1. AGREED TERMS
1. INTERPRETATION
The definitions and rules of interpretation in this clause apply in this agreement.
1.1 Definitions:
Acceptance Tests: tests run by the Supplier to verify compliance of the Site with the Site Specification.
Charges: the charges in respect of the Services set out in the Used Car Minimum Term Order Form, together with any charges arising from the Change Control Procedures.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Customer Materials: the content provided to the Supplier by the Customer from time to time for incorporation in the Site.
Developer: any sub-contractor engaged by the Supplier from time to time to provide the Project and/or Services on the Supplier’s behalf.
Developer Materials: any content belonging or licensed to the Developer which is incorporated in the Site by the Developer.
Effective Date: the date of this agreement as determined by the Used Car Minimum Term Order Form.
Group: a company, together with any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
Intellectual Property Rights: copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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.
Project: the design and development of the Site in accordance with the Specification in Schedule 1.
Project Plan: any timetable within which the Supplier will implement the Project and Services as set out in Schedule 1.
Server: a computer server administered by or on behalf of the Supplier.
Services: the hosting and any other services to be provided pursuant to this agreement as set out in Schedule 1.
Site: the website to be hosted by the Supplier pursuant to this agreement.
Site Software: the software for the Site commissioned by the Customer, developed by or licensed to the Supplier.
Site Specification: the specification and functionality for the Site and the scope of work, as set out in Schedule 1
Third Party Products: any third party software or other products or materials required for the Site or specified by the Customer.
Visitor: a visitor to the Site.
1.2 In the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement and includes all subordinate legislation made under it.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.6 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.
1.7 Writing or written includes email.
2. SCOPE OF THE PROJECT
2.1 The Supplier shall use reasonable skill and care to:
(a) design, develop and deliver the Site in accordance with the Project Plan; and
(b) provide the Services and host the Site.
2.2 The Supplier may supply the Services though a Developer and references to the Supplier shall be construed to include the Developer where the context allows.
3. CUSTOMER RESPONSIBILITIES
3.1 The Customer acknowledges that the Supplier's ability to provide the Project and the Services is dependent upon the full and timely co-operation of the Customer and the completeness and accuracy of any information and data the Customer provides to the Supplier. Accordingly, the Customer shall:
(a) provide the Supplier with access to, and use of, all information, data and documentation reasonably required by the Supplier for the performance by the Supplier of its obligations under this agreement.
(b) Treat its obligations to the Supplier as obligations also to the Developer.
3.2 The Customer shall be responsible for the accuracy and completeness of the Customer Materials on the Site in accordance with clause 11.
4. DEVELOPMENT AND ACCEPTANCE OF SITE
4.1 Once the Supplier has completed the design and development of the Site in accordance with the Project Plan, the Supplier shall run Acceptance Tests.
4.2 Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. The Supplier shall notify the customer when the tests have been passed.
4.3 If the Site fails the Acceptance Tests, the Supplier shall remedy any defects promptly in order to ensure that the Site passes the Acceptance Tests on a retest.
4.4 If such a retest demonstrates that the Site is still not in accordance with the Site Specification, the Customer may, by written notice to the Supplier, elect at its sole option:
(a) to order (without prejudice to its other rights and remedies) further tests on the Site on the same terms and conditions as the retest. If the Site fails such further tests, the Customer shall be entitled to proceed under clause 4.4(b) or clause 4.4(c); or
(b) to accept the Site subject to a reduction of the Charges, such reduction to be an amount that is reasonable, taking into account the circumstances. In the absence of written agreement as to the reduction within 14 days of the date of the notice given by the Customer pursuant to this clause 4.4, the Customer shall be entitled to reject the Site in accordance with clause 4.4(c); or
(c) to reject the Site as not being in conformity with this agreement, in which event this agreement shall automatically terminate and the Supplier shall (without prejudice to the Customer’s other rights and remedies) forthwith refund to the Customer all sums already paid to the Supplier under this agreement.
