Dealer Advertising Terms and Conditions
These terms and conditions will apply to any contract between Carfinance247 Limited (the “Company”) and you (the “Dealer”) in respect of the provision of the Services (as defined below). Please read this document carefully and make sure that you understand the terms before contracting for the use of the Services.
The Company may modify these terms and conditions from time to time and you should therefore check the Website regularly to review these terms and conditions.1. Interpretation
1.1 In these Conditions, the following definitions apply:
- “Agreement” the agreement for the provision of Services compromising these Conditions and the Order Form;
- “Applicable Laws” all UK and EU statutory and regulatory requirements;
- “Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
- “Carcraft Site” the website at www.carcraft.co.uk, any related website and any other website owned or operated by EGFV Rix Limited;
- “Car Search Portal” the web application which provides the Dealer with the ability to display and advertise Stock on the Company’s Website;
- “Conditions” these terms and conditions as amended from time to time in accordance with clause 14.7.1;
- “Customer” a person who has applied for vehicle finance via the Website unless that person has been introduced to the Company in writing by the Dealer via the Dealer’s log in area on the Website;
- “Data” text, content, graphics, images, video, software, data and other materials in whatever format in respect of an individual motor vehicle;
- “Dealer Branding” all trading names, trade marks, service marks, logos and devices of the Dealer to be used in connection with a Listing;
- “Dealer Materials” all Data including Dealer Branding provided by the Dealer to the Company for use in connection with the Services;
- “Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
- “Introduction Services” the introduction by the Company to the Dealer (by way of the Company’s provision of the Website and the Car Search Portal) of prospective buyers of Stock;
- “Order Form” the order form produced by the Company and on which the Dealer places a request to the Company to provide the Services;
- “Listing” any listing, advertisement or promotion on the Website and Car Search Portal referring to the Dealer or the Dealer’s Stock;
- “Services” all services (including Introduction Services) offered by the Company on or in connection with the Website, the Car Search Portal and any related software to advertise the Dealer’s Stock;
- “Stock” all motor vehicles for sale by the Dealer which are listed on the Car Search Portal from time to time;
- “Stock Feed” a collection of Stock and related dealer location information, uploaded directly from the Dealer’s website (or elsewhere) or transmitted by the Dealer to the Company by an electronic data feed;
- “Website” the website at www.carfinance247.co.uk, any related website and any other website owned or operated by the Company or anyone connected with the Company.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors, permitted assigns and any third party permitted to act on behalf of the party;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to a person being “connected” shall be construed in accordance with section 1122 of the Corporation Tax Act 2010.2. Basis of contract
2.1 The production of an Order Form by the Company to the Dealer, personalised with the details of the Dealer, constitutes an offer by the Company to sell the Services to the Dealer in accordance with these Conditions.
2.2 The Order Form shall only be deemed to be accepted when the Company receives a signed and duly completed Order Form (which may, if permitted by the Company, be executed and submitted electronically) by the Dealer at which point and on which date the Agreement shall come into existence.
2.3 The Agreement constitutes the entire agreement between the parties. The Dealer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Agreement.
2.4 These Conditions apply to the Agreement to the exclusion of any other terms that the Dealer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.3. Supply of Services
3.1 The Company shall provide the Services with reasonable care and skill and subject to the terms of this Agreement.
3.2 The Company shall have the right to make any changes to the Services which are necessary to comply with any Applicable Law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Dealer in any such event.
