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1. Introduction
1.1 The Service (as defined below) is provided by Used Car Sites Ltd T/A VCARS, registered in England & Wales under number 4546950 with its registered office at 1-2 Millers House, The Maltings, Roydon road, Stanstead Abbotts, Herts, SG12 8HN. VAT number is 806075443.
1.2 The Service is supplied subject to these terms and conditions. Please read them carefully. They cancel and replace any previous versions. By registering for or using the Service, the Client agrees to be bound by these terms and conditions.
2. Definitions
2.1 The following terms shall have the following meanings:
 
Agreement these terms and conditions
Applicable Laws all applicable laws, regulations and codes of conduct
Client the entity who applies to use the Service
Client Material all Data provided by the Client to Used Car Sites Ltd for use in connection with the Service including Client Vehicle Data and also information uploaded by the Client to the Website
Client Vehicle Data vehicle information input by the Client into the system (eg vehicle registration, vehicle image, mileage, price, description)
Data text, content, graphics, images, software, data and other materials in whatever format
Domain the domain name at which the Website is to be located
Intellectual Property Rights worldwide copyright, design rights, database right, patents and any rights to inventions, know-how, trade and business names, trade secrets, logos and devices, trade and service marks (whether registered or unregistered) and any applications therefor and all rights in confidential information
the VCARS DNA Website the website at www.vcarsdna.com or any related website
Motor Website any website to which the Client wishes to export the Vehicle Data including the Website, any other website operated by the Client and any third party motor listings website
Personal Data as defined in the Data Protection Act 1998
Service the dealer management service known as "DNA" and all related services including hosting of the Website
System hardware, servers and software used by Used Car Sites Ltd to supply the Service
Vehicle any vehicle entered by the Client onto the System
Vehicle Data all Data on the System relating to each Vehicle including Client Vehicle Data and also vehicle information generated via the Service such as make, model, colour
Vehicle Listings vehicle listings which are intended for use on the Website or on other websites and which are generated by means of the Vehicle Data
Website a website of the Client hosted by Used Car Sites Ltd and upon which it is intended to display Vehicle Listings
in Writing all forms of visible reproduction in permanent form (including electronic messages unless otherwise stated)
2.2 Words in the singular include the plural and vice versa. References to a "person" shall include any individual, firm, unincorporated association or body corporate. Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision, as amended, re-enacted or extended at the relevant time. The word "including", unless the context otherwise requires, shall mean "including without limitation". The headings in this agreement are for convenience only and shall not affect its interpretation.
3. Changes to Terms and Conditions
3.1 Used Car Sites Ltd may make changes to these terms and conditions by posting the revised version on the VCARS DNA Website for a reasonable period before they become effective. The Client agrees to check the VCARS DNA Website regularly. The Client will be bound by the revised agreement if it continues to use the Service following the effective date shown.
4. The Service Generally
4.1 The Client must provide the Client Material in the format specified by Used Car Sites Ltd.
4.2 The Client is solely responsible for the Client Material. The Client agrees to ensure that the Client Material is accurate and remains up to date, that it is not misleading, that it complies with all Applicable Laws, that it does not infringe any third party intellectual property or other rights, and that it is not defamatory offensive, vulgar, racist, abusive, invasive of another's privacy or otherwise inappropriate.
4.3 Used Car Sites Ltd may, without notice, access, copy, preserve, disclose, remove, suspend or delete any Client Material if it breaches this agreement or if Used Car Sites Ltd considers it necessary to protect Used Car Sites Ltd or its other customers or the public or third parties or if Used Car Sites Ltd has reasonable grounds for believing that a criminal act has been committed or if Used Car Sites Ltd is required to do so by law or appropriate authority.
4.4 The Client must not sign up for or use the Service unless it has sufficient technical expertise to use the Service including export of Vehicle Data to a Motor Website and upload of Client Materials to the Website. It is the client's responsibility to satisfy itself that the Service is suitable for the Client's purposes.
4.5 The Client is responsible for selecting which Vehicle Data is to be exported to which Motor Website. Used Car Sites Ltd does not guarantee that the Vehicle Data or any other aspect of its Service will comply with the formatting or other requirements of any particular Motor Website (excluding www.vcars.co.uk).
