These standard terms and conditions (“Conditions”) constitute a legally binding agreement between Dealer Auction and the User and govern the provision and use of products and features supplied by Dealer Auction to the User which enable access to Dealer Auction’s trade-to-trade used car marketplace and allows the User to buy vehicles from multiple sources and sell vehicles to other trade dealers.
Dealer Auction may modify these Conditions from time to time and you should therefore ensure that you review these Conditions regularly.
Your attention is drawn in particular to clause 11 (Liability and Indemnity). Note, Dealer Auction does not create or monitor Adverts and accordingly Dealer Auction provides no warranty as to the accuracy of vehicle descriptions and/or condition. Before buying a vehicle, you are expected to have considered additional repairs and maintenance which may be required prior to use and/or resale.
DEFINITIONS AND INTERPRETATION
- In these Conditions, unless the context otherwise requires, the following terms have the following meanings:
“Advert” means any copy, artwork, text, data, photographs, slides and/or video clips advertising a vehicle that is to be published on the Platform, including the content of a Condition Report;
“Auction Vehicle” means a vehicle listed for sale using the auction functionality on the Platform;
“Auto Trader” means Auto Trader Limited (company no. 03909628) whose registered office is 1 Tony Wilson Place, Manchester M15 4FN;
“Bidder” means a User who bids for an Auction Vehicle using the auction functionality on the Platform;
“Business Day” means a day (excluding Saturdays and Sundays) on which banks are generally open in England for the transaction of normal business;
“Buyer” means (i) in the context of auction functionality, a Bidder who submits the winning bid on an auction through the Platform, and (ii) in the context of a Buy it now Vehicle, a User who submits a binding Offer for the advertised price displayed on a Buy it now Vehicle listing on the Platform;
“Buy it now Purchase” means a binding Offer for the advertised price displayed on a Buy it now Vehicle listing on the Platform which is accepted by the Seller simultaneously;
“Buy it now Vehicle” means a vehicle listed for sale on the Platform which is immediately available for purchase by a User at the price listed and which is labelled or visually identifiable as ‘Buy it now’;
“Charges” means the charges to be paid by the User for the Services which will consist of the Subscription Fee and any additional transaction fees for sales/purchases transacted through the Platform in the relation to the sale and purchase of Auction Vehicles and Buy it now Vehicles as set out on the Order Confirmation and/or Order Variation;
“Conditions” means the Terms & Conditions for the supply and use of the Services, as set out in this document;
“Condition Report” means a report provided by a Seller to other Users via the Platform for an Auction Vehicle or a Buy it now Vehicle, based on a template provided by Dealer Auction or otherwise provided in a format uploaded by the Seller, which sets out an accurate reflection of the condition of such Auction Vehicle or Buy it now Vehicle, including exterior and interior damage and tyre depth;
“Cox Automotive” means Cox Automotive UK Limited (company no. 03183918) whose registered office is at Central House, Leeds Road, Rothwell, Leeds LS26 0JE;
“Data” means information regarding the User and the Vehicle Information;
“Dealer Auction” means the legal entity within the Dealer Auction Group which enters into the Usage Agreement with the User for the Services, which shall be one of (i) Auto Trader Autostock Limited (company no. 11499895) whose registered office is at Central House, Leeds Road, Rothwell, Leeds LS26 0JE (ii) Dealer Auction Limited (company no. 06676554) whose registered office is at Central House, Leeds Road, Rothwell, Leeds LS26 0JE, or (iii) Dealer Auction Services Limited (company no. 11487869) whose registered office is at Central House, Leeds Road, Rothwell, Leeds LS26 0JE, as applicable;;
“Dealer Auction Data” means the data provided by Dealer Auction to the User via the Platform, including the Supplemental Data;
“Dealer Auction Group” means Dealer Auction Limited (company no. 11514206) whose registered office is at Central House, Leeds Road, Rothwell, Leeds, LS26 0JE, its parent undertakings, its subsidiary undertakings and the subsidiary undertakings of any of its parent undertakings from time to time, including Dealer Auction;
“Intellectual Property Rights” means all intellectual property rights wherever in the world arising whether registered or unregistered (including any application for registration), including without limitation, all copyright, trademarks, trade names, logos, patents, design rights, database rights and/or know how;
“Materials” means any copy, artwork, data, photographs, slides, video clips, information and/or other material provided or selected by the User for inclusion in an Advert or otherwise uploaded to the Platform;
“Offer” means an offer of money to another User for the purchase of a Buy it now Vehicle or Auction Vehicle via the Platform which signifies the intention to pay the sum of money offered for the Buy it now Vehicle or Auction Vehicle;
“Order Confirmation” means the order communication sent by Dealer Auction to the User confirming details of the User’s order;
“Order Variation” means the form detailing changes requested by the User to the Services, including additional products;
“Platform” means the platform owned and operated by Dealer Auction accessed via the website at dealerauction.co.uk or such other domain name used by Dealer Auction from time to time;
“Proxy Bidding” means bidding functionality on the Platform which allows bids for Auction Vehicles to be made on the Bidder’s behalf (with notification of a maximum bid by the Bidder);
“Seller” means (i) in the context of auction functionality, a User who lists for sale Auction Vehicle(s) using the auction functionality on the Platform, and (ii) in the context of a Buy it now Vehicle, a User who lists for sale a Buy it now Vehicle on the Platform vehicle(s);
“Services” means the products and services provided by Dealer Auction to the User pursuant to the Usage Agreement (and subject to and in accordance with these Conditions) which constitutes a trade-to-trade used car marketplace and allows the User to buy vehicles from multiple sources and sell vehicles to other Users (and includes auction functionality and the ability to list for sale vehicles which are immediately available for purchase by a User at the price listed), and further recommends and profiles vehicles that meet the User’s sourcing strategy taking into account data derived market insight.
