AUTOi Service Subscription Agreement
This AUTOi Service Subscription Agreement ("Agreement") is made between the entity that accepts the terms of this Agreement ("You") and AUTOD2 Limited ("Us") or ("We"). This Agreement consists of the AUTOi Service Term Sheet, the AUTOi App Licence, the terms and conditions set out below and the Service Availability Agreement (and in the event of any conflict between them, the documents will take priority in this order)
This Agreement is effective on the date we provide you with confirmation of activation of the AUTOi Services.
Terms and Conditions
1. Use of the AUTOi System
1.1 You agree to enter into this Agreement, and use the AUTOi Services for business purposes only. This Agreement governs your use of the AUTOi App and the AUTOi Services.
1.2 With effect from the activation of your account, we grant you a non-exclusive, non-transferable, worldwide and limited right to install and use the AUTOi App (in accordance with the terms of the AUTOi App Licence) and to access and use the AUTOi Services. These rights are not perpetual, and are conditional on your continued compliance with the terms of this Agreement, including your obligations to pay for the AUTOi Services. We reserve all rights not expressly granted to you in this Agreement.
1.3 You may not reverse engineer, decompile or disassemble the AUTOi App, or any component of the AUTOi Services, except and only to the extent permitted in accordance with the law. You may not rent, lend, lease, resell or host to or for third parties save to the extent necessary to share any information contained within the AUTOi Services with any consumer. You are not permitted to separate and use the components of the AUTOi App or AUTOi Services on two or more computers or hand held devices unless we have specifically granted you this permission.
1.4 You acknowledge that you are solely responsible for any third party software that you install or use on your own systems, in conjunction with or to facilitate the operation of the AUTOi Services. You acknowledge that we are not a party to, and are not bound by any terms governing the use of any third party software. Should you install or use any third party software in conjunction with the AUTOi Services, you may not do so in any way that would affect or infringe any intellectual property rights of us or our licensors.
1.5 You acknowledge that you are solely responsible for protecting the confidentiality of all user IDs and authentication to access any of the AUTOi Services provided to you by us. You acknowledge that you are responsible for all activity conducted within your AUTOi Service accounts, including that of any users and dealings with third parties. You acknowledge that you are responsible for keeping your accounts and passwords confidential, and you agree to inform us of any misuse of your accounts or any other security incidents arising.
2. Pricing and Payment
2.0 There is No monthly subscription for account holders with a Free Buyers Account. Monthly subscriptions are only payable with our premium appraisal products.
2.1 Any subscription costs are payable in advance as set out in the AUTOi Service Term Sheet, and you acknowledge that you are responsible for payment of the relevant Service Fees in accordance with the payment schedules in the AUTOi Service Term Sheet.
2.2 The Services Fees and any other charges payable under this Agreement are exclusive of value added tax and any other taxes or duties which may are imposed which must be paid by you at the rate and in the manner for the time being prescribed by law.
2.3 We shall be entitled at any time after the end of one calendar year following the activation of your account, increase the Services Fee by giving you not less than 30 days prior written notice of such increase.
2.4 You acknowledge that we reserve the right to suspend or terminate your access to the AUTOi Services in the event of any non-payment of any Service Fees or any other sum due and payable in accordance with this Agreement.
2.5 If any sum payable under this Agreement is not paid on the due date, then, without prejudice to any other rights and remedies we may have, you acknowledge that we have the right the charge you interest on such sum on a day to day basis (as well as before any judgement) from the date that the payment fell due until the date of actual payment at a rate of 4% above the Bank of England base lending rate from time to time in force.
2.6 AUTOi will generate a buyers fee invoice if you are successful and win a vehicle listed for sale. The payment due date is 7 days from the date of the invoice and can be completed online. If you don't settle your buyers fees within the required time your account may be suspended for non-payment and you may be responsible for collection costs.
3. Installation and Your Responsibilities
3.1 Within 5 days of your acceptance of these terms, we agree to activate your account for the AUTOi Services, and we will email you with a welcome pack including details of how to access the online services.
3.2 You acknowledge that you are responsible for maintaining an appropriate VPN or other internet connection in order to access and use the AUTOi Services, in accordance with any requirements specified in the AUTOi Service Term Sheet from time to time.
