by notice to the other in the event that the Event of Force Majeure lasts for a period of five Business Days or more, in which event neither you nor we shall have any Liability to the other by reason of such termination.
17. NOTICES
17.1 Any notice under this Agreement shall be in writing and shall be served by personal delivery or by pre-paid or recorded delivery letter or by facsimile addressed to the relevant Party at the address or facsimile number of the relevant Party last known to the other.
17.2 Any notice given by post shall be deemed to have been served two Business Days after the same has been posted and any notice given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, posted as a prepaid or recorded delivery letter or despatched or an answerback signal received.
18. GENERAL
18.1 You shall not (and shall not purport to) assign, sub-license, sub-contract, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any of your rights, liabilities or obligations under this Agreement without our prior written consent (such consent not to be unreasonably withheld or delayed). If with such consent you subcontract any of your obligations to a subcontractor, you shall be and remain fully liable for the performance of any subcontractor appointed by you.
18.2 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party's other powers, rights or remedies under this Agreement or at law.
18.3 If any Clause or other provision in this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect, so long as this Agreement shall be capable of continuing in effect without the unenforceable term.
18.4 Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between you and us.
18.5 A person who is not a Party to this Agreement has no rights under any law to enforce any term of this Agreement.
18.6 This Agreement (and all non-contractual relationships arising out of or connected to it) shall be governed by and construed in accordance with English law. You submit to the exclusive jurisdiction of the English courts to settle any dispute or claim which may arise under, or in respect of, this Agreement, except where you are a consumer, and, by law, such dispute or claim must be brought in the jurisdiction in which you are domiciled, or where the relevant law contains mandatory provisions that override such exclusive jurisdiction.
Version 0011: September 2020