Published date: 12 November 2018
These Terms of Service (“Terms”) set out the terms on which SalesMaster UK Limited is willing to provide services to You. SalesMaster UK Limited is referred to as "SalesMaster", "We" or "Our" in these Terms.
1.1 Please read these Terms carefully as they form part of a contract between You and Us and govern use of and access to the Service(s) and Platform by You, Your Affiliates, Users and End-Customers (the “Contract”). The following documents also form part of the Contract:
1.1.1 Our Support Services Addendum that sets out the standard requirements for using Our services and the related standards we are committed to delivering;
1.1.2 the document titled “Commercial Terms” that sets out details of your chosen Subscription Plan and any special terms agreed between us; and
1.2 By accessing or using the Service(s) or Platform, or authorising or permitting any User or End-Customer to access or use the Service(s) or Platform, You agree to be bound by these Terms.
1.3 If You are entering into the Contract on behalf of a company, organisation or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Us that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms, “You”, “Your” or related capitalised terms used in these Terms shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not access or use the Service(s) or Platform.
1.4 You, as an individual, must be 18 years or older to access or use the Platform and the Service(s).
2.1 Using Our Subscription Service(s): Subject to Your compliance with these Terms and solely during the Subscription Term, You have the limited, non-exclusive, and revocable right to access and use the Subscription Service(s) for Your internal business purposes. You shall be responsible for use of the Subscription Service(s) through Your Account by any third parties. You may subscribe to one or more of the Subscription Service(s). They may be subject to separate and distinct Service Plans, the terms of which will form part of the Contract.
2.2 Using our APIs: Our APIs must be used according to the API Documentation.
2.3 Using our Mobile Applications: Subject to Your compliance with the Terms and solely during the Subscription Term, You have the limited, non-exclusive, non-transferable, and revocable right to download, install and use the Mobile Applications to access and use the Subscription Service(s).
3.1 Account Limitations: Subject to any limitation on the number of individual Users available under the Service Plan to which You subscribed, access and use of the Subscription Service(s) is restricted to the specified number of individual Users permitted under Your subscription to the Subscription Service(s).
3.2 User Logins: Each User shall be identified using unique login information such as usernames and passwords (“User Login”strong>) and such User Login shall be used only by one individual. You are responsible for the confidentiality of Your Data and User Login. You should, therefore, not share Your User Login with any third parties. In any event, unless You notify Us of any unauthorised use or suspicious activity in Your Account, You are responsible for all activities that occur under Your Account. We will not be liable for any damage or loss that may result from Your failure to protect Your login information, including Your password. We have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms.
3.3 Compliance: Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Service(s) to store and transmit Your Data is compliant with all applicable laws and regulations.
3.4 Accuracy & Sufficiency: You maintain all responsibility for determining whether the Service(s) or the information generated by it is accurate or sufficient for Your purposes.
3.5 What You may not do: You agree not to:
3.5.1 license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise commercially exploit or make the Service(s) available to any third party, other than Users and End-Customers in furtherance of Your internal business purposes as expressly permitted by these Terms;
3.5.2 use the Service(s) to Process data on behalf of any third party other than Your Users, End-Customers and Franchise Partners;
3.5.3 modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorised access to the Service(s) or related systems or networks;
3.5.4 falsely imply any sponsorship or association with Us;
3.5.5 use the Service(s) in any unlawful manner, including but not limited to violation of any person’s privacy rights;
3.5.6 use the Service(s) to send unsolicited communications junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages;
3.5.7 use the Service(s) to store or transmit any content that infringes upon any person’s intellectual property rights;
3.5.8 use the Service(s) in any manner that interferes with or disrupts the integrity or performance of the Service(s) and its components;
3.5.9 use the Service(s) to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene, offensive, or discriminatory;
3.5.10 use the Service(s) to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software;
3.5.11 establish a link to Our Platform in such a way as to suggest any form of association, approval or endorsement on Our part where none exists;
3.5.12 use the Service(s) for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including email) in violation of applicable law;
3.5.13 try to use, or use the Service(s) in violation of these Terms; or
3.5.14 attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of the Software, unless it permissible by law, in which case You undertake to:
(i) first make a prior written statement to Us identifying the activity and stating why You believe it to be permissible; and
(ii) refrain from commencing any such activity until We shall have had a reasonable opportunity to consider and thereafter give a response to You in respect of each statement.