3.3 In connection with the AUTOi Services, you acknowledge that you are solely responsible for all content uploaded via the AUTOi App and stored within the AUTOi Services using the activation code and passwords provided to you.
3.4 You acknowledge that you are the data controller in respect of any personal information included within the Customer Data. We will process your Customer Data as a data processor, by storing and making the Customer Data available acting only on your instructions, and in accordance with the terms of this Agreement. On expiry of this Agreement and your use of the AUTOi Services, we may extract and/or delete the Customer Data. We will only process the Customer Data for the purpose of providing the AUTOi Services and performing our obligations under this Agreement. We will take reasonable technical and organisational measures to secure the AUTOi Services and help protect your Customer Data from unauthorised access, use or disclosure. You acknowledge that we will use sub-contractors to provide some of the AUTOi Services
3.5 You warrant that the Customer Data will not include any inappropriate, unlawful, obscene, defamatory, offensive or illegal material, nor any virus or malicious code.
4.1 The AUTOi App and AUTOi Services are made available as is without any warranty, condition or representation as to their functionality or availability, save that the AUTOi Service will correspond to the service description for a period of 3 days from the date of Activation. You acknowledge that we do not warrant that the functions of the AUTOi App will function with any specific hardware or software or that the provision of the AUTOi Services will be uninterrupted or completely error or bug free and that it is the nature of a remote service that there may be periods when the services are interrupted, slow or unavailable due to an error or failure in the internet or the cloud service and we disclaim all liability in respect of such interruptions service or unavailability. We will use reasonable efforts to ensure that the AUTOi App does not contain any known viruses at the time it is made available for download.
4.2 These exclusions apply to the fullest extent permitted by law, but you acknowledge that we do not exclude or limit our liability for death or personal injury caused by our negligence, or any fraud or misrepresentation in connection with or under this Agreement or the provision of the services. In the even that we fail to meet any of our limited warranties, you are responsible for informing us promptly of the error, and we will, at our option either return the price paid to you for the services that are affected or repair or replace the affected App free of charge.
4.3 Save as set out in this Agreement we provide no other express or implied warranties or conditions. We fully disclaim any implied representations, warranties or conditions.
5. Limitation of Liability
5.1 You acknowledge that we will not be liable for any of the following losses which may arise by reason of any breach of the terms of this Agreement or (to the extent that they have not been excluded any implied warranties, conditions or any other terms, representations or any duty of any kind imposed on us by operation of law:
5.1.1 any loss of anticipated profits of future business;
5.1.2 damage to reputation or goodwill;
5.1.3 damages, costs or expenses payable by you to any third party;
5.1.4 loss of any contract; and/or
5.1.5 any other special indirect or consequential loss of any kind.
5.2 Except as provided in this Agreement, and subject to the provision above, our total liability to you in respect of all injury, loss, damage, cost, expense and other matter arising under this Agreement shall be limited to the reasonable cost of remedying any defect or error in the AUTOi Services, or matter constituting such breach, and our total aggregate liability to you will not exceed the greater of the total amount paid or payable by you to us under this Agreement in the 12 months preceding the event giving rise to the liability.
6. Proprietary Rights
6.1 You acknowledge that all intellectual property rights in the AUTOi App, the AUTOi Services and all documentation (including without limitation any enhancements, upgrades or modifications) are and shall remain the property of us and/or our licensors.
6.2 You agree to notify us immediately if you become aware of any unauthorised use of the whole or any part of the AUTOi Services by any person.
6.3 You agree to allow us to check your use of the AUTOi Services at all reasonable times and for that purpose, you agree that we shall be entitled to enter any of your premises on reasonable notice to conduct any reasonable audit or inspections they require.
6.4 You agree to defend us and our affiliates against any claims made by a third party that any Customer Data or any third party software you use or combine as part of your access to the AUTOi Services, infringes any third parties patent, copyright, trademark or other intellectual property of that third party or that is related to your use of the AUTOi Services in breach of the terms of this Agreement.