“Subscription Fee” means the sum payable every month by the User to Dealer Auction for access to the Platform as set out in the Order Confirmation and/or Order Variation;
“Supplemental Information” means information used by Dealer Auction to supplement and enhance the Vehicle Information, including verification, enhancement or amendment of the Vehicle Information;
“Usage Agreement” means the agreement between Dealer Auction and the User for the purchase and supply of the Services, incorporating the Order Confirmation and/or Order Variation and these Conditions;
“User” means the person, firm or company who enters the Usage Agreement with Dealer Auction and has subsequently been issued with username(s) and password(s) for accessing the Platform; and
“Vehicle Information” means any data regarding the User’s vehicles including but not limited to vehicle registration details, images, prices and sales information which is uploaded to the Platform or otherwise communicated or made available to Dealer Auction.
- In these Conditions, references to the singular include plural and vice versa; references to numbered clauses are references to the relevant clause in these Conditions; the headings to the clauses will not affect interpretation; 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 a reference to writing includes emails and electronic communications via the Platform.
In the case of any conflict or ambiguity between any provision contained in these Conditions and any provision contained in an Order Confirmation
and/or Order Variation, the following order of precedence shall apply in ascending order with Conditions taking precedence at the top:
- Order Variation; and
- Order Confirmation.
- In these Conditions, unless the context otherwise requires, the following terms have the following meanings:
- Each order for subscription to the Services shall be deemed to be an offer by the User to subscribe to the Services subject to these Conditions.
- Orders placed by the User shall only be deemed accepted by Dealer Auction when Dealer Auction sends an Order Confirmation or Order Variation (as applicable) to the User. The User shall ensure that the terms of its order are complete and accurate. If changes are required, the User should inform Dealer Auction as detailed on the Order Confirmation or Order Variation.
- Dealer Auction shall be entitled to modify these Conditions from time to time and any modifications shall be effective immediately from the time they are notified to the User. Display of the modified Conditions on the Platform shall be deemed to be notice to the User. The User agrees to review the Conditions regularly to ensure they are aware of any modifications.
- These Conditions govern the Usage Agreement to the exclusion of any other terms and conditions (including any terms the User seeks to impose) unless expressly stated otherwise in writing by Dealer Auction.
- The User will subscribe to the Services as detailed in an Order Confirmation.
- In consideration of payment of the Charges by the User in accordance with clause 6, Dealer Auction will provide the Services to the User commencing on the date set out in the Order Confirmation (or, if no such date is set out, the date that access to the Platform is initiated for the User).
- If after entering the Usage Agreement, the User requests a change to the Services and Dealer Auction agrees, Dealer Auction shall confirm details of the requested change via an Order Variation. Except as expressly amended by any Order Variation the original Usage Agreement shall remain in full force and effect.
- Dealer Auction shall provide additional technical specification details for Adverts which shall solely consist of details that Dealer Auction can obtain from its current supplier’s dataset. The User acknowledges that the technical specification will be for the most recent model of the vehicle in question and will not be the technical specification for the exact vehicle in question. Such details will only be provided by Dealer Auction upon provision by the User of a valid registration number for the vehicle in question. The provision of a valid registration number is the User’s sole responsibility. It is the User’s responsibility to ensure any inaccuracies in the technical specification are corrected in the Advert and at the point of sale of the vehicle.
- Dealer Auction shall use reasonable endeavours to publish Adverts on the Platform within 1 Business Day of such Adverts being uploaded by the User. However, there may be instances where there are delays to the publication of Adverts on the Platform.
- Upon listing a vehicle for sale on the Platform, the Seller undertakes that it is the owner of the vehicle or has valid documented authority from the owner to sell the vehicle in accordance with section 12 of the Sale of Goods Act 1979.
- In respect of the display of classified Adverts, the Platform acts only as a means by which Users (sellers and potential buyers) can be introduced, and any arrangements made for the purchase and sale of vehicles between Users are at each User’s sole risk and responsibility.
- The User’s vehicles listed on the Platform should reflect trade pricing. Dealer Auction will prompt Users to re-evaluate the price outlined in an Advert when it is greater than 10% of the average trade price displayed at the time of creating the Advert.
- Dealer Auction reserves the right to remove Adverts or prohibit any Users who consistently price their vehicles significantly above the trade price.
