1. Website Contract
1.1 The definitions and rules of interpretation in this clause shall apply throughout this Agreement:
“Agreement” means the agreement comprising the cover sheet attached to these terms and conditions and these terms and conditions.
“AGN” means the business trading as Auto Garage Network Ltd.
“AGN Content" means all text, pictures, sound, graphics, video and other data included in or Presented on the Website.
“Brands” means the brand name AGN and such other names as may be nominated by Auto Garage Network Ltd for the Purpose of this Agreement, and “Brand” shall be construed accordingly.
“Business” means the business carried on by Auto Garages.
“Confidential Information” means any information which is disclosed by AGN to the Partner (whether directly or indirectly, whether verbally or in writing and whether or not such information is marked “confidential”) or which shall otherwise come into the hands of the Partner in relation to the Business including, without limitation, any Customer details;
“Customer” means a customer of the Partner who has had or is to have Services provided by the Partner pursuant to this Agreement.
“Domain” means the domain name purchased directly by and owned by the Partner.
“Exclusive Area” has the Meaning set out in the Our Promise section to these terms and conditions.
“Group” means AGN and any subsidiary and holding company of AGN and each subsidiary of any such holding company (as “Subsidiary” and “Holding Company” are defined in Part 38 of the Companies Act 2006).
“Intellectual Property Rights” means the existing and/or future intellectual or industrial property rights including but not limited to all existing and future copyright, design rights (whether registered or unregistered), database rights, patents, trademarks (whether registered or unregistered), semi-conductor topography rights, internet rights/domain names, rights in know-how and confidential information and any and all applications for any of the foregoing whether conferred by contract, common law or otherwise and which exist or arise anywhere in the world in or relating to the Business, the Website, the Software and the AGN Content;
“Monthly Fee” has the meaning set out in the quote and payment schedule to these terms and conditions.
“Partner” has the meaning
to these terms and conditions.
“Service” means the development, provision, ongoing availability, support, and maintenance of a website for the Partner pursuant to this Agreement.
“Software” means the computer software (in source code and object code format) used in the Website, including all computer programs, algorithms, coding, routines and applications.
“Term” has the meaning set out in the quote confirmation to these terms and conditions.
“Website” means the Partner website and its associated Domain/URL.
1.2 Any reference in this Agreement to writing includes email, facsimile transmission, or any similar means of communication.
1.3 In this Agreement, unless otherwise specified or the context otherwise requires:
1.3.1 Words importing any gender shall include the other genders and words importing natural persons shall include corporations and vice versa.
1.3.2 Words importing the singular only shall include the plural and vice versa.
1.3.3 Words importing the whole shall be treated as including a reference to any part thereof: and
1.3.4 Reference to any English legal term for any action, remedy, a method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most closely approximates in that jurisdiction to the English legal term. 2. CONTRACT TERM
2.1 The Contract Term consists of an initial period of
months (the "Initial Term") and subsequent renewals. At the end of the Initial Term, this Agreement will automatically renew for subsequent periods of one month each, unless and until terminated pursuant to these terms and conditions. 3. THE SERVICE
3.1 The service scope includes the development, provision, on-going availability, support and maintenance of a website or software product for the Partner pursuant to this Agreement. In the unlikely event of a fault or service issue, AGN will usually rectify any reported fault within 24 hours but reserve the right to ask for a total of seven working days to make good. 4. RESPONSIBILTY FOR CONTENT, B2B FILE SHARING & INTEGRATIONS, AGN LIABILITY, EXEMPTION
4.1. Partners are solely responsible for the supplier product and price files they use to populate offers on their website and the prices they advertise to the customer and are obliged to regularly ensure their pricing structure relates to their expected margin levels.
4.2 Partners are responsible for all content displayed on their website, especially ensuring the content is not against the law and does not affect the rights of third parties (e.g. copyright and trademark rights). If the content displayed does not comply to these conditions, partners are obliged to inform AGN for correction as soon as appropriate.
4.3 AGN does not examine the correctness or completeness of supplier product and price files submitted to the website, or whether they affect the rights of third parties or are in discordance with objective law. Therefore, the operator is not liable for any price discrepancies or offences in the aforementioned areas, or for the credit standing of partners.
4.4. AGN does not assume responsibility or liability that may result from sales agreements negotiated or concluded based on offers displayed on the website if they cannot be enforced due to legal regulations of an involved state, or lead to any other legal or economic disadvantages for one or both parties.
4.5. The partner exempts AGN from all legal claims made against AGN by third parties that result from the partners offers or from utilising the website in any other way.
4.7. The Tyre product catalogue run by AGN is protected by copyright. Partners or customers are not permitted to copy, distribute, or reproduce contents of the database independently or with the assistance of third parties, to download through robot/crawler or other automatic mechanisms or to search the database or use mechanisms likely to overload the platform or exceed the average user load by 30%. 5. DATA
5.1 The Partner shall own all right, title, and interest in and to all the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 AGN shall follow its archiving procedures for Customer Data as set out in its Back-up Policy, as such document may be amended by AGN in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against AGN shall be for AGN to use its reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by AGN. AGN shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by AGN to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 5.9).
5.3 AGN shall, in providing the Services, comply with its Data and Privacy Policies relating to the privacy and security of the Customer Data as may be amended from time to time by the Supplier in its sole discretion.
5.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation
5.5 The parties acknowledge that:
(a) If AGN processes any personal data on the Partner’s behalf when performing its obligations under this agreement, the partner is the data controller and AGN is the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the
meanings as defined in the Data Protection Legislation).