3.3 The Company shall have the right to carry out checks to verify the identity of the Dealer, the nature of the Dealer’s business and the accuracy of the Data.4. Dealer’s obligations
4.1 The Dealer shall:
4.1.1 ensure that the terms of the Order Form are complete, accurate and not misleading;
4.1.2 co-operate with the Company in all matters relating to the Services;
4.1.3 provide the Company with such Dealer Materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
4.1.4 provide the Dealer Materials in the format specified by the Company;
4.1.5 ensure that information regarding Stock (including but not limited to price, mileage and technical specification) comprised in the Stock Feed:
- is consistent within the relevant Listing and any Website;
- is accurate;
- does not relate to a vehicle which is a non-declared write-off;
- does not relate to a vehicle which is owned or offered for sale by a private owner; and
- does not involve a single vehicle appearing in more than one Listing;
4.1.6 ensure that no Data nor any computer file uploaded to a Website and/or the Carcraft Site contains any virus or corrupted Data;
4.1.7 not make any attempt to modify the Website and/or the Carcraft Site, to access any unauthorised section of the Website and/or the Carcraft Site, nor to use the Car Search Portal otherwise than as set out in the Agreement or as directed by or agreed with the Company;
4.1.8 not deliberately or knowingly include in any Stock Feed or Listing any of the Dealer’s contact details (including but not limited to telephone numbers, email addresses, web links or addresses);
4.1.9 not deliberately or knowingly include in any Stock Feed or Listing a finance price (whether estimated or otherwise);
4.1.10 inform the Company immediately if there are any changes to the information provided by the Dealer to the Company;
4.1.11 obtain and maintain all necessary licences, permissions and consents which may be required for the Services (other than any which may only be obtained by the Company) before the date on which the Services are to start;
4.1.12 use the Car Search Portal solely in respect of the Dealer’s own business and not make any attempts to access, amend or upload information in respect of any other business;
4.1.13 comply with all applicable laws, statutes and regulations relating to anti-bribery and anti corruption including but not limited to the Bribery Act 2010 and not engage in any activity, practice or conduct which would constitute an offence under section 1,2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
4.1.14 not misrepresent the Company’s involvement; and
4.1.15 be responsible for the content of its Listing and warrant that the Listing:
- is accurate, remains up to date and is not misleading;
- complies with all Applicable Laws
- does not infringe any third party Intellectual Property Rights or other rights; and
- is not defamatory, offensive, vulgar, racist, abusive, invasive of another’s privacy or otherwise inappropriate.
4.2 The Company has the right to amend or remove at any time and without notice any Listing which fails to comply with this clause 4. The Company accepts no responsibility for checking such content for conformity with this clause 4 which shall remain the responsibility of the Dealer.5. Your account and password
5.1 In the event that the Company provides the Dealer with a login name and password (to enable the Dealer to access the dealer login area), the Dealer shall treat such information as confidential and shall not disclose it to any third party.
5.2 The Company has the right to disable any user identification code or password, whether chosen by the Dealer or allocated by the Company, at any time, if in the Company’s reasonable opinion the Dealer has failed to comply with any of the provisions of these Conditions or it the Company reasonably suspects that a fraud is being perpetrated against the Company or any third party.6. Charges and payment
6.1 The charges for Services, including charges for Introduction Services (“Introduction Services Fees”) shall be as set out in the Order Form or as agreed from time to time. The charges for Introduction Services shall be calculated on the basis of Stock sold to Customers in the month and shall be payable only in respect of Stock sold in that month.
6.2 The Company reserves the right to increase its Introduction Services Fee rates (and other fee rates, if any) from time to time. The Company will give the Dealer written notice of any such increase not less than 20 Business Days before the proposed date of the increase. In such event the Dealer may notify the Company in writing within 20 Business Days of the date of the Company’s notice and the Dealer shall have the right without limiting its other rights or remedies to terminate the Agreement by giving not less than 10 Business Days’ written notice to the Dealer.
6.3 The Company shall invoice the Dealer monthly in arrears in respect of the Services. Invoices shall be submitted to the Dealer within 5 Business Days of the end of the month in question.
6.4 The Dealer shall pay each invoice submitted by the Company:
6.4.1 by direct debit, within 14 days of the date of the invoice; and
6.4.2 in full and in cleared funds to a bank account nominated in writing by the Company.
6.5 In the event that the Dealer fails to make any payment under the Agreement by the Due Date, all monies owed by the Dealer to the Company (whether under this Agreement or otherwise) shall immediately become due and payable.
