Terms of Use - Lead Service API

1. Definitions and Interpretation

1.1 Definitions

In these Terms of Use:

“AUTOGATE” means a system developed and owned by Carsales for managing Leads and Inventory;
“AUTOGATE NETWORK” means the group of Autogate accounts including Autogate Accounts operated or maintained by Carsales;
“AUTOGATE ACCOUNT” means a dedicated file within Autogate where Leads and Inventory are stored until retrieved by a motor vehicle dealer;
“CONFIDENTIAL INFORMATION” means:
1. these Terms of Use,
2. Autogate Account names, specifications and other details provided by Carsales to send Lead Data to an Autogate Account; and
3. all trade secrets, ideas, concepts, know how, knowledge and any other information whether in writing or otherwise, relating to any of that Party’s products, services, systems, affairs, businesses, strategies, customers or disclosed to the other Party by that Party or otherwise obtained by the other Party, in contemplation of, or in connection with these Terms of Use, but excluding any information which:
4. is available in the public domain otherwise as a result of a breach of confidence by any Party;
5. is lawfully received from a third Party;
6. is lawfully in the possession of the other Party at the date of these Terms of Use;
7. is lawfully developed or created after the date of these Terms of Use;
“CORPORATIONS ACT” means the Corporations Act 2001 (Cth);
“DATA” means:
1. Leads; and/or
2. Inventory; and/or
3. such other information as the Parties agree from time to time;
as specified in the Technical Specification;
“DEFAULT EVENT” means the events listed in clause 10.2;
“FORCE MAJEURE” means a circumstance beyond the reasonable control of a Party which results in that Party being unable to observe or perform on time an obligation under these Terms of Use. Such circumstances will include, but will not be limited to:
1. acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disasters;
2. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
3. strikes and embargos; or
4. internet outage, power, water, telecommunications or other utility shortage or outage;
“INSOLVENT” means:
1. is unable to pay its debts as and when they fall due or becomes insolvent or makes an assignment, arrangement or composition for the benefit of its creditors or discontinues or ceases to carry on business in Australia;
2. has a receiver or receiver manager appointed to the whole or any parts of its assets, or if a mortgage in possession or a controller is appointed in respect of any of its assets, or if a resolution is passed for its winding up; or
3. is presented with an application for its winding up or is served with a notice pursuant to Section 459 E of the Corporations Act which pertains to an amount of money owed by it and which is not bona fide in dispute and such notice remains outstanding for 21 days or more;
“INVENTORY” means text and images relating to a motor vehicle listing or advertisement;
“LAUNCH DATE” means the date described in Item 4 of Schedule 1 or such other date the Parties agree in writing;
“LEAD” means an electronic request submitted by a user in response to a motor vehicle listing or advertisement published electronically;
“LEAD SERVICE” means the services performed by Carsales in accordance with these Terms of Use;
“LEAD DATA” means Data sent by the Lead Service Partner and:
1. is received by Carsales in machine readable form;
2. contains all information prescribed by Carsales from time to time;
3. complies with the Technical Specification;
“PARTICIPATING DEALER” means a motor vehicle dealer that:
1. submits Inventory to the Integrator; and/or
2. receives Leads from the Integrator; and
3. has a current Autogate Account;
“PARTIES” means each of the parties to these Terms of Use;
“PERSONAL INFORMATION” means information, or an opinion, however stored, whether recorded in a material form or not, whether true or not, about a natural person whose identity is apparent or can reasonably be ascertained from the information or opinion;
“TECHNICAL SPECIFICATION” means the specification for sending Data to an Autogate Account as described at http://lead-api.carsalesnetwork.com.au/docs and as amended from time to time;
“TRANSIT DATA“ means a Lead or Inventory that did not originate with the Integrator; and
“USER INPUT DATA” means all data entered by a user that is included within a Lead.

1.2 Interpretation

In these Terms of Use:

a reference to any party or other person includes that person's successors and permitted assigns;
a reference to this or any other document includes a reference to that document as amended, supplemented, novated or replaced from time to time;
a reference to a person includes a natural person, corporation, partnership, trust, estate, joint venture, sole partnership, government or governmental subdivision or agency, association, co-operative and any other legal or commercial entity or undertaking;
the words “include” and “including” mean “including but not limited to”; and
the headings in this agreement do not affect its interpretation.

2. Scope

2.1 Term

These Terms of Use commence on the date the Integrator first utilises the service and continues until terminated in accordance with these Terms of Use.

2.2 Acknowledgements

The Integrator acknowledges and agrees that Carsales does not warrant or represent that:

any motor vehicle dealer maintains or will continue to maintain an Autogate Account on the Autogate Network;
Autogate or the Autogate Network will be continuously accessible. For the avoidance of doubt, Carsales will not be liable in the event that:
1. any Autogate Account is unavailable (in whole or part) for any reason whatsoever; or
2. any Lead Data sent to an Autogate Account is not received in a timely manner or at all.