6.5 We will indemnity you against any claim that your normal use of the AUTOi App or the AUTOi Service infringes the copyright of a third party, provided that you:
6.5.1 give us immediate and complete control of the claim;
6.5.2 you do not do any act, or make any omission to prejudice or defence of the claim;
6.5.3 provide us with all reasonable assistance to defence the claim;
6.5.4 the claim does to arise as a result of your use of the AUTOi App or the AUTOi Services with any other equipment not approved by us;
6.5.5 the claim does not arise as a result of any negligence, misconduct or breach of this Agreement;
6.5.6 the claim does not arise as a result of our acting on your instructions;
6.5.7 you have only used the AUTOi Services and AUTOi App in a manner authorised by this Agreement.
You must fully and effectively indemnify and hold us harmless against all damages, costs, claims and liabilities and any other sums incurred arising out of a third party claim or threat of claim against us, arising out of your use of the Services, or any loss, injury or damage in any way connected with a breach by you of any of your warranties or obligations under this Agreement.
We will provide training where specified in the AUTOi Service Term Sheet in the use of the AUTOi App. You may request additional training from time to time, which we will provide in accordance with our standard scale of charges. You are responsible for ensuring that any person using the AUTOi Services has received appropriate training.
9.1 We may terminate this Agreement immediately on giving notice in writing to you if you breach any obligation of confidentiality under this Agreement or commit any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from us, to remedy the breach.
9.2 Either party may terminate the Agreement immediately on giving notice in writing if the other party shall have a receiver or administrator appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if it shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business
9.3 We may terminate this Agreement on giving 30 days notice in writing at any time
9.4 You may terminate this Agreement at any time during the initial trial period, and following the end of the trial period at any time by giving not less than 30 calendar days notice at the end of your contracted period.
9.5 Save as expressly provided in this clause 9, the Agreement may not be terminated
9.6 On termination of this Agreement, you must destroy all copies of the AUTOi App, the AUTOi Services and any documentation that we have provided to you, and at out request, certify in writing that they have been destroyed. We will allow you a reasonable period of time to retrieve any Customer Data stored within the AUTOi Services before we delete such Customer Data.
9.7 Termination of this Agreement will not affect any accrued rights or liabilities of either party.
9.8 Any termination assistance provided by us to you to support your transition to an alternative supplier of similar services to the AUTOi Services or inhouse will be charged at our standard rates.
10. Force Majeure
10.1 In this Agreement, "force majeure" will mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
10.2 If either party is prevented or delayed in the performance of any of its obligations under this Agreement by force majeure, provided that that party serves written notice on the other explaining the nature of the force majeure event and effect on performance and uses all reasonable endeavours to bring the force majeure event to a close, that party will have no liability in respect of the performance of such of its obligations as are affected by the force majeure.
11.1 You agree, and will procure that your employees, agents and contractors, treat as confidential and keep secret all information contained or embodied within the AUTOi Services and the AUTOi App and other documentation provided by us under or in connection with this Agreement.
11.2 Each party agrees and undertakes that during the term of this Agreement it shall and shall procure that its employees, agents and contractors shall keep confidential all and will not use for its own purposes without the prior written consent of the other nor disclose to any third party any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party.
11.3 You acknowledge that the obligations of confidentiality contained in the previous clause do not apply to the extent that such information is public knowledge or is already known to such party at the time of disclosure or subsequently becomes public knowledge other than by reason of a breach of this Agreement.
11.4 You acknowledge that we have the right to publicise your use of the AUTOi App and the AUTOi Services, you acknowledge that the provisions of this clause will remain in full force and effect notwithstanding any termination of the Agreement.
12. General Terms
12.1 You acknowledge that you will not be entitled to assign, sub-licence or otherwise transfer this Agreement or the licence granted herein whether in whole or in part.
12.2 You warrant and agree that you have not been induced to enter into this Agreement by any prior representations whether oral or in writing except those specifically contained within this Agreement and you agree to waive any claim for breach of any such representation which is not so specifically identified herein.
12.3 You acknowledge that no or delay by either party in enforcing the provisions of this Agreement will restrict or prejudice our rights or will operate to waive any of our rights in respect of any subsequent breach by you.