- Classified Adverts placed by way of data feed will automatically expire after 15 days if no changes or amendments are made to the Advert.
- Once a Bidder has made an Offer for an Auction Vehicle on the Platform it cannot be withdrawn and is binding on the Bidder for the purposes of these Conditions. Upon making an Offer for an Auction Vehicle, the Bidder is agreeing to purchase the Auction Vehicle for the price offered in the event that it is the highest Bidder. Once a bid has been accepted by a Seller the Bidder is bound to the Seller to complete the transaction and pay the purchase price offered.
- To win an auction for a particular Auction Vehicle, the Offer submitted must be the highest bid of the auction and must meet any other criteria which may be specific to the auction. Where Proxy Bidding is utilised and the Bidder’s maximum bid amount exceeds the reserve price for the Auction Vehicle, Proxy Bidding will submit an amount equal to the reserve price as an Offer on behalf of the Bidder, whereupon a “reserve met” status will become visible on the listing. Proxy Bidding will then continue submitting Offers on the Auction Vehicle, as subsequent Offers are placed by other Bidders, up to the Bidder’s maximum bid amount.
- Upon listing an Auction Vehicle for auction on the Platform, the Seller agrees to sell the Auction Vehicle to the Buyer should it reach or go beyond its reserve price.
- Risk and title in the Vehicle remains with a Seller until it has received the purchase price. On payment completion, the Buyer will be responsible for contacting the Seller to arrange a date and time for collection of the Auction Vehicle and the Seller will promptly confirm such collection date and time. Sellers and Buyers agree to complete the transaction for an Auction Vehicle within 72 hours of the relevant auction closing.
- A Seller can elect to list a vehicle as a Buy it now Vehicle. The amount listed as part of the Buy it now Vehicle Advert is the amount for which the Buy it now Vehicle is immediately available for purchase by a User.
- A Buyer can initiate a Buy it now Purchase by submitting an Offer for a Buy it now Vehicle on the Platform. Once a Buyer has made an Offer for a Buy it now Vehicle the Offer cannot be withdrawn, and the Buyer is bound to the Seller to complete the purchase of the Buy it now Vehicle for the purposes of these Conditions.
- Upon listing a Buy it now Vehicle on the Platform, the Seller agrees to sell a Buy it now Vehicle to the Buyer should an Offer be made for the advertised price.
- Risk and title in the Vehicle remains with a Seller until it has received the purchase price. On payment completion, the Buyer will be responsible for contacting the Seller to arrange a date and time for collection of the Buy it now Vehicle and the Seller will promptly confirm such collection date and time. Sellers and Buyers agree to complete the transaction for a Buy it now Vehicle within 72 hours of the relevant Offer being submitted by a Buyer.
- Sellers are required to provide Condition Reports for all Auction Vehicles and Buy it Now Vehicles. Auction Vehicles and Buy it now Vehicles cannot be listed on the Platform without a Condition Report. Condition Reports are not mandatory for any other vehicles listed on the Platform.
- The Seller is solely liable for the content of any Condition Report and Dealer Auction is unable to check the information contained in any such Condition Report. Condition Reports shall be deemed Materials for the purposes of these Conditions and the Seller is therefore solely responsible for, without limitation, ensuring that the Condition Report is complete, accurate, legal, non-defamatory, decent, honest and truthful and comply with all relevant codes under the regulation of the Advertising Standards Authority and all current relevant legislation. Accordingly, Dealer Auction shall not be liable to any User or any third party, to the maximum extent permitted by law, in respect of the content of any Condition Report.
- Users acknowledge that all vehicles offered for sale on the Platform are previously owned and used vehicles. All conditions and warranties implied by law, trade, custom or practice are excluded to the fullest extent permitted by law.
- The Platform is merely a platform to facilitate the buying and selling of vehicles by introducing Users to each other. Dealer Auction will not, and is not obliged to assist, in any disputes between any Users (including any disputes between the Seller and any Bidder or Buyer in the context of Auction Vehicles and Buy it now Vehicles). Nevertheless, Dealer Auction reserves the right to refuse or remove Offers and/or suspend, cancel or extend auctions at its absolute discretion, including where there are or have been obvious typographical or arithmetical errors.
- Without prejudice to clause 3.22 above, Users may submit complaints about other Users’ Use of the Platform. Dealer Auction will investigate all such complaints and take such action as it deems necessary, including any rights it has under clause 10.
- Dealer Auction grants to the User a personal, non-exclusive, non-transferable licence, for the period of the Usage Agreement, to use the Dealer Auction Data solely for its own internal business purposes within the motor industry.
- The User warrants that it will not alter, adapt, merge, copy or modify the Dealer Auction Data in any way for any purpose, including without limitation, for error correction.
- The User is prohibited from reselling or otherwise making available to any third party any Dealer Auction Data.
- The User acknowledges and agrees that the Dealer Auction Data is comprised of data provided by third parties and that in providing this information, Dealer Auction does not warrant the accuracy of any information provided, and any information provided shall be for guidance purposes only. Any business decisions taken in reliance of such information shall be at the User’s sole risk.
