Gumtree
DEALER CENTRAL END-USER LICENSE AGREEMENT
THIS DEALER CENTRAL END-USER LICENSE AGREEMENT (THIS "AGREEMENT") GOVERNS THE USE OF COMPANY'S PROPRIETARY DEALER CENTRAL SOFTWARE, DOCUMENTATION AND RELATED PRODUCTS (COLLECTIVELY, "DEALER CENTRAL"), WHICH ARE AVAILABLE FOR USE BY AUTHORIZED END-USERS ONLINE AT https://dealercentral.autotrader.com.au/. TO BE AN AUTHORIZED END-USER, YOU MAY BE REQUIRED TO BE PARTY TO AND COMPLY WITH A GUMTREE CARS INSERTION ORDER, AND THIS AGREEMENT FORMS PART OF ANY SUCH INSERTION ORDER. ANY BREACH BY YOU OF ANY SUCH INSERTION ORDER, OR OF THE GUMTREE TERMS OF USE, PRIVACY POLICY OR OTHER POLICIES, WHICH ARE HEREBY INCORPORATED BY REFERENCE, SHALL BE DEEMED TO BE A MATERIAL BREACH OF THIS AGREEMENT, AND VICE VERSA.PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING, DOWNLOADING, OR USING DEALER CENTRAL. BY ACCESSING, DOWNLOADING OR USING DEALER CENTRAL, YOU AND ANY ENTITY ON WHOSE BEHALF YOU ARE ACCESSING AND USING DEALER CENTRAL (HEREIN COLLECTIVELY REFERRED TO AS "YOU" OR "END-USER") AGREE THAT THIS AGREEMENT IS A LEGALLY BINDING AND VALID AGREEMENT, YOU AGREE TO ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING THE GUMTREE TERMS OF USE, PRIVACY POLICY AND OTHER POLICIES INCORPORATED HEREIN), AND IF YOU ARE USING DEALER CENTRAL ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU AGREE TO THESE TERMS AND CONDITIONS FOR THAT ENTITY OR ORGANIZATION, AND YOU WARRANT AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MUST NOT ACCESS, DOWNLOAD OR USE DEALER CENTRAL (OR ANY PART THEREOF) AND, AS APPLICABLE, YOU WILL PROMPTLY ADVISE COMPANY THAT YOU WISH TO CANCEL ANY DEALER CENTRAL-RELATED PRODUCT THAT YOU MAY HAVE ORDERED UNDER YOUR INSERTION ORDER WITH COMPANY. THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, AND EXCLUSIVE REMEDIES.
This Agreement is a legal agreement by and between Gumtree AU Pty Ltd. ("Company"), and the End-User, regarding the End-User's use of Dealer Central. This Agreement is effective as of the first date the End-User accesses, downloads, or uses Dealer Central. This Agreement consists of the preceding and following terms and conditions, and unless amended as set forth herein, this Agreement (together with End-User's Insertion Order with Company, as applicable) represents the entire agreement and understanding between Company and the End-User with respect to the matters set forth herein, and shall govern the access to, downloading and use of Dealer Central. Any additional or inconsistent terms provided by the End-User shall not have any legally binding effect on Company.
1. Licence. Subject to the End-User's compliance with the terms and conditions of this Agreement (and with End-User's Insertion Order with Company, as applicable), including without limitation payment of all applicable fees when due, Company, as licensor, grants to the End-User, as licensee, a limited-time, personal, non-assignable, non-exclusive, non-sublicensable, and non-transferable licence to access and use Dealer Central solely in connection with the management of End-User's classifieds listings on www.gumtree.com.au (including the associated mobile website and any application used to access www.gumtree.com.au), in accordance with this Agreement and (as applicable) End-User's Insertion Order with Company. Except for the limited licence rights expressly granted herein, Company and its licensors reserve all rights in and to Dealer Central, and Company reserves all of its rights in other Company intellectual property.
2. Restrictions. The End-User acknowledges and agrees that Dealer Central, and other Company intellectual property, is the property of Company and its licensors and contains their valuable assets and proprietary information. Therefore, the End-User agrees that it will not (and will not permit any other user or third party under its control to): (a) copy, publish, modify, reproduce, transmit, or create derivatives of or otherwise use (except as explicitly permitted in Section 1 above) Dealer Central in any form or media; (b) merge Dealer Central with any other content, data, or information; (c) reverse engineer Dealer Central or otherwise attempt to derive the algorithms, databases, or data structures on which Dealer Central is based; (d) distribute, lease, sell, sublicense, or otherwise transfer Dealer Central or any data (including pricing data) associated with Dealer Central, or use Dealer Central or its data for the benefit of any other user or third party; (e) alter, bypass, circumvent, or remove any electronic or other forms of privacy, access or other protection measures included with Dealer Central; (f) publish or disclose to third parties any evaluation of Dealer Central; (g) alter, obscure, or remove any copyright notice or proprietary legend contained in or on Dealer Central, or (h) create any publicly accessible link to Dealer Central or frame or mirror any content contained on, or accessible from, Dealer Central.