3.6 You shall be responsible for any loss of data or attempted or actual access or use of the Service(s) that is committed or caused by You, Your Users, Affiliates and/or End-Customers.
3.7 If We inform You that a specified activity or purpose is prohibited with respect to the Service(s), You will ensure that You immediately cease use of the Service(s) for such prohibited activity or purpose.
3.8 You agree to provide Us promptly with any information which We may reasonably require from time to time to enable Us to proceed with the performance of the Services including data feeds in the agreed format from the manufacturer, dealer management system or third party as appropriate and to meet the Minimum Communication Requirements.
3.9 You shall be responsible, where relevant, for the accuracy of data feeds from manufacturers, new and used vehicle prices, vehicle tax rates and other statutory or other information required by Us to adequately process Your data.
3.10 The Platform includes the ability to create and download your own reports and also generates content based on the data held in the Platform. You shall be responsible for ensuring that all documentation (system- or user- generated) are accurate. We do not assume responsibility for the accuracy of the data held in the system (whether manually entered or entered via external feeds), or generated by it.
4.1 You are responsible for procuring and maintaining the network connections that connect You to the Service(s). Your access to and use of the Service(s) may require You to use or maintain specific browser software, security certifications and other procedures that supports protocols used by the Service(s).
4.2 You may not be able to access or use the Service(s):
4.2.1 during planned downtime for upgrades and maintenance to the Service(s) (of which We will use commercially reasonable efforts to notify You in advance through Our Service(s)) (“Planned Downtime”); or
4.2.2 during any unavailability caused by circumstances beyond Our reasonable control, including the events set out in clause 22.
4.3 We will use commercially reasonable efforts to schedule Planned Downtime for weekends and other off-peak hours.
5.1 We may update the Service(s) from time to time and You may receive notifications of such upgrades, enhancements or updates (“Updates”). Any new or modified features added to or augmenting or otherwise modifying the Service(s) or other updates, modifications or enhancements to the Service(s) are also subject to these Terms and We reserve the right to deploy Updates at any time.
6.1 Our Rights: All Intellectual Property Rights in the Services, the Platform (including the SalesMaster Application and Mobile Applications), Documentation (and any modifications to them) belong and shall belong to Us. You shall have no rights in or to them other than the right to use them in accordance with these Terms. Nothing contained in these Terms shall be construed as an assignment or transfer of any Intellectual Property Rights.
6.2 Commercial Purposes: You must not use any part of the content on Our Platform (excluding your own uploaded content) for commercial purposes without obtaining a named user account to do so from Us.
6.3 Your content: We claim no intellectual property rights over the content You upload or provide to the Service(s). You allow Us to use such Content as required to provide the Services.
6.4 Your feedback: We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service(s) or Platform or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You.
6.5 Your trademark: Unless You notify Us otherwise by an email to email@example.com, You agree to grant Us a royalty-free, worldwide, transferable license to use Your trademark or logo to identify You as Our customer on Our Platform and/or marketing collateral.
6.6 Our Marks: Our product and service names, and logos used or displayed on the Service(s) or Platform are Our registered or unregistered trademarks (collectively, “Marks”), and You may only use such Marks to identify You as a user of the Service(s) You have subscribed to.
7.1 Third Party Services: Our Service(s) may use, or make available to You, services that are developed, provided and maintained by third parties. These services are integrated into some of the Service(s) and are provided to You as an option that You may enable and use as a part of some of the Service(s). We are not responsible for the reliability or performance of any such services, or for any changes relating to them. Any links to third party websites, content or resources are governed by the terms and privacy policies of those third party providers and You agree that We are not responsible for Your access or use of these Third Party Links.
7.2 Support Services: As part of your Subscription Service, we will provide you with maintenance and support on the terms set out in the Annex to these Terms. If You use Our support service, You are agreeing that Your name and email address will be recorded in Our third party helpdesk software. Calls may be recorded for training and monitoring purposes.