(b) The Data and Privacy Policies set out the scope, nature and purpose of processing by AGN, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
(c) The Partner acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the partner and the Authorised Users are located in order to carry out the Services and the Supplier's other obligations under this agreement.
5.6 Without prejudice to the generality of clause 5.1, the partner will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to AGN for the duration and purposes of this agreement so that AGN may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Partner's behalf.
5.7 Without prejudice to the generality of clause 5.1, AGN shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) Process that Personal Data only on the written instructions of the Partner unless AGN is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where AGN is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, AGN shall promptly notify the Partner of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Partner;
(b) Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(c) Not transfer any Personal Data outside of the EEA unless the following conditions are fulfilled:
(i) The Partner or AGN has provided appropriate safeguards in relation to the transfer.
(ii) the data subject has enforceable rights and effective legal remedies.
(iii) AGN complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) AGN complies with reasonable instructions notified to it in advance by the Partner with respect to the processing of the Personal Data.
(d) Assist the Partner, at the Partner's cost, in responding to any access request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
(e) Notify the Partner without undue delay on becoming aware of a Personal Data breach.
(f) At the written direction of the Partner, delete or return Personal Data and copies thereof to the partner on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(g) Maintain complete and accurate records and information to demonstrate its compliance with this clause 5.
5.10 Prior to the termination or cancellation of this agreement, AGN will use its reasonable endeavours to return and/or export to the Partner, any of its own data that the Partner wishes to recover from its use of the Service. Where this is possible, the data will be supplied as a .csv file and in no other format without the prior written consent of AGN. It shall be the Partner’s responsibility to ensure that the request to AGN to return or export its own data shall be made prior to termination of cancellation of the agreement and AGN shall not be liable to the Partner or any third party for loss of any of this data arising from the Partner’s failure to request the return or export of the data prior to termination or cancellation of this agreement. 6. FEES
6.1 In consideration of AGN providing the Service described in clause 3, the Partner Organisation will pay the Monthly Fee shown in the quote and payment schedule (plus any value added tax that may be chargeable) for the duration of this Agreement, subject to annual review by AGN with the Partner being given at least 30 days' notice of any change to the Monthly Fee as result of such review.
6.2 The monthly fee shall be paid to AGN by Direct Debit as specified on the initial quote at the start of the Contract Term. After an initial period of 6 months, the usage of the VRM lookup system will be reviewed.
6.3 Upon contract initiation, the Set-up Fee will become due. A single invoice will be provided at this time covering the Set-up Fee to be paid.
6.6 If a partner chooses not to be included in on-going site development, any required amendments to the site and/or system after an initial 4 week period will be charged for at £25 per hour (an assessment of the necessary hours will be quoted prior to the commencement of work). 7. INVOICING
7.1 Invoices be issued for the set-up fee and for every individual Monthly Fees paid. 8. TERMINATION
8.1 After (the "Initial Term") either party may give one months’ notice of termination of this Agreement in writing.
8.2 During (the "Initial Term") should the “customer” choose to terminate, they will be liable to pay in full for the remainder of that term.
8.3 At contract termination, AGN will provide the Partner with the website landing pages and transfer them to the partners new website host partner. It is the sole responsibility of the Partner Organisation to confirm to AGN its new hosting arrangements; this must be done at least 30 days before the one-month notice ends.
8.4 AGN will not terminate the contract unless any of the following occur: -
If the partner fails to keep admin access details protected, either by accident or design by any party and this results in third-party exposure. To this end, AGN will track IP addresses where login occurs. The garage owner will be ‘personally liable’ for any losses that may occur in these circumstances.
Failure to pay any fees payable to Auto Garages. In this event, AGN will suspend the site and charge for its reinstatement.
9. BUSINESS FAILURE
9.1 In the unlikely event of business failure of either party, this contract will necessarily become void.
9.2 If the Partner Organisation business fails, AGN will seek payment of any outstanding Set-Up Fee from the Partner Organisation’s administrators. In all other respects, Clause 6 Termination applies.
9.3 If AGN business fails, the Partner Organisation will be given license to use its extant website in perpetuity. When the Partner Organisation informs AGN of its new hosting arrangements, AGN will manage a transfer of the website to ensure Partner Organisation business continuity. 10. ADDITIONAL CONDITIONS
10.1 The Partner will provide written content for the website Home/ About page and approve the initial Partner Organisation-specific content to be included on the Website, including its product and service range, facilities, and opening hours.
10.2 The Partner will provide the Domain name credentials for the new site within two weeks of the start of implementation.
10.3 AGN provides unique content written specifically to generate high search engine rankings, the partner agrees to not amend this content for a minimum of six months.
10.4 AGN will adhere to all points in the “Our Promise” section.
10.5 AGN reserve the right to promote any tyre brand, tyre and/or parts supplier or any other business connected to the automotive industry.
10.6 AGN reserve the right to periodically monitor the performance of each partner website activity to assess the volume of traffic generated, this will include phone calls (to enable this, calls may be directed to a third-party number). This process will only be carried on a short-term basis unless prior arrangements have been made.
10.7 If a partner chooses to be included in on-going site development, which means the website is continually connected and monitored allowing all updates to be directly sent to the partner site (Auto Garage intend to commit 50% of its yearly turnover to further site development) a premium subscription fee will apply and will be charged monthly as indicated in the Quote confirmation.