6.6 Any dispute in respect of an invoice raised under the Agreement shall be notified by the Dealer to the Company within 5 Business Days of the date of the relevant invoice.
6.7 All amounts payable by the Dealer under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Agreement by the Company to the Dealer, the Dealer shall, on receipt of a valid VAT invoice from the Company, pay to the Company (by direct debit) such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
6.8 If the Dealer fails to make any payment due to the Company under the Agreement by the due date for payment, then the Dealer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Dealer shall pay the interest together with the overdue amount.
6.9 The Dealer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding except as required by law. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Dealer against any amount payable by the Company to the Dealer.7. Intellectual property rights
7.1 The Dealer acknowledges that (save in relation to Dealer Materials) all Intellectual Property Rights in the Website, the Car Search Portal and in any data (including customer personal data) collected by the Company in connection with this Agreement are owned by the Company absolutely.
7.1.1 all Intellectual Property Rights in the Website, the Car Search Portal and in any data (including customer personal data) collected by the Company in connection with this Agreement are owned by the Company absolutely; and
7.1.2 all Intellectual Property Rights in the Carcraft Site are owned by the EGFV Rix Limited absolutely.
7.2 The Company acknowledges that all Intellectual Property Rights in the Dealer Materials are owned by the Dealer (“Dealer IPR”).
7.3 The Dealer agrees that for the duration of the Agreement, the Company and its authorised representatives shall be entitled to obtain or upload any Data from the Dealer’s website (or elsewhere) as reasonably necessary for the purpose of displaying the same on the Car Search Portal and providing the Services.
7.4 The Dealer grants the Company a royalty-free licence for the duration of this Agreement to use, copy, alter, display, sublicense, and create extracts of, or derivative works from, the Dealer IPR in any media formats including for the purpose of redistribution of the Service or for the Company’s own marketing purposes. The Dealer waives all moral rights in relation to such material to the extent legally permitted.
7.5 The Dealer shall, if requested by the Company, give all necessary assistance to the Company and do all acts as may reasonably be required by the Company to enable the Company to protect and enforce its Intellectual Property Rights and those of its licensees against any third party.
7.6 The Company does not warrant that the Website or the Car Search Portal are or will be free from computer viruses or malicious or impairing computer programs.8. Third Party Website
8.1 The Dealer acknowledges that the Website may contain links to third party websites which are not under the control of the Company. The Company accepts no responsibility for the availability or content of any linked websites or for any loss or damage that may arise from the Dealer’s use of them.
8.2 The Dealer acknowledges and agrees that the information provided to the Company may be utilised by the Company and disclosed to third parties.9. Suspension of the site
9.1 From time to time, the Company and/or EGFV Rix Limited will need to carry out maintenance work on its equipment and systems and shall use its reasonable endeavours to ensure that, in doing so, reasonable notice is given and minimum disruption to the Website, the Carcraft Site and the Car Search Portal is caused. However, the Dealer acknowledges that the Company and/or EGFV Rix Limited cannot guarantee that the Website, the Carcraft Site and the Car Search Portal will be continuously available online. For the avoidance of doubt, the Company and/or EGFV Rix Limited shall not incur any liability if the Dealer cannot access the Website and/or the Carcraft Site or because of the failure, suspension or withdrawal or all or part of the Website and/or the Carcraft Site.
9.2 The Company and/or EGFV Rix Limited has the right at its discretion to decline to publish (in whole or in part), or to omit, suspend, change the position, size, quality or colouring of or reclassify any Listing or information supplied by the Dealer. The Company and/or EGFV Rix Limited may at any time update or withdraw the Car Search Portal or vary the Website and/ r the Carcraft Site or any part thereof by notice to the Dealer or by publishing new details.10. Confidentiality
10.1 A party ("receiving party") shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party ("disclosing party"), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Agreement. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
10.2 Without prejudice to the generality of the above, the Dealer shall keep safe and confidential, and shall not disclose to any third party any password, security identification or encryption details supplied to it in connection with the Services, the Website or the Car Search Portal, and will promptly notify the Company in the event that it believes that any password or security information has been disclosed or is at risk.