- Feedback must only be provided by Users as an accurate and truthful reflection of their experiences whilst conducting business with other Users on the Platform.
- Users must not take any actions that may undermine the integrity of the feedback system. All feedback content on the Platform is the sole responsibility of the Users who originate such content. Dealer Auction may not monitor or control any feedback content posted via the Platform and it cannot take responsibility for such content.
- The User agrees to only contact other Users regarding the sale and purchase of vehicles advertised on the Platform and not to use contact details of any third party for any other purpose.
- The User agrees not to disclose any contact details or Advert details of any User to any third party who is not a User.
Classified Advertising Functionality
Buy it now
Disputes and Complaints
Dealer Auction Data
Use of Information relating to others
COPY, ARTWORK AND PHOTOGRAPHS
- Dealer Auction may refuse to publish an Advert and/or edit or require an Advert to be amended so as to comply with legal or moral obligations placed on either party; to avoid infringing third party rights, any codes under the regulation of the Advertising Standards Authority and/or any relevant regulations or legislation; to respond to any complaints; to correct typographical errors or technical inaccuracies that may appear from time to time; and/or for any other technical and/or quality reasons.
- Dealer Auction has the right, at its sole discretion, to remove from the Platform, at any time and for any reason, any Adverts which Dealer Auction reasonably believes contain misleading information.
- The User shall be solely responsible for uploading any images (including photographs and video) and for checking the accuracy of any Advert for errors and amending copy. Dealer Auction reserves the right in its sole discretion not to include a photograph or video in an Advert.
- Dealer Auction may receive Materials via such means as specified by Dealer Auction from time to time. However, the User shall submit Materials at its own risk and Dealer Auction shall not be liable or responsible for non-receipt or corruption of Materials sent by the User and/or arising out of any third-party data feed errors.
- The User is solely responsible for correctly completing all mandatory data fields for each Advert and for submitting Material to Dealer Auction in the correct format as specified and by any deadlines specified by Dealer Auction. Dealer Auction has no liability in respect of any Advert not appearing on the Platform where the User has failed to submit Material in accordance with this clause 4.5.
- The User is prohibited from supplying any contact details, including but not limited to, any telephone numbers or e-mail addresses, website addresses or URLs in additional data fields. Failure to comply with this rule may, at Dealer Auction’s sole discretion, result in the removal of all the User’s Adverts.
- The User shall ensure that all hyperlinks in an Advert link directly through to the page on the User’s website displaying the exact vehicle identified in the Advert. Failure to provide direct and correct links may, at Dealer Auction’s sole discretion, result in the removal of all the User’s Adverts.
USER’S OBLIGATIONS AND WARRANTIES
- The User warrants that it shall not:
- upload information to the Platform about any business except its own and shall not otherwise use the Platform for any business other than its own;
- access any unauthorised areas of the Platform;
- reverse engineer, decompile, disassemble or modify the whole or any part of any software (nor attempt to do any of the same) of the Platform (except to the extent permitted by law);
- copy, reproduce, redistribute, download, republish, transmit, display, adapt, alter, create derivative works from or otherwise extract or re-utilise any of the contents of the Platform, including taking screenshots of the Platform, scraping or caching any of the contents for access by third parties, nor mirror or frame any of the content of the Platform nor incorporate it into another website without Dealer Auction’s express written permission;
- upload files to the Platform that contain a virus and/or corrupted data and/or development code or scripts;
- use any software that causes damage or delay to the Platform; and
- place more than one Advert for any one vehicle on the Platform. Dealer Auction shall be entitled to remove any Adverts that duplicate other existing Adverts on the Platform, at its sole discretion.
- The User shall keep safe and confidential all passwords, security identification and/or encryption details relating to the Platform and will follow all security instructions issued by Dealer Auction from time to time. The User will promptly update their password details and notify Dealer Auction if it believes that any password and/or other security information has been disclosed or is otherwise at risk. The User is responsible for the security of its account and shall notify Dealer Auction of any authorised users and any changes to such users.
- The User will treat as confidential all information contained in or concerning the Platform or the Services generally. The User will not disclose such information to any third party, except to the extent that:
- it is required to do so by a court or other competent authority if such notice of disclosure as is possible is given to Dealer Auction; or
- the information is already, or becomes, public knowledge except by way of any breach of confidence.
- The Platform and any Dealer Auction Data is provided on an "as is", "as available" basis and although Dealer Auction makes reasonable efforts it does not guarantee the timelines, completeness or performance of the Platform, the goods and services advertised on the Platform or any Dealer Auction Data. No warranty is given by Dealer Auction that the Platform and the Dealer Auction Data is free from computer viruses or any other malicious or impairing computer programs and the User shall report to Dealer Auction any suspected faults to the Platform promptly after such suspected faults come to the User’s attention.
- The User shall be solely responsible for obtaining, operating and maintaining all necessary computer hardware, software, modems and telecommunications links which it requires to access and use the Platform.
- The User agrees that any questions and complaints regarding the vehicles offered for sale by the User on the Platform are the exclusive responsibility of the User.