3. Connection

3.1 Connections

Carsales will, from the Launch Date permit the Integrator to send Lead Data to a Participating Dealer’s Autogate Account in accordance with the Technical Specification.
Each Party will, at its sole cost and expense, do all things reasonable necessary to enable the Integrator to send Lead Data to a Participating Dealer’s Autogate Account.

3.2 Suspension & Disconnections

Carsales may suspend or disconnect access to an Autogate Account without notice or liability if the relevant Participating Dealer ceases to have access to Autogate for any reason whatsoever.
Carsales may suspend or disconnect access to the Autogate Network without notice or liability if, in the reasonable opinion of Carsales:
1. a Default Event Occurs; or
2. the Integrator (or any Participating Dealer) does anything which may damage or disrupt Autogate; or
3. Autogate is being used for any purpose which is in breach of any relevant law, regulation or policy.

4. Lead Data

4.1 Routing

Subject to these Terms of Use, upon receipt by a Carsales server Lead Data will be routed to the Autogate Account to which the Lead Data is addressed.

4.2 Notification

Carsales will use its best endeavours to respond to Lead Data supplied by the Integrator by HTTP response and/or message in accordance with the Technical Specification or as otherwise determined by Carsales in writing from time to time.
The Integrator acknowledges and agrees that:
1. it is the responsibility of the Integrator to verify that the Lead Data has been routed to their Autogate Account;
2. if Carsales does not send a HTTP response and/or message it is the responsibility of the Integrator to resend the Lead Data; and
3. failure to send a HTTP response and/or message is not a breach of these Terms of Use.

4.3 Transit Data

The Integrator will not use, cause or permit Transit Data to be sent to an Autogate Account.
Carsales may, at its discretion, prevent routing of Transit Data to an Autogate Account.

4.4 Security

The Integrator acknowledges and agrees that, unless otherwise agreed in writing, the agreed level of security for Lead Data routed to an Autogate Account is as described in the Technical Specification.

5. Customer Management

5.1 Customer Responsibility

Each Party will be responsible for:
1. entering into an agreement with their own customers in relation to the subject matter of these Terms of Use; and
2. responding to or handling any enquiry or dispute in relation to their Data.
The Integrator acknowledges and agrees that it uses the services on its own behalf and not as Carsales’s agent and must ensure that Carsales does not bear any liability to the Integrator’s customers.

5.2 Problems

The Integrator will not:

when dealing with any customer or any other person, attribute blame to Carsales for any failure of Lead Data to be received in a timely manner or at all unless not doing so would be unlawful;
otherwise disparage Carsales or carsales.com Limited or the services provided by carsales.com Limited.

5.3 Customer Fees

Each Party will determine the usage fees and charges payable by its customers for the services provided under these Terms of Use.

6. Licence to use Lead Data

To the extent necessary, the Integrator grants to Carsales a perpetual and royalty free licence to use, copy, adapt, modify, distribute and sub license any Lead Data and the User Input Data comprised therein for the purposes of:

performing its obligations under these Terms of Use;
providing goods or services to a Participating Dealer; and
creating automotive industry bench marking and best practice statistics without disclosing the source of the Lead Data.

7. No fees

7.1 No fees

Unless otherwise agreed by the parties, the Integrator will not pay any fees for the service.

8. Liability

8.1 Warranties

Other than as set out in this clause 8, and to the extent permitted by law, all implied and express warranties in respect of any goods or services provided by Carsales are hereby excluded.

8.2 Liability

Carsales will only be liable to Integrator:
1. where the law implies a term into these Terms of Use which cannot be excluded and Carsales breaches that term. Provided that, where the breach relates to goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and where it is fair and reasonable to do so Carsales’s liability is limited, at its option, to replacing, repairing or re-supplying the relevant goods or re-supplying the relevant services; or
2. if the claim arises from or in connection with any deliberate breach of these Terms of Use or fraud by Carsales but subject always to clause 8.2(c).
Subject to clause 8.2(a), and except to the extent that liability cannot be excluded, Carsales will not be liable to Integrator for claims arising out of or in connection with these Terms of Use whether arising in contract, tort (including negligence), indemnity, strict liability, breach of warranty or statute.
In no event will either Party be liable to the other for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.
For the purposes of this clause, the term Carsales means carsales.com Limited, its officers, employees, contractors and agents, whether individually or collectively.
This clause will survive the termination or expiration of these Terms of Use.

9. Indemnity

9.1 The Integrator indemnifies Carsales

The Integrator releases and indemnifies Carsales, its employees and agents against all actions, claims and demands (including the cost of defending or setting any actions, claims and demands) arising out of:
1. a breach of these Terms of Use by the Integrator;
2. any deliberate, unlawful or negligent act or omission by Integrator; or
3. the transmission of Lead Data to Carsales or publication of the Lead Data by Carsales or any other person.
This clause will survive the expiration or termination of these Terms of Use.