12.4 If at any time any provision of this Agreement is found by a court or competent authority to be void or unenforceable for whatever reason, such provision, or part thereof, shall be deemed to be deleted from this Agreement, and the remainder of the Agreement shall continue in full force and effect.
12.5 This Agreement supersedes all prior agreements, arrangements and understandings between us and constitutes the entire Agreement between us relating to the AUTOi App and the AUTOi System. No addition to or modification of the provisions of this Agreement will be binding unless made in writing and signed by a authorised representative of each of the parties.
12.6 Notices that are required to be given under this Agreement must be made in writing, and sent to the address of the recipient set out in this Agreement. Any such notice may be delivered personally or by first class pre-paid letter and will be deemed to be served if by hand on delivery, or if by first class post 48 hours after posting.
12.7 Headings referred to in this Agreement are for ease of reference only, and shall not affect the interpretation or construction of this Agreement in any way. A reference to a clause is a reference to a clause in this Agreement unless otherwise stated.
12.8 This Agreement will be governed by and construed in accordance with the laws in England and Wales and any disputes arising between the parties shall be determined by the English courts.
13.1 Should you wish to advertise Goods for sale on the Website you agree to the following:
a) You agree that you are the owner or have the right (licence) to use the pictures, logos and text used to advertise the Goods and that in uploading this intellectual property to our website you are providing us with a licence to use the same;
b) You are the owner of the Goods or have authority from the owner to sell the Goods in accordance with section 12 of the Sale of Goods Act 1979;
c) You agree to sell the vehicle should it reach or best its reserve price;
d) You agree that the description of the Goods uploaded by you to the Website accurately describes the Goods; furthermore you agree to indemnify AUTOi against all claims, losses, damages in respect of the description of the Goods.
14. Bidding, Buying & Collection
14.1 Full instructions on how to bid for the Goods and details of the expiry date and time for each listing will be posted on the Website but all bids and transactions shall be subject to these Terms.
14.2 A bid may not be withdrawn after it is placed and is valid for 7 days
14.3 No person may submit a bid for the Goods which is less than the sum specified from time to time by AUTOi in relation to those Goods.
14.4 To be the winning bid, the bid must be the highest bid when bidding in an auction or at the Consumers disrcetion on a Wizzle listing and must meet any other conditions which may be specific to each listing. If additional conditions apply, they will be detailed alongside the description of the Goods prior to the commencement of each listing.
14.5 When you bid on the Goods you are agreeing to purchase those Goods for the price you bid, in the event that you are the highest Bidder. Once a bid has been accepted you are legally bound to complete the transaction and pay the Purchase Price subject to the vehicle being accuratly described.
14.6 The successful Bidder must pay for the Goods within 72 hours, payment shall be made directly to the Seller.
14.7 Title to the Goods shall pass when the successful Bidder pays for the Goods.
14.8 The Seller reserves the right to end a listing at anytime without prior notification to the Bidders
14.9 If you are the highest bidder and the reserve price is not met the Seller may contact you to accept or discuss your bid for the Goods.
14.11 AUTOi reserves the right to refuse or remove bids and/or suspend, cancel or extend listings at its absolute discretion, including where there are or have been obvious typographical or arithmetical inaccuracies.
14.12 If your bid is successful, the Seller will confirm by email notification.
14.13 AUTOi is not obliged to assist in any disputes between Seller and Bidders.
14.14 If purchasing a vehicle from a Consumer via Wizzle then all cars must be collected from the Consumer.
15.1 No agency, partnership, joint venture or employee/employer relationship is intended or created by these Terms.
15.2 You agree that AUTOi provides an listing website and shall in no way be party to the contract for the sale or purchase of the Goods by any member and furthermore, AUTOi shall under no circumstances be liable for any representation made on the Website.
16.1 In this agreement the following words and phrases have the following meanings
"AUTOi App" means the software application known as AUTOi app that enables vehicle appraisal data to be captured and recorded centrally; "AUTOi Service" the services providing the storage and retrieval of information to populate the AUTOi App; "Customer Data" means any and all data input by you either into the AUTOi App, or uploaded into the AUTOi Services under the user name and passwords given to you to use the AUTOi Service; "Service Fees" the monthly subscription fees to be paid by you to access the AUTOi Service as set out in the AUTOi Service Term Sheet.