3. Intellectual Property. The End-User acknowledges and agrees that Dealer Central, and other Company proprietary rights, are protected by Australian intellectual property laws, and other international intellectual property laws and treaty provisions. Therefore, the End-User further acknowledges and agrees that, except as expressly provided in this Agreement, no right, title, or interest in Company's intellectual property (including registered and non-registered intellectual property copyrights, trademarks, trade names, service marks, and other proprietary rights), related to its products, software, services, or technology, will be transferred to the End-User, and the End-User may not copy, distribute, or use Dealer Central, or any other Company intellectual property, for any purpose. The End-User agrees that Company will retain all intellectual property and other proprietary right, title, and interest in its existing products, services, software and technology, and will acquire and retain any right, title, and interest in such property and technology developed hereafter. The End-User agrees that it will protect Dealer Central's intellectual property from unauthorized access, disclosure, or use.
4. Confidential Information. The End-User acknowledges and agrees that Dealer Central may contain, or the End-User may otherwise receive from Company, valuable business and financial information, trade secrets, and other confidential and proprietary information of Company or its affiliates, including without limitation information concerning its business, products, services, pricing, technology, computer software, source and object codes, and other confidential and proprietary information (collectively, "Confidential Information"). The Dealer Central software and documentation itself is also Company's "Confidential Information". The End-User agrees that it will maintain the strict confidentiality of Company's Confidential Information and will not disclose or disseminate such information to any other person, company, or third party, except for an employee, agent, or parent or subsidiary corporation having a reasonable need to review the information and who/which has agreed in writing not to disclose, disseminate, or use the information for any other purpose, and to be bound by this Agreement. The End-User agrees that it will protect Company's Confidential Information from unauthorized access, disclosure, or use.
5. Remedies for Infringement or Breach. The End-User acknowledges and agrees that in the event of any infringement or threatened infringement of the Intellectual Property and Confidential Information provisions above, money damages will be insufficient to remedy Company's loss, and Company shall be entitled to any and all equitable relief, specific performance, injunctions, and restraining orders, in addition to any other applicable legal or equitable rights and remedies, in any court of competent jurisdiction.
6. Survival of Intellectual Property and Confidentiality Provisions. The parties agree that the Intellectual Property, Confidential Information, and remedy provisions of Sections 3-5 above shall survive the expiration or termination of this Agreement.
7. End-User Responsibilities. End-User shall be responsible for its actions while using Dealer Central and for of all transmissions made by it, or on its behalf, to or through Dealer Central. End-User agrees:
(a) to abide by all local and international laws and regulations applicable to its use of Dealer Central, including without limitation all laws regarding the transmission of technical data to Dealer Central;
(b) not to upload or distribute, or permit any third party to upload or distribute, in any way, files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of Dealer Central or another's computer;
(c) not to use Dealer Central for any illegal purpose;
(d) not to interfere or disrupt networks connected to Dealer Central;
(e) not to post, promote or transmit through Dealer Central any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature;
(f) not to transmit or post any material that encourages conduct that could constitute a criminal offence or give rise to civil liability; and,
(g) to comply with all applicable regulations, policies and procedures of Company or its affiliates made available to it from time to time.
8. End-User Data.
(a) End-User acknowledges and agrees that Company neither endorses the contents of any End-User communications or data, whether made available directly or indirectly by End-User or any of its partners/contractors, nor assumes any responsibility for any such data, including without limitation any unlawful, threatening, libellous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Company may remove any violating content posted on Dealer Central or transmitted through Dealer Central, with or without notice to End-User.
(b) Company may provide user statistical information drawn from the data, information or material that End-User enters (or causes to be entered) into Dealer Central (collectively, "Customer Data"), such as usage or traffic patterns, to third parties in aggregate form, but such information will not include personally identifying information. When you provide (or cause to be provided) Customer Data to Dealer Central, that Customer Data may be retained and used by Company and its service providers (i) where applicable, as contemplated by End-User's Insertion Order with Company (and any and all Customer Data is hereby deemed to be included as "Data", as such term is used in that Insertion Order), (ii) as contemplated in the Gumtree Terms of Use and Privacy Policy, and (iii) for purposes of operating, hosting and maintaining Dealer Central. As between Company and End-User, End-User is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of any and all Customer Data, and Company assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of Dealer Central to accurately process or to store any Customer Data.