- The User warrants that:
- it carries on a business as a motor/vehicle dealer, fleet and/or rental company, auction house or other representative acting on behalf of a motor/vehicle dealer, fleet and/or rental company or auction house for the purposes of the Usage Agreement;
- it will only use the Platform in accordance with these Conditions and shall only supply Materials which comply in all respects with these Conditions;
- all Materials are complete, accurate, legal, non-defamatory, decent, honest and truthful and comply with the all relevant codes under the regulation of the Advertising Standards Authority and all current relevant legislation;
- it shall comply with all current applicable legislation, advertising codes and any other regulatory requirements, including without limitation the Consumer Rights Act 2015; the Consumer Protection from Unfair Trading Regulations 2008; the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing; and the Financial Conduct Authority’s Consumer Credit Sourcebook;
- it contracts with Dealer Auction as a principal (notwithstanding that the User may be acting in some representative capacity) and the User has the legal right to offer for sale any vehicle, product or service advertised by it on the Platform;
- where the User is a representative, that it is authorised to place the Advert;
- the reproduction and/or publication of any Advert and its content (including but not limited to any Materials contained in the Advert) by the Dealer Auction Group and/or the use of the User’s logo and trade marks in accordance with these Conditions will not: breach any contract; infringe any third party Intellectual Property Rights; render the Dealer Auction Group liable to any proceedings whatsoever; and/or harm or detriment the reputation of the Dealer Auction Group;
- the Advert will not contain any text, photographs or videos by which any living person is or can be identified; and
- any individual purchasing products or services from Dealer Auction pursuant to the Usage Agreement on behalf of the User accepts and confirms that it has the User’s primary decision-maker’s permission.
- The User agrees to observe and comply with all applicable regulations and legislation, including obtaining all necessary customs, import or other permits to sell and/or purchase vehicles advertised on the Platform. Dealer Auction makes no representation and accepts no liability in respect of the export or import of the vehicles advertised on the Platform or in alerts such as emails sent to the User by Dealer Auction.
- Dealer Auction uses reasonable endeavours to ensure that this platform is accessed and used only by professional members of the motor trade.
- The User warrants that it shall not:
- The User shall pay to Dealer Auction the Charges on or before the due date, which shall be: 30 days from the date of invoice for the Subscription Fee; and immediately on the date of invoice for any transaction fees, unless notified otherwise. Time for payment is of the essence. Dealer Auction may use third parties (including Auto Trader and Cox Automotive) for invoicing and the collection of Charges.
- The Charges are exclusive of VAT which shall be payable by the User in addition.
- The User shall pay all sums due to Dealer Auction under the Usage Agreement without any set-off, deduction, counterclaim and/or other withholding of monies. The existence of a query on an individual item in an account shall not affect the due date of payment of the remaining balance in an account.
- If the User fails to make full payment by the due date, then all monies owing by the User to Dealer Auction shall immediately become due and payable.
- In the event the User provides credit card details to Dealer Auction, the User authorises Dealer Auction to collect an amount equal to the Charges from that credit card as they become due, which for the transaction fees shall be immediately upon the issue of invoice.
- In the event a Direct Debit mandate is cancelled by the User or the User’s bank, Dealer Auction reserves the right to suspend the Services immediately. If the mandate is not reinstated and payment of all outstanding amounts has not been made within 7 days of the cancellation, Dealer Auction may continue to suspend the Services or terminate the Usage Agreement immediately without notice. Dealer Auction reserves the right to charge an administration fee, each month, for payments not made by Direct Debit.
- Dealer Auction shall be entitled to take a 4-week pre-payment from the User as security against future Charges payable. Where Dealer Auction takes a pre-payment, Dealer Auction shall be entitled to retain this for a maximum period of 6 months or, until valid termination of the Usage Agreement and payment of all outstanding sums due to Dealer Auction (whichever is the earlier). The pre-payment shall not be used to discharge any Charges due by the User in respect of the Services unless expressly detailed by Dealer Auction in writing. The User shall be liable to pay all Charges to Dealer Auction in accordance with clause 6.1 above. Should the User opt to cancel the Usage Agreement, the User will be obliged to pay an administration fee (as determined by Dealer Auction) in addition to a further 4 week pre-payment in order to reactivate the Services at a future date.
- When a sum owing has not been received in full by Dealer Auction within 30 days from the date of invoice, or within specified terms of contract, Dealer Auction shall be entitled (without prejudice to any other right or remedy it may have) to:
- charge the User interest on any unpaid sums (both before and after judgment) at the current statutory rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 and related secondary legislation as amended or re-enacted from time to time; and
- suspend or terminate all products and services provided to the User pursuant to any agreement with Dealer Auction (or any part of them) until payment has been received in full (including any interest payable pursuant to clause 6.8.1 above).
- If the User genuinely disputes an invoice, the User must notify Dealer Auction within 7 days of the date of invoice. If the User fails to notify Dealer Auction within this time period, payment in full shall be due and Dealer Auction shall have the rights and remedies set out in clause 6.8 above.