4.6 Used Car Sites Ltd has no responsibility to provide any form of support. Used Car Sites Ltd may in its discretion decide to provide support and, if so, it is entitled to make such support conditional upon payment of its standard fees for such services.
4.7 Used Car Sites Ltd shall use reasonable endeavours to make at least a daily back-up of Client Materials and Vehicle Data. The Client acknowledges that Data may be irretrievably damaged or lost if a fault occurs between backups or if the backup fails to work. Used Car Sites Ltd is not liable for any such losses. The Client is responsible for making its own backup of Client Materials in order to minimise the risk of loss.
4.8 Used Car Sites Ltd has no responsibility to provide a copy of the Vehicle Data to the Client. Used Car Sites Ltd may in its discretion do so on request and, if so, it is entitled to make such provision conditional upon payment of its standard fees for such services. Used Car Sites Ltd is in any event entitled to delete Vehicle Data after 14 days following termination of this Agreement.
4.9 Used Car Sites Ltd does not guarantee that the Service will be error-free or uninterrupted. Used Car Sites Ltd is not liable for such interruptions or errors provided that they are not deliberate acts of Used Car Sites Ltd and provided that Used Car Sites Ltd uses reasonable endeavours to procure that any errors or interruptions of which it becomes aware are corrected as soon as reasonably practicable.
4.10 Used Car Sites Ltd is entitled, without notice and without liability, to suspend the Service for repair, maintenance, improvement or other technical reason. If so, Used Car Sites Ltd will use reasonable endeavours to ensure that the suspension takes place at a time when the Service is least likely to be used and that the suspension is for the shortest period possible.
4.11 Used Car Sites Ltd does not guarantee to the Client any particular level of enquiries, customers or revenues arising from use of the Service.
4.12 The Client:
 
4.12 a) shall provide reasonable co-operation to Used Car Sites Ltd in supplying the Service and shall comply with Used Car Sites Ltd's reasonable requirements;
4.12 b) shall promptly provide Used Car Sites Ltd with such information and documents as it may reasonably request for the proper performance of the Service; and
4.12 c) shall not take any step which may interfere with or obstruct the proper performance of the Service.
4.13 The Client shall not in connection with the Service breach any Applicable Laws or infringe any third party rights.
4.14 The Client's online account for use of the Service is for the Client's personal use only and is non-transferable. The Client must not authorise or permit any other person to use its account. The Client must take reasonable care to protect and keep confidential its password and other account or identity information. The Client must notify Used Car Sites Ltd immediately of any apparent breach of security such as loss, theft, misuse or unauthorised disclosure or use of a password. The Client is responsible for third parties who use its account or identity (unless and to the extent that Used Car Sites Ltd is at fault).
5. The Domain and Website
5.1 This section of the terms and conditions applies where the Client elects to set up a Website.
5.2 The Client shall inform Used Car Sites Ltd which Domain it wishes to use for the Website. The Client must satisfy itself that the Domain does not infringe third party rights and is otherwise suitable for its purposes.
5.3 If the Domain is not already registered, Used Car Sites Ltd shall use reasonable endeavours to apply to register the requested Domain at its expense. The Client shall supply all contact and other information required by Used Car Sites Ltd for this purpose. Used Car Sites Ltd cannot guarantee that the Domain will be available or that the application will be granted. If the application is successful, Used Car Sites Ltd shall use reasonable endeavours to set the Client up as the registrant and administrative contact of the Domain. The Client shall be bound by all registrar, registry and other terms and conditions(from time to time in force) relating to the registration/use of the Domain.
5.4 It is entirely the responsibility of the Client to manage the Domain and to arrange for and pay for renewals of the Domain. The Client must not transfer the Domain to a third party during the period of this Agreement without the prior consent of Used Car Sites Ltd in Writing.
5.5 Used Car Sites Ltd reserves the right to set limits on bandwidth and disk space which may be utilised by the Website and/or to charge at its standard rates if specified limits are exceeded.
5.6 For the avoidance of doubt, the Client is entirely responsible for selection of content for the Website and for all aspects of operating the Website including compliance with Applicable Laws and for the creation of appropriate terms and conditions, privacy policies and other legal wording.