(c) End-User hereby grants Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right and licence (i) to use, copy, make derivative works from, transmit and display the Customer Data in the course of hosting, making available, and maintaining Dealer Central for End-User, and otherwise in the course of displaying the Customer Data as classifieds listings in accordance with, and subject to the terms of, End-User's Insertion Order with Company and/or the Gumtree Terms of Use, and (ii) to otherwise exercise the copyright, publicity, and database rights to the Customer Data.
(d) Company reserves the right to establish a maximum amount of memory or other computer storage End-User may use and a maximum amount of Customer Data that End-User may store, post or transmit on or through the Dealer Central software. Company shall have no liability for any loss of Customer Data, whether caused by End-User or any third-party service provider.
(e) End-User shall be responsible for compliance with all obligations imposed by applicable privacy legislation and regulations including, without limitation, the Privacy Act 1988 (Cth) and the SPAM Act 2003 (Cth), and any implementing or amending legislation as may be enacted from time to time, and End-User shall indemnify, defend and hold Company harmless from and against any third party claims against Company, its affiliates or service providers, resulting from the use and disclosure by Company of personal information consistent with the terms of this Agreement.
(f) Upon expiration or termination of this Agreement, Company may delete and destroy all Customer Data without notice or further liability to End-User.
9. Passwords. In Company's sole discretion, Company shall issue, or shall authorize its third-party administrator to issue, a password to End-User for each individual user authorized to use End-User's Dealer Central account. End-User is responsible for maintaining the confidentiality of all such passwords and for ensuring that each password is used only by the authorized user. End-User is entirely responsible for any and all activities that occur under End-User's account. End-User agrees to immediately notify Company of any unauthorized use of the End-User's account or any other breach of security known to End-User. Company shall have no liability for any loss or damage arising from End-User's failure to comply with these requirements. Company will maintain End-User's passwords as confidential and will not disclose them to third parties.
10. Security. Company may maintain the Dealer Central software at a third-party hosting facility. Company shall ensure the Dealer Central software is subject to commercially reasonable security precautions to prevent unauthorized access to the Dealer Central software. End-User acknowledges that, notwithstanding such security precautions, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Dealer Central software and Customer Data. Accordingly, Company cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over the Internet.
11. Representations and Warranties of End-User. The End-User represents and warrants to Company that (a) the End-User has all right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) the Agreement has been duly authorized and is legal, valid, and binding on the End-User and any entity or organization on whose behalf it is acting; (c) entering into the Agreement and performing the obligations hereunder do not require the approval or consent of any third party or governmental agency; (d) there is no pending or threatened claim, action, or proceeding against the End-User that would impair or affect the performance of its obligations hereunder; (e) the performance of this Agreement will not breach any contractual or other legal duty to any third party; and (f) it has secured all rights necessary to cause the transfer of, or to make available, the Customer Data to Dealer Central for all purposes of this Agreement and (as applicable) End-User's Insertion Order with Company.
12. Indemnification. The End-User shall indemnify, defend, and hold Company harmless from and against any and all third party claims, actions, losses, liabilities, damages, and expenses (including reasonable attorney fees) arising out of or relating to the End-User's breach of any express warranty or representation in this Agreement, breach of any condition or obligation hereunder, breach of any third party agreement, negligence, infringement of the intellectual property, patent, copyright, trademark, or other proprietary right of a third party, or any other violations of law (including without limitation, any violation of the right of privacy or the right of publicity of any person or entity).
13. Disclaimer of Warranties and Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING ANY RIGHTS THAT YOU MAY HAVE UNDER THE AUSTRALIAN CONSUMER LAW, DEALER CENTRAL (INCLUDING FOR GREATER CERTAINTY, THE DEALER CENTRAL SOFTWARE, DOCUMENTATION, AND RELATED PRODUCTS, SERVICES, AND TECHNOLOGY UNDER THIS AGREEMENT) ARE PROVIDED "AS IS," WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, OR OTHER WARRANTY OR REPRESENTATION ARISING BY LAW, STATUTE, TRADE USAGE, OR COURSE OF DEALING. IN ADDITION, COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, RELIABILITY OR LIKELY RESULTS OF USE OF ANY DATA (INCLUDING PRICING DATA) PROVIDED BY COMPANY THROUGH DEALER CENTRAL. END-USER UNDERSTANDS AND AGREES THAT TO THE EXTENT PERMITTED BY LAW, END-USER DOWNLOADS AND/OR USES DEALER CENTRAL AT END USER'S OWN DISCRETION AND RISK. COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER SIMILAR DAMAGES, NOR BE LIABLE FOR ANY BUSINESS LOSS, PROFIT LOSS, REVENUE LOSS, SAVINGS LOSS, CUSTOMER LOSS, LOSS OF USE OR CORRUPTION OF DATA, WHETHER UNDER TORT, CONTRACT, STATUTORY, OR OTHER THEORIES OF RECOVERY, REGARDLESS OF WHETHER COMPANY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS AND EVEN IF ARISING FROM COMPANY'S NEGLIGENCE. IN NO EVENT SHALL COMPANY'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE GREATER OF (A) AMOUNTS ACTUALLY PAID TO COMPANY HEREUNDER IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Notwithstanding the foregoing disclaimer of warranties and limitation of liability, but subject to Section 21 below, in the event that a court of competent jurisdiction determines that applicable state or federal law does not allow the disclaimer of warranties and limitation of liability hereunder, then Company may remedy substantial defects of the Company software or documentation at its sole discretion by either (a) providing an update or replacement of the software or documentation, or (b) requesting return of the software and documentation and cancelling this Agreement.