7.3 Data Analytics Services: If You use the data analytics services, You understand and agree that the analysis presented to You is based on the accuracy of Your Data. It is provided “as is”, without warranty as to its fitness for any purpose, reliability, accuracy or completeness. We shall not be liable to You for Your use or inability to use or interpret the analysis.
7.4 Professional Services: If You have purchased Professional Services from Us, we will provide them on the terms set out in the Commercial Terms.
8.1 Charges: All Charges associated with Your Account and/or Services are due in full and payable within thirty (30) days after Our invoice date unless otherwise stated in writing. Subscription Charges are based on the Service Plans You choose and are payable in full until You terminate the Contract in accordance with clause 9.
8.2 Renewal of Subscription: Your Subscription Service(s) will remain in force for the initial Subscription Term set out in Your Commercial Terms. After expiry of the initial Subscription Term, Your Subscription Service(s) will continue until either of us terminates it by giving the Required Notice Period at any time. Unless otherwise agreed in writing, after your initial Subscription Term We will charge you Our then applicable standard Subscription Charges for the Service Plan to which You have subscribed. You acknowledge and agree that, unless You terminate the Contract in accordance with clause 9 or 10, You will be charged automatically for the applicable Subscription Charges.
8.3 Price changes: After the expiry of the initial Subscription Term, We may increase Our Subscription Charges from time to time. If We do so, We will notify You and allow You sufficient time to terminate Your Contract in accordance with clause 9, should You wish to do so. If You do not exercise this right within the time period stated in Our notification, We will start charging You the new Subscription Charge.
8.4 Payment Processing: We may use a third party service provider to manage payment processing; provided, that such service provider is not permitted to store, retain or use Your payment account information except to process Your payment information for Us. You must notify Us of any change in Your payment information, by emailing Us at firstname.lastname@example.org
8.5 Refunds: Unless otherwise specified in these Terms or a Service Plan, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Service(s) by You.
8.6 Late Payments/Non-payment of Charges: We will notify You if We do not receive payment towards the Charges by the due date for Your Account. If We do not receive payment, in addition to Our right to other remedies available under law, We may:
8.6.1 charge an interest for late payment at 5% per annum above the base rate for the time being of Barclays Bank PLC with interest accruing on a daily basis and be compounded quarterly; and/or
8.6.2 suspend Your access to and use of the Service(s) until We receive Your payment towards the Charges as specified herein; and/or;
8.6.3 terminate Your subscription.
8.7 Upgrades and Downgrades: You may upgrade or downgrade within a Service Plan or between two Service Plans. You understand that downgrading may cause loss of content, features, or capacity of the Service(s) as available to You before downgrading Your Account. We will not be liable for such loss. When You upgrade or downgrade, the new Subscription Charges become immediately applicable. Upon upgrade, the new Subscription Charges would be charged on pro-rated basis and You will be charged automatically. Subsequent payment instalments will be charged according to the new Subscription Charges. When You downgrade, We do not refund any Subscription Charges paid in advance.
8.8 VAT: All Charges are exclusive of Value Added Tax (VAT) which shall be paid by You at the rate and in the manner for the time being prescribed by law.
9.1 You may end your Subscription at any time by emailing email@example.com and telling us that you wish to terminate Your Contract with effect from expiry of the Required Notice Period. Your Subscription will then terminate once the Required Notice Period has expired.
10.1 Either of us may without prejudice to its other rights or remedies terminate the Contract at any time on the specified written notice to the other, or immediately and with immediate notice if the other:
10.1.1 commits a material breach of its obligations under these terms and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so; or
10.1.2 is in persistent breach of any of the terms of these Terms; or
10.1.3 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (other than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
10.2 We may also terminate the Contract at any time if You:
10.2.1 undergoes a direct or indirect change of Control which does not result in control passing to a company that, immediately prior to the change in question, was an Affiliate of the Customer; or
10.2.2 sell all of Your assets or are merged or re-organised in circumstances where You are not the surviving entity; or
10.2.3 dispute the ownership or validity of Our Intellectual Property Rights.