4.5 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer's sub-contractors or agents for whom the Supplier has no responsibility, the Site shall be deemed to have passed the Acceptance Tests notwithstanding such defect. The Supplier shall provide assistance reasonably requested by the Customer in remedying any such defect by supplying additional services or products. The Customer shall pay the Supplier in full for all such additional services and products at the Supplier's then current fees and prices.
4.6 Acceptance of the Site shall be deemed to have taken place if the Customer uses any part of the Site for any revenue-earning purposes.
4.7 The Customer may request changes to the Site and/or Services after the date of Acceptance, subject to the Supplier’s agreement and payment of any additional fees and costs at the Supplier’s then current rates.
5. THIRD PARTY PRODUCTS
Any Third Party Products required shall be supplied in accordance with the relevant licensor's standard terms. The licence fee for such Third Party Products is included in the Charges payable under clause 6.1.
6. CHARGES AND PAYMENT
6.1 The Supplier shall issue a monthly VAT invoice in respect of the Charges, and the Customer shall pay to the Supplier the Charges set out in such Supplier's invoice within 14 days of the date of the Supplier's invoice.
6.2 All Charges are exclusive of VAT.
6.3 If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier's remedies under clause 13, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of Barclays Bank from time to time. Such interest shall accrue and compound on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7. WARRANTIES
7.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
7.2 The Supplier shall develop the Site and perform the Services with reasonable care and skill.
7.3 The Supplier warrants that the Site will perform free of material defects during the period the Supplier is hosting the Site. If the Site does not so perform, the Supplier shall, for no additional charge, carry out work necessary in order to remedy the problem.
7.4 The warranty set out in clause 7.3 shall not apply to the extent that any defect is caused by any act or default of the Customer, its employees or sub-contractors, or any Visitors, or by any Customer Materials, Third Party Software, or by malware attack or other cause beyond the Supplier’s reasonable control, in which case remedial work may incur additional fees and costs at the Supplier’s then current rates.
7.5 This agreement sets out the full extent of the Supplier's obligations and liabilities in respect of the Project and the Services. All conditions, warranties or other terms concerning the Project and the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded so far as possible in law.
8. LIMITATION OF REMEDIES AND LIABILITY
8.1 Nothing in this agreement shall operate to exclude or limit the Supplier's liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
8.2 The Supplier shall not be liable to the Customer for: a) any damage to software; b) damage to or loss of data; c) loss of profit or anticipated profits; d) loss of revenues; e) loss of anticipated savings; f) loss of goodwill or reputation; g) loss of business opportunity; or h) for any indirect or consequential loss or damage.
8.3 Subject to clause 8.1, the Supplier's aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 110% of the total Charges payable by the Customer to the Supplier under this agreement in that calendar year.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in the Site (including in the content of the Site and the Site Software), but excluding the Customer Materials and any Developer Materials, arising in connection with this agreement shall be the property of the Supplier, and the Supplier hereby grants the Customer a non-exclusive worldwide licence of such Intellectual Property Rights for the purpose of operating the Site during the term of this agreement.
9.2 If any Developer Materials are used in the Site, the Customer is granted a non-exclusive worldwide sub-licence by the Supplier to use them in the Site during the term of this agreement.
9.3 The Customer grants to the Supplier and Developer a non-exclusive worldwide licence of Intellectual Property Rights in the Customer Materials for the purpose of the Project and the Services during the term of this agreement.
9.4 The Customer shall fully indemnify the Supplier and any Developer against all damages, losses, costs (including legal costs), expenses and other liabilities arising as a result of any action or claim that the Customer Materials infringe the Intellectual Property Rights of a third party.
9.5 The Supplier shall fully indemnify the Customer against all damages, losses, costs Including legal costs), expenses and other liabilities arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 9.4.
9.6 The indemnities in clause 9.4, clause 9.5, clause 10.3 and clause 11.3 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require;
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim; and
(e) an indemnity extends to each member of the indemnified party’s Group and the respective officers, agents, partners, directors, shareholders, suppliers, and employees of the indemnified party and each Group member.
9.7 The indemnities in clause 9.4, clause 9.5, clause 10.3 and clause 11.3 may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the indemnified party.