14. Termination. In the event that the End-User breaches any term or condition of this Agreement, Company shall be entitled to immediately terminate this Agreement and the licence granted hereunder on written notice to the End-User, without prejudice to any other rights or remedies for such breach. On termination or expiration of this Agreement for any reason, all rights granted to the End-User shall immediately cease, and the End-User shall (a) discontinue all use of Dealer Central, (b) return the Dealer Central software and documentation and all other Company Confidential Information to Company, and purge any copies of the software or documentation from computer storage devices in its possession or control, and (c) provide Company with written certification that the End-User has complied with its obligations hereunder. Any expiration or termination of this Agreement shall be without prejudice to any remedies a party may be entitled to hereunder or at law and shall not affect the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such expiration or termination.
15. Captions. The parties agree that the captions and titles contained in this Agreement, including the title of the Agreement, are used solely for purposes of convenience and reference, and they shall not affect, define, or expand the meaning or interpretation of any provision of this Agreement.
16. Successors and Assigns. This Agreement and the rights, duties, and obligations hereunder shall not be assigned, transferred, or delegated by the End-User without the prior written consent of Company. Company may, at any time and at its option, assign or transfer this Agreement to any of its affiliates, or sub-contract to an affiliate any or all of its obligations under the Agreement, without prior consent from End-User. The terms and conditions of this Agreement shall inure to the benefit of and be binding on the respective successors, assigns, and administrators of the parties.
17. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and (a) if to Company, shall be sent through our online contact form under the topic of 'Legal notices or inquiries'; and (b) if to the End-User, shall be sent by registered mail or email to its address or email address on file with Company. Each notice or other communication shall, for purposes of this Agreement, only be deemed effective when delivered by online form.
18. Delays or Omissions. Any delay or omission to exercise any right, power, or remedy accruing to Company or the End-User under this Agreement on any breach or default of the other party shall not impair such right, power, or remedy of the non-defaulting party, nor shall it be construed to be a waiver of any such breach or default; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default. Any approval, consent, or waiver of any kind or character on the part of either party of any provision or condition of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing.
19. Force Majeure. Neither Company nor the End-User shall be liable for any delay or failure to meet its obligations under this Agreement which is due to any circumstances or disaster beyond its control, including without limitation, acts of God or nature, governmental actions, power or network failure, war, riots, civil disturbance, terrorism, fire, flood, storm, or inability to obtain necessary labour, materials, or facilities, as a direct result of such circumstances or disaster.
20. Severability. In the event any provision of this Agreement becomes or is determined by a court of competent jurisdiction or arbitrator to be illegal, invalid, unenforceable, or void, then the provision or portion of such provision, to the extent necessary, shall be severed from the Agreement, and such court or arbitrator shall replace the illegal, invalid, unenforceable, or void provision (or portion thereof) with a legal, valid, and enforceable provision that will achieve, to the fullest extent possible, the same business, economic, and other purposes as the replaced provision. The balance of this Agreement shall be enforceable according to its terms.
21. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia. Each of the parties hereby irrevocably submits to the jurisdiction of the courts of New South Wales, Australia with respect to any matters arising out of this Agreement.
22. Agreement Activation, Term and Amendment. This Agreement shall be activated by End-User first accessing, downloading or using Dealer Central via the internet, and shall continue as long as (i) where applicable, the End-User's Insertion Order with Company remains in full force and effect, and (ii) the End-User continues to access, download or use Dealer Central, unless this Agreement is terminated earlier in accordance with its terms. This Agreement may be amended by Company at any time and from time to time by posting a revised version of these terms and conditions to the Dealer Central start screen at https://dealercentral.autotrader.com.au/, which amendment shall be in force and effect on and after the End User accesses, downloads or uses Dealer Central thereafter.