10. Suspension and Termination

10.1 Suspension

Carsales may suspend the performance of any obligation under these Terms of Use or any right of the Integrator under these Terms of Use, on such terms as it deems fit, if in Carsales’s reasonable opinion a Default event has or is likely to occur.

10.2 Termination with Cause

Without prejudice to any other rights it may have, a Party may terminate these Terms of Use by giving notice in writing to the other Party (“Defaulting Party”) if:

the Defaulting Party commits a material breach of these Terms of Use and the Defaulting Party does not rectify such breach within 5 Business Days of being given notice of the same;
the Defaulting Party is Insolvent.

10.3 Consequences of Termination

On the termination or expiry of these Terms of Use:
1. the Integrator will cease to be entitled to send Lead Data to Autogate Accounts pursuant to these Terms of Use; and
2. the Parties will continue to comply with all obligations expressed herein to continue to apply after the expiration or termination of these Terms of Use.
Termination of these Terms of Use will not prejudice any accrued rights or liabilities of a Party.

11. Confidentiality and Privacy

11.1 Confidentiality

Each Party acknowledges that it may obtain Confidential Information of the other Party and agrees:
1. that it has taken all measures necessary to preserve the confidential nature of the Confidential Information of the other Party;
2. it will only use the Confidential Information of the other Party strictly for the purpose for which it was provided; and
3. that it has not and will not, without the prior written consent of the other Party, disclose any of the Confidential Information of the other Party to any person,
A Party will not be in breach of sub-clause 11.1(a) in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.
Each Party shall take all reasonable steps to ensure that its employees, and agents, and any sub-contractors engaged for the purposes of these Terms of Use, are aware of and comply with the obligations of this clause and do not make public or disclose the other Party’s Confidential Information.

11.2 Exception

Notwithstanding any other provision of this clause, either Party may disclose these Terms of Use (other than Confidential Information of a technical nature) to its Related Bodies Corporate, solicitors, auditors, insurers or accountants, and shall ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to that Party.

11.3 Privacy

In performing these Terms of Use, each Party will:

use Personal Information only for the purposes it was provided for and any other purpose permitted by law; and
comply with all applicable laws in relation to privacy.

11.4 Survival

This clause shall survive the termination of these Terms of Use.

12. Trademarks

The Integrator will not, without Carsales’s prior written consent:

represent, suggest or imply in any way whatsoever that Carsales or carsales.com.au Limited in any way approves of, sponsors, endorses or is affiliated with the Integrator;
use any trade mark of Carsales or carsales.com.au Limited.

13. Force Majeure

Neither Party will be liable for any delay or failure to perform its obligations pursuant to these Terms of Use if such delay is due to Force Majeure.
If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations (affected by the Force majeure) will be suspended (other than any obligation to pay any Settlement Fees due).
If the delay or failure by a Party to perform its obligations due to Force Majeure exceeds 60 days, either Party may immediately terminate the provision of the services on providing written notice in writing to the other Party.

14. Miscellaneous

14.1 Relationship between the Parties

Nothing contained in these Terms of Use constitutes the relationship of agency or partnership between the parties and it is the express intention of the Parties that such relationships are denied.

14.2 Non Exclusivity

Nothing in these Terms of Use is intended to prohibit or otherwise restrict either Party from entering into similar agreements with third parties.

14.3 Notice

Any notice, demand or other communication to be given or required to be made under these Terms of Use is to be in writing and is to be given by post, facsimile or hand to a party at the party's address as set out in these Terms of Use or at such other address or facsimile number as is notified in writing by one party to the other Party.

14.4 Provisions severable

If any provision of these Terms of Use is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from these Terms of Use.

14.5 Governing law

These Terms of Use is governed by and construed in accordance with the laws of the State of Victoria, Australia and the Parties irrevocably submit to the jurisdiction of the courts of that State.

14.6 Assignment

The Integrator may not assign, transfer or otherwise dispose of, in whole or in part of their rights or obligations under these Terms of Use, without the prior written consent of Carsales. Carsales may assign these Terms of Use on written notice to the Integrator.

14.7 Variation

No part of these Terms of Use may be amended or modified unless reduced to writing making specific reference to these Terms of Use and signed by the Parties or their authorised representatives.

14.8 Waiver

Failure by any Party to exercise or delay in exercising any right, power or remedy under these Terms of Use does not prevent its exercise. A waiver must be in writing signed by the Party giving the waiver.

14.9 Entire Terms of Use

These Terms of Use set out the entire agreement and understanding between the parties with respect to the subject matter of these Terms of Use and supersedes all prior agreements, understandings and representations.