- Unless Dealer Auction authorises payment to be made by Direct Debit, payment must be sent to the address on the invoice and any payment sent by post shall be at the User’s sole risk. All cheques must be payable as per the instructions on the invoice unless notified otherwise. Dealer Auction reserves the right to decide the amount of any credit extended to the User in its sole discretion and Dealer Auction shall be entitled to withdraw credit facilities from the User at any time without reason.
- Dealer Auction will under no circumstances be liable to refund all or any part of the Charges (including but not limited to any pre-payment) in the event of the suspension of the Services and/or cancellation or termination of the Usage Agreement (for any reason).
- Dealer Auction shall have the right to change the Charges at any time and for any reason on not less than 30 days’ written notice to the User, after which the amended Charges shall apply.
- Any free trials of any products shall be offered by Dealer Auction at its sole discretion.
INTELLECTUAL PROPERTY RIGHTS
- The User grants Dealer Auction a non-exclusive, irrevocable, perpetual, worldwide and royalty free licence to:
- use, process, analyse, publish, reproduce, sublicense and share the Data and Materials with third parties; and
- create, use and publish any derivatives of the Data and Materials or the results of any analysis of the Data and Materials for any purpose, including within other products and to share and/or sublicense the same with other customers of Dealer Auction and third parties in both aggregated and non-aggregated form.
- The User acknowledges that in the event Dealer Auction alters the Vehicle Information provided by the User and/or creates or incorporates Supplemental Information to enhance the Vehicle Information then the Data shall become a work of joint copyright co-owned by the User and Dealer Auction. To the extent that any such joint Intellectual Property Rights are not automatically vested in Dealer Auction, the User hereby assigns to Dealer Auction all such rights.
- The User acknowledges and agrees that all trademarks, names or logos of Dealer Auction (including without limitation the trade mark “Dealer Auction”) and all Intellectual Property Rights in the Platform (including the content and Dealer Auction’s database of vehicles) together with all goodwill arising out of or in connection with these, belong to Dealer Auction and/or its licensors (as appropriate) and nothing in the Usage Agreement confers on the User any licence or right to use the same except as expressly set out in the Usage Agreement.
- The User warrants that it has all necessary rights, licences and consents for Dealer Auction to publish and/or use the Materials (including, for the avoidance of doubt, any Vehicle Information you have obtained from third parties) as part of an Advert, in the provision of the Services or as otherwise set out in the Usage Agreement.
- Dealer Auction has no liability or responsibility of any kind for the accuracy or content of any information or any other aspect of any third party website and the inclusion of hypertext links to such websites does not imply any endorsement of the material contained on such websites or of the owners. When a User accesses any other website from the Platform it acknowledges and agrees that it is independent from the Platform and that Dealer Auction has no control over the content or availability of that website.
- Third party banner advertisements, pop-up advertisements and other virtual advertising may be experienced whilst using the Platform. Such third party advertisements may not have been approved by Dealer Auction and may appear on the website without its knowledge or consent, and Dealer Auction accepts no responsibility or liability in respect of the content or display of any such third party advertisements.
- Dealer Auction does not permit any links to be made to the Platform without its written permission. Hypertext links to Platform on non-consumer facing sites only may be made without the need for Dealer Auction’s written consent, provided there is no express or implied endorsement or sponsorship of the User, its commercial entity or any other website by Dealer Auction. Dealer Auction may at any time and for any reason require the User to remove any hypertext links to the Platform from any website controlled by the User.
- The User agrees that it will give all necessary assistance to Dealer Auction and complete all acts as may reasonably be required by Dealer Auction to enable it to protect and enforce its Intellectual Property Rights and those of its licensees against third parties.
- The User grants Dealer Auction a non-exclusive, irrevocable, perpetual, worldwide and royalty free licence to:
DATA PROTECTION AND CREDIT REFERENCE CHECKS
- The User and Dealer Auction warrants to the other that it shall comply with the provisions of the Data Protection Act 2018, the General Data Protection Regulations, and any amendments, updates or successors, laws and regulations to these; in so far as the Usage Agreement relates to or involves the processing of Personal Data (as defined in the Data Protection Act 2018).
- The User acknowledges and agrees that in entering the Usage Agreement, Dealer Auction may carry out credit reference checks on the User and/or any individual employed or otherwise engaged by the User. Dealer Auction reserves the right, at its sole discretion, to refuse to provide any products or services to the User if in Dealer Auction’s sole opinion any credit reference results are unsatisfactory.
CANCELLATION AND TERMINATION
- The Usage Agreement shall continue in force unless or until terminated by either party in accordance with these Conditions.
- The User shall be entitled to terminate the Usage Agreement, by giving one month’s written notice to email@example.com.
- In the event the User breaches any payment term, including where the User has chosen a pre-payment option and the pre-paid funds are insufficient to cover the User’s accrued sum of Charges, Dealer Auction shall be entitled to serve a formal notice of termination of the account in writing, allowing the User 7 days to remedy any such breach and/or deficient funds. This is without prejudice to any other rights available to Dealer Auction.
- Dealer Auction shall be entitled to terminate the Usage Agreement at any time on 7 days’ written notice to the User for convenience.