11.1 We may suspend access to Your Account and Services if:
11.1.1 You are late with the payment of any Charges; and/or
11.1.2 We have a right to terminate the Contract in accordance with clause 10; and/or
11.1.3 You are in violation of these Terms.
11.2 We shall not be liable to You or any other third party for suspension or termination of Your Account or access to and use the Service(s), if such suspension or termination is in accordance with these Terms.
12.1 Account Closure: If either of us terminates the Contract, your Account will be closed and your Subscription ends.
12.2 Data Export: We strongly recommend that You export all Your Data before Your Subscription ends. Following Termination we will hold your data for 30 days to provide you time to export it. After 30 days from the date your Subscription has ended, we will delete all the data in Your Account as we no longer have a legal reason for holding it. Your Data cannot be recovered once it is deleted.
12.3 Charges: If You terminate the Contract prior to the end of Your then-effective Subscription Term or if We effect such termination, in addition to other amounts You may owe Us, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term, unless waived by Us in writing. This amount will not be payable by You in the event You terminate Your subscription to the Service(s) for breach by Us in accordance with clause 10.1.1.
12.4 Rights: From the termination date, all rights granted to You under these Terms shall cease. The termination of these Terms (howsoever occasioned) shall not affect:
12.4.1 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination; or
12.4.2 the coming into force or the continuance in force of any provision of these Terms which is expressly, or by implication, intended to come into force or continue in force on or after that termination.
13.1 Each of us undertakes that it shall not at any time during this Agreement and for a period of 5 years after termination disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its group, including but not limited to information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers ("Confidential Information"), except as permitted by clause 13.2.
13.2 Each of us may disclose the other party’s Confidential Information:
13.2.1 to its employees, officers, agents, consultants or subcontractors ("Representatives") who need to know such information for the purposes of carrying out the party’s obligations under this Agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 13 as though they were a party to this Agreement. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; or
13.2.2 if the Confidential Information enters the public domain without a breach of this clause by the other party; or
13.2.3 if the Confidential Information is independently developed by it without reference to the Confidential Information of the other party; or
13.2.4 as required by law, a court of competent jurisdiction, any governmental, regulatory authority or the rules of any generally recognised stock exchange.
13.3 Each of us reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party or to be implied from this Agreement.
14.2 The subject-matter, duration of the processing, nature and purpose of processing, the type of Personal Data and the categories of data subjects and the obligations and rights of You are set out below:
"Subject Matter" - The provision of the Subscription Service under these Terms
"Duration" - The duration of the Subscription Term
"Nature and purpose of processing" - Personal Data shall be processed for the purpose of providing the Services under the Contract
"Type of Personal Data " - Contact details of You and Users; and/or Contact details of End-Customers entered or imported into the application; and/or Vehicle data registered to End-Customers; and/or Financial information relating to a vehicle quote and/or order; and/or Sales information pertaining to an enquiry of a vehicle or vehicles; and/or Information pertaining to a demonstration of a vehicle; and/or Information pertaining to how You and your Users use the Services, including data on sales volumes per User; and/or Whether an End-Customer has placed an order under the Motability Scheme.
"Categories of data subjects" - You, Users and End-Customers
"Obligations and rights of You" - As set out in these Terms
14.3 You agree that We, and the service providers We utilise to assist in providing the Service(s) to You, shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service(s), including, without limitation, in response to Your support requests.
14.4 Any third party service providers We utilise will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service(s).
14.5 Our Group Companies may access or disclose information about You, Your Account, Users or End-Customers, including Your Data, in order to
14.5.1 comply with the law or respond to lawful requests or legal process;
14.5.2 protect Our Group Companies’ or Our customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service(s); and/or
14.5.2 protect Our Group Companies’ or Our customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service(s); and/or
14.5.3 act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
14.6 At Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.
14.7 We agree to ensure that appropriate operational and technical measures are in place to safeguard against any unauthorised access, loss, destruction, theft, use or disclosure of Your Personal Data and, having regard to the state of technological development and the cost of implementing any measures, the measures must ensure a level of security appropriate to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction or damage of such Personal Data.