5.7 During the period of this Agreement, and for 12 months thereafter, the Client agrees to maintain on the Website a Vcars link consisting of a single logo or other image (maximum size 300x100 pixels) and a text or other link to www.vcars.co.uk in the format and location specified by Used Car Sites Ltd.
6. Fees
6.1 Except where otherwise expressly stated in this Agreement, the Service shall be free of charge. Used Car Sites Ltd reserves the right in future to charge a fee for use of parts. or all, of the Service by giving at least 28 days' notice in Writing. If so, and if the Client is not willing to pay such fee, the Client must terminate the Agreement before the fee take effect.
7. Termination
7.1 The Agreement shall continue until terminated by either party at any time by giving immediate notice in Writing to the other party.
7.2 Upon termination of this Agreement for any reason:
 
7.2 a) accrued rights and liabilities will be unaffected;
7.2 b) all licenses shall terminate;
7.2 c) Used Car Sites Ltd shall cease supplying the Service which shall include removal of all Vehicle Listings; and
7.2 d) all clauses which are expressed or clearly intended to survive termination together with any other provision necessary for the interpretation or enforcement of this Agreement.
8. Intellectual Property Rights
8.1 All trade marks, logos, content, graphics, images, photographs, animation, videos, text and software used on or in connection with the Service are the intellectual property of Used Car Sites Ltd or its suppliers or clients. Used Car Sites Ltd grants to the Client a non-exclusive, royalty-free worldwide license to use the Service for the purposes of the Agreement. The Client may not otherwise use, sublicense, retrieve, display, modify, copy, print, sell, distribute, download, hire, reverse engineer (unless permitted by applicable law) or create extracts of, or derivative works from, such material without Used Car Sites Ltd's specific prior consent in Writing.
8.2 The Client must not reverse-engineer or decompile any of Used Car Sites Ltd’s software in any way (except to the extent allowed by applicable law). The Client must not create or use a modified or derivative version of Used Car Sites Ltd's software or distribute or sublicense such software to third parties.
8.3 Used Car Sites Ltd acknowledges that all Intellectual Property Rights in the Client Materials are owned by the Client. The Client grants to Used Car Sites Ltd a non-exclusive, royalty-free, transferable (with right to sub-license), worldwide license during the period of this Agreement to use, copy, alter, display, sublicense, and create extracts of, or derivative works from, the Client Materials in any media formats including for the purpose of redistribution of the Service or for Used Car Sites Ltd's own marketing purposes. The Client waives all moral rights in relation to such material to the extent legally permitted.
9. Liability and Indemnity
9.1 Any provisions in this agreement excluding or limiting liability will apply regardless of the form of action, whether under statute, in contract or tort including negligence or otherwise. Nothing in this agreement in any way excludes or restricts either party's liability for negligence causing death or personal injury or for fraudulent misrepresentation or for any liability which may not legally be excluded or limited.
9.2 Used Car Sites Ltd shall not be liable for breach of this Agreement unless the Client has given Used Car Sites Ltd prompt notice of the breach in Writing and a reasonable opportunity thereafter to rectify the breach at Used Car Sites Ltd's expense.
9.3 The liability of Used Car Sites Ltd under or in connection with this Agreement in respect of for any act or omission or any series of connected acts or omissions shall be limited to the sum of £1,000.
9.4 In no circumstances shall Used Car Sites Ltd be liable for any consequential, indirect or special damages or for economic losses (including without limit, loss of revenues, profits, contracts, business or anticipated savings) or for damage to or loss of data or for damage for loss of reputation.
9.5 The Client agrees to indemnify Used Car Sites Ltd against all claims and liabilities directly or indirectly related to the Client's use of the Service or to the Client's breach of this Agreement (except to the extent that Used Car Sites Ltd is at fault).
9.6 Both parties exclude all terms that are not expressly stated herein, including but not limited to any implied warranties as to quality, fitness for purpose or ability to achieve a particular result.