10. SITE CONTENT
10.1 The Supplier shall:
(a) update the Site with Customer Materials provided from time to time by the Customer.
(b) grant the Customer access to the Server in order to update information held on the Site; and
(c) include only Customer Materials and Developer Materials on the Site.
10.2 The Customer warrants that:
(a) it has full rights to use and display, and license the use and display of the Customer Materials in the Site;
(b) the Customer Materials are accurate and not misleading and do not infringe any applicable laws, regulations or third party rights (including material which is pornographic, offensive, abusive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, or in breach of any third party’s privacy, rights in personal data or Intellectual Property Rights (Inappropriate Content)).
10.3 The Customer shall fully indemnify the Supplier and Developer against all damages, losses, costs (including legal costs), expenses and other liabilities arising as a result of any action or claim that the Customer Materials constitute Inappropriate Content or otherwise arising in connection with the Customer’s use, display or modification of the Site.
10.4 The Customer acknowledges that the Supplier has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. The Supplier reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
10.5 The Supplier may include the statement "Powered by Exchange & Mart" or other promotional message on the home page of the Site, or in the footer of the site in a form to be agreed.
11. DATA PROTECTION
11.1 The Supplier warrants that, to the extent it processes any Personal Data on behalf of the Customer:
(a) it shall act only on instructions from the Customer; and
(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
11.2 In this clause 11, Personal Data has the meaning given in the Data Protection Act 1998 (DPA).
11.3 The Customer warrants that its use of the Site will comply with all applicable law, including the DPA, and shall fully indemnify the Customer against all damages, losses, penalties, costs (including legal costs), expenses and other liabilities arising as a result of any action, prosecution or claim arising from or in connection with a breach of this warranty.
12. TERM AND TERMINATION
12.1 This agreement shall commence on the Effective Date and shall (subject to earlier termination under this clause 12) continue for an initial minimum period as specified in the Used Car Minimum Term Order Form, terminable thereafter by either party giving notice to the other party as detailed in the Used Car Minimum Term Order Form.
12.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of the agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the agreement;
(d) the other party suspends, or threatens to suspend its payments of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, becomes bankrupt or insolvent or enters into liquidation or otherwise can be regarded as insolvent or the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3 The Supplier shall, without limiting its other rights or remedies, have the right to suspend performance of the Project and Services during such period:
(a) as the Customer fails to pay any amount due under this agreement on the due date for payment, until it is paid in full; or
(b) as the Supplier’s performance of any of its obligations under this agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, and the Supplier may rely on such Customer default to relieve it from the performance of any of its obligations during such period.
12.4 On termination of this agreement by the Supplier under clause 12.2, all licences granted by the Supplier under this agreement shall terminate immediately.
12.5 On expiry or termination of this agreement otherwise than on termination by the Supplier under clause 12.2, the Supplier shall provide to the Customer an electronic copy of the Site (including all content on the Site). The Supplier shall provide such assistance as is reasonably requested by the Customer in transferring the hosting of the Site to the Customer or another service provider, subject to the payment of the Supplier's expenses reasonably incurred.
12.6 On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
13. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
14. CONFIDENTIALITY
14.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
14.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
14.3 The obligations set out in this clause 5 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this clause 15; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
14.4 The obligations of confidentiality in this clause 15 shall not be affected by the expiry or termination of this agreement.
15. NOTICES
15.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address which has been expressly specified by the receiving party for such purpose (Specified Address).
15.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 1pm on the second Business Day after posting or at the time recorded by the delivery service.
(c) if sent by email, at [9.00 am] on the next Business Day after transmission.
15.3 A Business Day in this clause 16 shall mean a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
15.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.5 A notice given under this agreement is not valid if sent by email to an address which is not the Specified Address.
16. ASSIGNMENT
Neither party may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
17. ENTIRE AGREEMENT
17.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18. THIRD PARTY RIGHTS
18.1 Except for and Developer, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
18.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.
19. VARIATION
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
21. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22. SEVERANCE
22.1 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.
22.2 If 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.
23. GOVERNING LAW
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
24. JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement has been entered into on the date stated on the Used Car Minimum Term Order Form.