14.8 We shall (subject to any law or regulation) notify You:
14.8.1 promptly upon receiving any notice or communication from the Information Commissioner’s Office relating directly to the Personal Data or processing of Personal Data relating to Your Account; and
14.8.2 within 48 hours of becoming aware of a breach relating to Your Personal Data, and shall provide to You a sufficient amount of information to allow You to submit a report to Your national supervisory authority as required by Article 33 of the GDPR (Notification of a personal data breach to the supervisory authority) and, if necessary, to notify the affected data subjects in accordance with Article 34 of the GDPR (Communication of a personal data security breach to the data subject). Where You require further support and information from Us regarding a data security breach, We will comply with Our obligations in this clause in good time before the end of the 72 hour reporting period.
14.9 For the purposes of Article 28 of the GDPR (Processor), We agree that:
14.9.1 We shall process Your Personal Data only in accordance with the documented instructions from You;
14.9.2 all persons authorised by Us to process Personal Data have entered into a binding contractual agreement with Us to ensure that the Personal Data remains confidential at all times or subject to an appropriate statutory duty of confidentiality;
14.9.3 We shall take all measures required pursuant to Article 28(2) and Article 28(4) of the GDPR for engaging another processor;
14.9.4 We shall assist You in ensuring compliance with Your obligations pursuant to Articles 32 of the GDPR (Security of Processing) to Article 36 of the GDPR (Prior Consultation) taking into account the nature of processing and the information available to Us;
14.9.5 We shall retain Personal Data of End-Customers in accordance with Your chosen data retention options that are available for selection through the Subscription Service;
14.9.6 at Your option, We shall delete or return all the Personal Data to You after closure of your Account, and shall delete existing copies unless Data Protection Legislation requires storage of the applicable Personal Data; and
14.9.7 We shall make available to You all information necessary to demonstrate compliance with the obligations laid down in this clause and allow for and contribute to audits, including inspections, conducted by You or another auditor mandated by You. We shall immediately inform You if, in Our opinion, any of Your instructions infringe Data Protection Legislation.
14.9.8 If a data subject requests from Us access to, rectification or erasure of their Personal Data held in Your Account, restriction of processing concerning the data subject, data portability or if the data subject objects to processing, We shall forward the request to You without undue delay. You shall handle the request as the data controller for the data held in your Account. If necessary, We are entitled to inform the data subject that the request has been referred to You. We will, insofar as is possible, taking account of the nature of the processing, assist You with handling requests from data subjects and/or requests from the supervisory authority.
14.11 We may obtain and aggregate technical and other data about Your use of the Service(s) that is non-personally identifiable with respect to You (“Aggregated Anonymous Data”), and We may use the Aggregated Anonymous Data to improve, support and operate the Service(s). For clarity, You are not identified as the source of any Aggregated Anonymous Data and no Personal Data is collected as a part of Aggregate Anonymous Data.
14.12 Where You or your Users, Affiliates or End-Customers upload or otherwise provide data to the Platform, you warrant to Us that you have the right to do so and that we may use such data as envisaged by Your Contract.
15.1.1 You are in violation of these Terms;
15.1.2 A specific activity or purpose is prohibited with respect to the Service(s), so that You immediately cease use of the Service(s) for such prohibited activity or purpose; or
15.1.3 You maintain an exceptionally high number of Users, an unusually high monthly ticket ratio per Users, an unusually high level of open tickets or other excessive stress on the Service(s); or
15.1.4 there are key changes or updates to the Services and Platform that affect You;
15.1.5 if the Service experiences downtime.
16.1 We warrant that:
16.1.1 the Subscription Service will conform to the Documentation in all material respects; and
16.1.2 We will provide the Services using reasonable care and skill.
16.2 Other than expressly set out in these Terms, We disclaim any and all conditions, representations, warranties or other terms, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non infringement to the fullest extent permitted by applicable law.
16.3 You acknowledge that we do not warrant that the Service(s) or Platform will be uninterrupted, timely, secure or error-free and you further acknowledge that we do not warrant that the access to the Service(s), which is provided over internet and various telecommunications networks, all of which are beyond our control, will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software.
16.4 The content on our Platform is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Platform. No information or advice obtained by you from us or through the Service(s) or Platform shall create any warranty not expressly stated in these terms.
17.1 Nothing in this Agreement limits or excludes Our liability for:
17.1.1 death or personal injury caused by Our negligence; or
17.1.2 fraud or fraudulent misrepresentation.