10. Personal Data
10.1 If Used Car Sites Ltd processes any Personal Data on behalf of the Client:
 
10.1 a) Used Car Sites Ltd shall do so only in accordance with this agreement or the Client's written instructions, and
10.1 b) Used Car Sites Ltd will at all times have appropriate technical and organizational measures in place to protect all such Personal Data against unauthorised or unlawful processing, accidental loss, destruction or damage and that, having regard to the state of technological development and the cost of implementing any measures, the measures shall ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and to the nature of the data to be protected.
11. Mutual Warranties
11.1 Each party represents and warrants to the other party that:
 
11.1 a) it has authority to enter into and be bound by this Agreement; and
11.1 b) the execution of this Agreement and the performance of its obligations hereunder do not and will not violate any other agreement by which the party is bound.
12. Confidentiality
12.1 Both parties shall keep in confidence any information in any form (including oral) of a confidential nature obtained in connection with this Agreement (including the terms of this Agreement) and shall not without the prior consent in Writing of the other party use that information other than for the purposes of this Agreement or disclose it to any person other than its personnel who need to know the information for the purposes of this Agreement.
12.2 This clause shall not apply to:
 
12.2 a) information which becomes public knowledge has been published other than through a breach of this Agreement;
12.2 b) information lawfully in the possession of the recipient before the disclosure took place;
12.2 c) information obtained from a third party who is free to disclose it; and
12.2 d) information which a party is requested to disclose and if it did not could be required by law or regulation or competent authority to do so.
12.3 This clause will remain in effect for three years from the date of this Agreement.
13. Notices and Service
13.1 Any notice or other information required or authorised by this agreement to be given by any party may be given by hand or sent (by first class pre-paid post or facsimile transmission) to another party at its registered office or such other address as that party may notify to the other party for this purpose from time to time or, unless stated otherwise, by email (provided that the email has not been returned).
13.2 Any notice or other information given by post which is not returned to the sender as undelivered shall be deemed to have been given on the second day after the envelope containing the same was so posted and proof that the envelope containing any such notice or information was properly addressed pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given.
13.3 Any notice or other information sent by facsimile transmission shall be deemed to have been duly sent on the date of transmission, provided that a confirming copy thereof is sent by first class pre-paid post to the other party within 24 hours after transmission.
14. General
14.1 This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supercedes any previous communications or agreements between the parties. Both parties acknowledge that there have been no misrepresentations and that neither party has relied on any pre-contractual statements. Liability for misrepresentation (excluding fraudulent misrepresentation) relating to the terms of this Agreement is excluded.
14.2 Neither party is liable for breach of this Agreement (excluding non-payment) if the failure or delay is caused by any circumstances beyond the party's reasonable control including third party telecommunication failures.
14.3 Unless otherwise stated in this Agreement, no amendment or variation of this Agreement shall be effective unless in Writing (not email), expressed to be an amendment to this Agreement and signed by a duly authorised representative of each of the parties.
14.4 The Client may not assign the whole or any part of its rights or obligations under this Agreement without the prior consent in Writing of Used Car Sites Ltd, not to be unreasonably withheld or delayed.
14.5 The failure of a party to exercise or enforce any right under this Agreement shall not he deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
14.6 If any provision of this Agreement is held to be unlawful, void or unenforceable in whole or in part, this Agreement shall continue in force in relation to the unaffected provisions and the remainder of the provision in question, and the parties will renegotiate the offending provision in good faith to achieve the same objects.
14.7 Save insofar as expressly provided otherwise in this agreement, no third party may enforce any clause in this Agreement under the Contracts (Rights of Third parties) Act 1999.
14.8 The relationship of the parties is that of independent contractors. Except as otherwise stated in this Agreement, nothing in this Agreement shall constitute the parties as partners, joint venturers or co-owners, or constitute any party as the agent, employee or representative of the other(s), or empower any party to act for, bind or otherwise create or assume any obligation on behalf of the other(s), and no party shall hold itself out as having authority to do the same.
14.9 Each party agrees at any time upon the reasonable request of the other to do, execute, acknowledge and/or deliver all such further acts, deeds, documents and/or instruments as may be required to effect any of the transactions contemplated by this Agreement.
14.10 This Agreement shall be governed by the laws of England and each party hereby submits to the exclusive jurisdiction of the English Courts.
Version:
Date:
1.0
21 December 2011