- Dealer Auction shall be entitled at its sole discretion to immediately suspend or terminate the Usage Agreement on the giving of notice by telephone, email or by letter to the User where:
- the User breaches the terms of the Usage Agreement (and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied);
- the User commits a material breach of the Usage Agreement;
- the User persistently breaches any one or more terms of the Usage Agreement;
- the User is in breach of any other agreement with Dealer Auction or the Dealer Auction Group and/or is in legal proceedings with Dealer Auction or the Dealer Auction Group in respect of any other agreement;
- the User ceases, or threatens to cease, to carry on its business;
- the User becomes insolvent or unable to pay its debts as they fall due or becomes subject to, or itself takes any steps to invoke, any law, proceedings, procedure or third party action preliminary or relating to its insolvency, winding-up, liquidation, administration or receivership (or any analogous proceedings in any jurisdiction) or any enforcement of any security against it, or to a rescheduling, composition or arrangement in respect of any of its debts;
- the User is refused credit by Dealer Auction and/or another company within the Dealer Auction Group;
- Dealer Auction receives persistent complaints about Adverts placed by the User and/or regarding the User’s business practices;
- if an individual, the User commits a criminal offence (other than a road traffic offence that does not carry a custodial sentence) and/or any offence which involves fraud or dishonesty;
- the User acts in a way which exposes Dealer Auction and/or any users of the Platform to financial loss and/or legal liabilities and/or in a way which Dealer Auction reasonably believes may be detrimental to the reputation and/or business of Dealer Auction and/or any other company in the Dealer Auction Group;
- in the reasonable opinion of Dealer Auction, the User and/or its employees have been abusive to Dealer Auction’s staff or Dealer Auction receives a complaint from a third party regarding the User’s conduct in the sale or purchase of an advertised vehicle;
- the User has provided false information, opened an account with Dealer Auction in another individual’s name or has otherwise acted dishonestly in their dealings with Dealer Auction; and/or
- the User or someone associated with the User has used the Services or the Platform illegally or fraudulently.
- Dealer Auction may at its sole discretion immediately suspend provision of the Services, terminate the Services or change the Services and/or remove any or all Adverts submitted by the User from the Platform, where:
- the User fails to comply or, Dealer Auction reasonably suspects the User is not complying, with clause 5.1 and/or clause 5.7; and/or
- any competent law enforcement or compliance authority instructs, advises or makes a recommendation to Dealer Auction to take down any of the User’s content and/or suspend the delivery of any of the Services to the User.
- Termination of the Usage Agreement shall be without prejudice to any rights accrued by Dealer Auction prior to termination and the User shall repay Dealer Auction on a full indemnity basis for all costs and expenses (including administration and legal costs) incurred by Dealer Auction in recovering any sums due to it under the Usage Agreement.
LIABILITY AND INDEMNITY
- The User acknowledges and accepts that it is technically impossible to provide the Platform and the Services free of faults, interruptions or errors and that Dealer Auction does not undertake to do so. Dealer Auction shall have no responsibility or liability arising out of or about any communications or network defects, delays or failures (whether temporary or otherwise) (a) experienced by the User or any third party while accessing the Platform; and/or (b) which impact on the Services.
- Where Dealer Auction is transferring User information to any third party about the Services, the User acknowledges that it is technically impossible to guarantee continuity of service or corruption-free or error-free transfer. Dealer Auction’s sole liability in respect of any transfer is to liaise with the relevant third party and to re-transfer the relevant information.
- Any credits offered to the User in respect of faults in the operation of the Platform shall only be payable by Dealer Auction at its sole discretion.
- From time to time, Dealer Auction 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 where possible and minimum disruption to the Platform is caused. However, the User acknowledges that Dealer Auction cannot guarantee that the Platform will be continuously available. For the avoidance of doubts, no credits shall be offered to the User in respect of interruptions to the Platform arising as a result of maintenance work and/or due to circumstances outside of Dealer Auction’s reasonable control.
- Dealer Auction does not monitor or control and shall not be responsible for, and shall have no liability to the User and any third party in respect of:
- the content of Adverts and/or Materials (including any errors or inaccuracies) posted by the User and/or any third party or the User’s rights in or to the Materials;
- any vehicles or services advertised on the Platform or which we send to you by email (and it is the User’s responsibility to satisfy itself as to the quality and nature of any goods to be purchased by it using the Platform);
- any payment for vehicles or services advertised on the Platform or which we send to you by email (and it is the User’s responsibility to satisfy itself as to the validity of any payment for vehicles sold by it using the Platform); and/or
- any feedback content submitted on the Platform, and the User agrees that such matters are its sole responsibility.