17.2 Subject to clause 17.1, We shall not be liable to You, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
17.2.1 loss of profits;
17.2.2 loss of sales or business;
17.2.3 loss of agreements or contracts;
17.2.4 loss of anticipated savings;
17.2.5 loss of or damage to goodwill;
17.2.6 loss of use or corruption of software, data or information; or
17.2.7 any indirect or consequential loss.
17.3 Subject to clauses 17.1 and 17.2, Our total liability to You, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period to the equivalent of 125% of the total charges paid by You in that period.
18.1 IP Claims: If use of the Service(s) by You has become, or in Our opinion is likely to become, the subject of a claim by a third party alleging that the Service(s) You subscribed to infringes or misappropriates such third party’s valid patent, copyright, or trademark (an “IP Claim”), We may at Our own option and expense:
18.1.1 procure for You the right to continue using the Service(s) as set forth in these Terms;
18.1.2 replace or modify the Service(s) to make it non-infringing; or
18.1.3 if the options in clauses 18.1.1 and 18.1.2 are not commercially and reasonably practicable as determined by Us, terminate Your subscription to the Service(s) and repay You, on a pro-rated basis, any Subscription Charges You have previously paid Us for the corresponding unused portion.
18.2 Indemnification by Us: Subject to Your compliance with these Terms, We will indemnify and hold You harmless from and against any IP claim brought against You and We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection with such IP Claim, including the reasonable fees and expenses of the attorneys, provided that:
18.2.1 You promptly notify Us of the threat or notice of such IP Claim;
18.2.2 We have or will have the sole and exclusive control and authority to select defence attorneys, defend and/or settle any such IP Claim; and
18.2.3 You fully cooperate with Us in connection to the defence or settlement of such IP Claim.
We will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by:
(i) compliance with designs, data, instructions or specifications provided by You;
(ii) modification of the Service(s) by anyone other than Us; or
(iii) the combination, operation or use of the Service(s) with other hardware or software where the Service(s) would not by themselves be infringing.
18.3 Sole remedy: Clauses 18.1 and 18.2 state Our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service(s) by You.
18.4 Indemnification by You: You will indemnify and hold Us and Our Group Companies harmless against any claim brought by a third party against Us and/or Our Group Companies, and Our/their respective employees, officers, directors and agents arising from or related to use of the Service(s) by You in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms.
19.1 You shall not, directly or indirectly, assign all or any of Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior written consent.
19.2 We may, without Your consent, assign the Contract with You to any member of Our Group Companies or in connection with any merger or change of Our Control or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfil its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
19.4 Notwithstanding the foregoing, additional terms may apply to certain features or functionality We offer through the Service(s) (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features or functionality and the activation of these features or functionality in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any User authorised in Your Account activates the feature or functionality. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will apply in respect of those functionalities or features.
19.5 From time to time, We may inform You that We will amend parts of Your Contract. We will notify You prior to the effective date of any such amendment to give You enough time to terminate the Contract by giving the Required Notice Period in accordance with clause 9, should You disagree with the proposed change. Your continued use of the Service(s) following the effective date of any such amendment may be relied upon by Us as Your consent to any such amendment.
19.6 Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
20.1 If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non-exercise of any right under these Terms does not constitute a waiver of that right or provision of the Terms.
21.1 The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
22.1 We shall not be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations (other than financial obligations) under this Agreement if such delay or failure result from events, circumstances or causes beyond our reasonable control, including acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.
22.2 For the avoidance of doubt, nothing in this clause shall excuse You from any payment obligations under these Terms. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this Agreement by giving 30 days' written notice to the affected party.
23.1 All notices to be provided by Us to You under these Terms may be delivered in writing (i) by nationally recognised overnight delivery service (“Courier”) or Royal Mail to the contact mailing address provided by You to Us; or (ii) electronic mail to the email address provided for Your Account.
23.2 Our address for a notice to Us in writing by Courier or Royal Mail is: SalesMaster, Denbigh House, Denbigh Road, Milton Keynes, MK1 1DF or to firstname.lastname@example.org by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
24.1 These Terms shall be governed by the laws of England and Wales. Any disputes or claims arising out of or in connection with it or its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.