10.3 This clause 10 shall survive termination of the Agreement.11. Limitation of liability: THE DEALER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
11.1.2 fraud or fraudulent misrepresentation; or
11.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
11.2 Subject to clause 11.1:
11.2.1 the Company shall under no circumstances whatever be liable to the Dealer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement;
11.2.2 the Company shall not be liable or responsible for the non-receipt, inaccuracy or corruption of any Data, nor for failures, delays or defects of the network or the internet;
11.2.3 the Company’s total liability to the Dealer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £500,000.
11.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
11.4 Subject to clause 11.1, no claim against the Company by the Dealer shall be enforceable unless it has been notified to the Company by the Dealer within 12 months after the later of:
11.4.1 the date of the breach; and
11.4.2 the date on which the Dealer became aware of the breach.
11.5 This clause 11 shall survive termination of the Agreement.12. Indemnity
The Dealer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with Dealer’s use of the Service or to the Dealer’s breach of the Agreement (except to the extent that the Company is at fault).13. Termination
13.1 Without limiting its other rights or remedies either party may terminate the Agreement by giving the other party not less than 20 Business Days written notice.
13.2 Without limiting the Company’s other rights or remedies, the Company may terminate the Agreement with immediate effect by giving written notice to the other party if:
13.2.1 the Dealer fails to pay any amount due under this Agreement on the due date for payment;
13.2.2 the Dealer commits a material breach of its obligations under this Agreement and (if such breach is remediable) fails to remedy that breach within 10 Business Days after receipt of notice in writing to do so;
13.2.3 the Dealer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
13.2.4 the Dealer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
13.2.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Dealer (being a company);
13.2.6 the Dealer (being an individual) is the subject of a bankruptcy petition or order;
13.2.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Dealer (being a company);
13.2.8 the holder of a qualifying charge over the assets of the Dealer (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.2.9 a person becomes entitled to appoint a receiver over the assets of the Dealer or a receiver is appointed over the assets of the Dealer;
13.2.10 any event occurs, or proceeding is taken, with respect to the Dealer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2.3 to clause 13.2.8 (inclusive);
13.2.11 the Dealer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
13.2.12 the Dealer’s financial position deteriorates to such an extent that in the Company’s opinion the Dealer’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy;
13.2.13 the Dealer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
13.2.14 the Stock Feed has been amended by the Dealer in such a way that it is not technically possible to continue to display the Stock without making changes to the company’s stock feed importing systems.
13.3 On termination of the Agreement for any reason:
13.3.1 the Dealer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Dealer immediately on receipt;
13.3.2 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
13.3.3 any clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13.4 Without prejudice to any other remedy available to the Company under the Agreement or at law, the Company shall be entitled:
13.4.1 to suspend the Services for a period not exceeding 20 Business Days by notice to the Dealer in the event that it reasonably believes the Dealer to be in breach of any provision of this Agreement; and
13.4.2 to remove any Listing which it reasonably believes to constitute a breach of any provision of this Agreement.14. General
14.1 Assignment and other dealings.
14.1.1 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party.
14.1.2 The Dealer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Agreement.
14.2.1 Subject to clause 14.7.1, any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or fax.
14.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2.1 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax one Business Day after transmission.
14.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
14.3.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
14.3.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
A waiver of any right under this Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
14.6 Third parties
A person who is not a party to this Agreement shall not have any rights to enforce its terms.
14.7.1 The Company has the right to amend these Conditions from time to time in accordance with clause 14.2, by email (to any email address supplied by the Dealer on the Order Form or for this purpose) or by posting the amending Conditions on the Website. Except where any amendments to these Conditions are required by law, all amended Conditions will be effective on the earlier of receipt by the Dealer of an email from the Company attaching the updated terms and conditions or 20 Business Days after they are initially posted on the Website.
14.7.2 Except as set out in clause 14.7.1, no variation of the Agreement, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Company.
14.8 Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).