- Save as provided in clause 11.8 below, Dealer Auction shall not be liable to the User:
- for any loss or damage suffered by the User arising out of or about any total or partial failure to publish an Advert and/or for removing any Materials or Data from the Platform;
- for any loss or damage suffered by the User arising out of or about a failure by the User to keep safe and confidential all passwords, security identification and/or encryption details. The obligation to keep details secure includes the requirement that the User only submits its details to access the Dealer Auction log in page that uses Extended Validation SSL;
- for any loss or damage suffered by the User arising out of the User’s use or inability to use the Platform or any action or inaction occurring as a result of using the Platform (including any decisions and/or actions that the User takes based on and/or in reliance of the Dealer Auction Data);
- for any loss or damage suffered by the User arising out of the supply by the User of any inaccurate, incomplete, illegible or incorrect information;
- in contract, tort (including without limitation negligence), statutory duty or otherwise arising out of or about the Usage Agreement (including arising out of any Advert placed or arising out of any vehicles or services sold or purchased using the Platform) for:
- (a) consequential, indirect or special loss or damage;
- (b) any loss of goodwill or reputation;
- (c) loss of contracts, business and/or opportunity;
- (d) loss of profits;
- (e) loss of revenue or anticipated savings;
- (f) business interruptions;
- (g) loss of or corruption to data howsoever caused (including caused as a result of cyber-attacks by third parties); and/or
- (h) any economic and/or other similar losses;
and in each case such liability is excluded whether it is foreseeable, known, foreseen or otherwise and whether such losses are direct, indirect, consequential or otherwise; and
- unless a claim is brought by the User against Dealer Auction within 3 months of the date of the cause, or first in the series of causes of related events, giving rise to the claim.
- Subject to clause 11.6 and save as provided in clause 11.8, the total aggregate liability of Dealer Auction in contract, tort (including without limitation negligence), statutory duty or otherwise (unless otherwise excluded), in respect of all claims arising under or in connection with the Usage Agreement shall not exceed 125% of one month’s Subscription Fee.
- Nothing in the Usage Agreement shall exclude or restrict any liability Dealer Auction may have for death or personal injury caused by its negligence, for fraudulent misrepresentation and/or for any other liability which it is not permitted to exclude by law.
- Any warranties, terms or conditions of any kind (including in respect of the Platform, vehicles or services advertised on the Platform or in any Dealer Auction alerts and/or any data Dealer Auction provides to the User) whether express or implied, statutory or otherwise are hereby expressly excluded to the maximum extent permitted by law, including without limitation:
- implied terms of satisfactory quality or fitness for purpose;
- any warranty that the Dealer Auction Data is accurate or complete; and
- any warranty that the Dealer Auction Data does not infringe the intellectual property rights or other rights of a third party.
- The User shall indemnify and keep Dealer Auction fully indemnified against all claims, costs, proceedings, demands, losses, damages, expenses or liability whatsoever arising out of or in connection with any breach of the Usage Agreement by the User, any third party complaints or claims brought against Dealer Auction in respect of any Advert or Materials, any claim that the use by Dealer Auction of any Materials infringes any third party Intellectual Property Rights or other third party rights and/or any third party claim against Dealer Auction relating to the sale and/or purported sale of a vehicle by the User including where the User has failed to fulfil any offer accepted by it, or relating to the purchase and/or purported purchase of a vehicle where the User has made an offer which has been accepted but not subsequently fulfilled.
- Dealer Auction shall not be liable to the User and/or be deemed to be in breach of the Usage Agreement by reason of any delay in performing and/or any failure to perform its obligations under the Usage Agreement if the delay and/or failure is due to any cause beyond Dealer Auction’s reasonable control (including but not limited to any act of God, lock out or other industrial action, governmental action or restriction, war, terrorism, cyber-attack, fire, flood, infrastructure failure, power failure, strike or civil commotion, interruptions in electrical or telecommunications services or delays or failures of the internet or other communications systems necessary for the provision of the Services) and time for performance of that obligation shall be extended accordingly.
- The Usage Agreement contains the entire agreement and understanding between the parties and supersedes all prior agreements, arrangements, statements and understandings between the parties relating to the subject matter of the Usage Agreement. Each party acknowledges that it has not entered the Usage Agreement in reliance upon any representation not expressly set out in the Usage Agreement and neither party shall be liable in respect of any representation made prior to and not contained in the Usage Agreement. Nothing in these Conditions shall exclude or limit Dealer Auction’s liability for fraudulent misrepresentation.
- The Usage Agreement is personal to the User, and the User may not assign or transfer the Usage Agreement without the prior written consent of Dealer Auction. Dealer Auction reserves the right to assign or subcontract the Usage Agreement and any of its rights and obligations under the Usage Agreement to a third party.
- Where two or more persons are named on the Usage Agreement as the User, their liability shall be joint and several.
- Except as set out in these Conditions, no variation of the Usage Agreement shall be binding unless agreed in writing and signed by an authorised representative of Dealer Auction.
- No failure or delay by Dealer Auction to exercise any right or remedy under the Usage Agreement shall constitute a waiver of that right or remedy nor shall it prevent or restrict the further exercise of that right or remedy. No single or partial exercise by Dealer Auction of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- If any provision of the Usage Agreement is found by any competent authority to be invalid, unlawful or otherwise unenforceable then such provision shall be severed from the remaining provisions in the Usage Agreement which shall continue to be valid and enforceable fully permitted by law.
- Nothing in the Usage Agreement shall confer any rights or benefits, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person other than the User and Dealer Auction.
- The Usage Agreement shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.