24.2 No forbearance or delay by You or Us in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
25.1 When used in these Terms with the initial letters capitalised, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of You for access and use of any of the Service(s).
Affiliate: means, with respect to a party, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with such party.
Agent: means an individual authorised to use the Service(s) through Your Account for such Service(s) as an agent and/or administrator as identified through a User Login.
API: means the application programming interfaces developed, enabled by or licensed to Us that permits a User to access certain functionality provided by the Service(s).
API Documentation: means the documentation published online and can be accessed via the salesmaster.co.uk website. Access to the documentation is provided by Us and usually only provided to users provided with an encryption API key.
Charges: means the Subscription Charges and all other charges payable by You for the Service(s) as set out in the Commercial Terms or as otherwise agreed with You.
Commercial Terms: a document that is agreed between us and sets out the Services You have purchased from Us, the agreed Charges, the Required Notice Period and any other special terms We agree with You.
Control: means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise, and the terms “Controlled by” and “under common Control” shall be interpreted accordingly.
Data Controller: means You as the controller of the data held and transmitted to and from the Platform. The definition is to be understood as defined in the General Data Protection Regulation.
Data Processor: means Us as the processor of your data. The definition is to be understood as defined in the General Data Protection Regulation.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service(s) provided or made available by Us to You or Your Users through the Service(s) or otherwise.
End-Customer: means any person or entity other than You or Your Users with whom You interact using the Service(s).
Franchise: means the automotive manufacturer brand(s) that you sell and we display vehicle stock for in the Platform.
General Data Protection Regulation: means the General Data Protection Regulation (“GDPR”) and any future equivalent UK legislation that protects the rights of individuals with regard to the Processing of Personal Data and on the free movement of such data.
Group Companies: means SalesMaster UK Limited together with its Affiliates.
Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, 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.
Minimum Communication Requirements: means the requirements covering the web addresses whitelisted, the minimum browser versions and the hardware required for the Software to operate as set out in the Support Services (Annex).
Mobile Applications: mean the software applications created, developed and owned by Us to enable access and use of the Service(s) through mobile or other handheld devices (such as apps on iOS or Android devices).
Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of You. The definition is to be understood as defined in the General Data Protection Regulation.
Platform: means to the SalesMaster Application, the Mobile Applications, their underlying infrastructure, any data exchanges including available APIs, and the incorporation of third party software used to deliver the functionality.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. The definition is to be understood as defined in the General Data Protection Regulation.
Professional Services: means any training services, consultancy services, agreed configuration of the Platform including individually and collectively, Software, the API and any Documentation and any other services We may agree with You.
Required Notice Period: means the notice period set out in the Commercial Terms and that either of us needs to adhere to when terminating the Contract.
Security Policy: means Our security policy for the Service(s), which is available upon request.
Service(s): means the services purchased by You as identified in the Commercial Terms, for example the Subscription Service and any agreed Professional Services; You may subscribe to one or more of the Service(s). They may be subject to separate and distinct Service Plans.
SalesMaster Application: has the same meaning as “Software”.
Service Plan(s): means the pricing plan(s) and the functionality and services associated therewith for which You subscribe with respect to any User.
Software: means software provided by Us (accessed through the internet) that allows You to use any functionality in connection with the Service(s) and includes the SalesMaster Application and a Mobile Application.
Subscription: means your subscription to the Service(s).
Subscription Charges: means the charges payable by You for the Subscription Service(s) as set out in the Commercial Terms or as otherwise agreed with You.
Subscription Term: means the period during which You have agreed to subscribe to the Service(s) with respect to any individual User.
Us: means SalesMaster UK Ltd., or any of Our successors or assignees. In these Terms, Us may also be referred to as “We”, and “Our”.
User: means those who are designated users within the Service(s), including an Account administrator, Agents and other designated users.
Your Data: means all electronic data, text, messages or other materials submitted to the Service(s) by You through Your Account in connection with Your use of the Service(s), including, without limitation, Personal Data.
25.2 The headings in these Terms do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of these Terms.
25.3 Words in the singular include the plural and in the plural include the singular.
25.4 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, description, definition, phrase or term preceding those terms.