AUTOI APP LICENCE
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THIS APP:
This licence agreement (Licence) is a legal agreement between you (you) and AUTOD2 Limited, 76 Shelley Road East, Bournemouth, Dorset, BH7 6HB, Company No 07698013 (us or we) for your use of the AUTOi App (the App) and all electronic documentation available from our website in connection with the App (Documentation).
We licence use of the App and Document to you on the basis of this Licence. We do not sell the App or Documentation to you, and we, or our licensors remain the owners of the App and Documentation at all times.
• BY INSTALLING THE APP YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY.
• IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE WILL NOT LICENSE THE APP AND DOCUMENTATION TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION PROCESS NOW.
1. Grant and scope of licence
1.1 In consideration of you agreeing to abide by the terms of this Licence, We hereby grant to you a non-exclusive, non-transferable licence to use the App and the Documentation on the terms of this Licence.
1.2 You may install and use the App for your internal business purposes only on one CPU if the Licence is a single-user licence or if the Licence is a multi-user or network licence, for the number of concurrent users agreed between you and us and make reasonable use of any Documentation we provide.
1.3 You may make a single copy of the App for back-up purposes only.
1.4 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
1.4.1 not to copy the App or Documentation except where such copying is incidental to normal use of the App or where it is necessary for the purpose of back-up or operational security;
1.4.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App or Documentation;
1.4.3 not to make alterations to, or modifications of, the whole or any part of the App
1.4.4 not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the App nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter- operability of the App with another software program, and provided that the information obtained by you during such activities:
18.104.22.168 is used only for the purpose of achieving inter-operability of the App with another software program;
22.214.171.124 is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
126.96.36.199 is not used to create any software which is substantially similar to the App;
1.4.5 to keep all copies of the App secure and to maintain accurate and up-to-date records of the number and locations of all copies of the App;
1.4.6 to include our copyright notice on all entire and partial copies of the App in any form;
1.4.7 not to provide, or otherwise make available, the App in any form to any person other than your employees without our prior written consent
2. Intellectual property rights
2.1 You acknowledge that all intellectual property rights in the App and the Documentation throughout the world belong tous or our licensors and that you have no rights in, or to, the App or the Documentation other than the right to use them inaccordance with the terms of this Licence.
2.2 You acknowledge that you have no right to have access to the App in source code form or in unlocked coding or withcomments.
3. Limited warranty
3.1 The App is provided on an as is basis without any warranty that it will operate other that in accordance with thefunctionality described within the Documentation for a period of 30 days from download.
3.2 If, you notify us in writing of any defect or fault in the App as a result of which it fails to perform substantially in accordance with the Documentation, we will replace the App.
4. Limitation of liability if you are a business user
4.1 You acknowledge that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App as described in the Documentation meet your requirements.
4.2 If you are a business customer, we only supply the App and Documentation for internal use by your business, and youagree not to use the App or Documentation for any re-sale purposes.
4.3 We shall not under any circumstances whatever be liable to you, whether in contract, tort (including negligence),breach of statutory duty, or otherwise, arising under or in connection with the Licence for loss of profits, sales, business, or revenue, business interruption, loss of anticipated savings, loss or corruption of data or information, loss of business opportunity, goodwill or reputation, or any indirect or consequential loss or damage.
4.4 Other than the losses set out in condition 4.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances belimited to a sum equal to £50. This maximum cap does not apply to condition 4.5.
4.5 Nothing in this Licence shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation or any other liability that cannot be excluded or limited by English law.
4.6 This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the App and Documentation. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the App and Documentation which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
5.1 We may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.
5.2 Upon termination for any reason all rights granted to you under this Licence shall cease, and you must cease all activities authorised by this Licence. You must immediately delete or remove the App from all computer equipment in your possession and immediately destroy or return to us (at our option) all copies of the App then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
6. Other important terms
6.1 We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights or our obligations under this Licence.
6.2 You may only transfer your rights or your obligations under this Licence to another person if we agree in writing.
6.3 This Licence constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of the us which is not set out in this Licence.
6.4 If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
6.5 Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
6.6 If you are a business customer, this Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales.