Smart Buying (Auto Trader Autostock Limited customers)
Terms and Conditions for the Supply and Use of Smart Buying (Auto Trader Autostock Limited customers)
PLEASE READ THESE CONDITIONS CAREFULLY.
These terms apply to you if you have an independent subscription for Smart Buying which appears as a separate line item on your Auto Trader invoice and is not bundled as part of any other product.
These Conditions constitute a legally binding agreement between Autostock and the User and govern the provision and use of products and features supplied by Autostock to the User which enable access to Autostock’s trade-to-trade used car marketplace and allows the User to buy stock from multiple sources and sell vehicles to other trade dealers.
Autostock may modify these Conditions from time to time and you should therefore ensure that you review these Conditions regularly. Your attention is drawn in particular to Clause 11 (Liability and Indemnity).
DEFINITIONS AND INTERPRETATION
In these Conditions, unless the context otherwise requires, the following terms have the following meanings:
“Advert” or “Advertisement” means any copy, artwork, text, data, photographs, slides and/or video clips advertising a vehicle that is to be published on the Smart Buying Platform;
“Advertising Guidelines” means the Auto Trader advertising guidelines imposed by Autostock on all Users which all Adverts must comply with, as set out at https://trade.autotrader.co.uk/terms-and-conditions/advertising-guidelines;
“Auction Vehicle(s)” means vehicle(s) listed for sale using the auction functionality on the Smart Buying Platform (but excluding auction house vehicle stock advertised on the Smart Buying Platform as part of the classified advertisements functionality);
“Auction Profiler” means the product available for purchase by the User in addition to the standard Smart Buying package for an additional monthly fee, which enables the User to upload a third party owned stock list of vehicles and send it to Autostock for Autostock to supplement with additional information, including stock desirability and days to sell at a national level, for the User’s own internal business use;
“Autostock” means Auto Trader Autostock Limited (company no. 11499895) whose registered office is 1 Tony Wilson Place, Manchester M15 4FN;
“Auto Trader” means Auto Trader Limited (company no. 03909628) whose registered office is 1 Tony Wilson Place, Manchester M15 4FN;
“Bidder” means a User who bids for Auction Vehicle(s) using the auction functionality on the Smart Buying Platform;
“Buyer” means (i) in the context of auction functionality, a Bidder who submits the winning bid on an auction through the Smart Buying Platform, and (ii) in the context of a Buy it now Vehicle, a User who submits a binding Offer for the advertised price displayed on a Buy it now Vehicle listing on the Smart Buying Platform;
“Buy it now Purchase” means a binding Offer for the advertised price displayed on a Buy it now Vehicle listing on the Smart Buying Platform which is accepted by the Seller simultaneously;
“Buy it now Vehicle(s)” means vehicle(s) listed for sale on the Smart Buying Platform which are immediately available for purchase by a User at the price listed and which is labelled or visually identifiable as ‘Buy it now’;
“Charges” means the charges to be paid by the User for Smart Buying which will consist of the Subscription Fee to be paid by the User for access to the Smart Buying Platform as set out in an Order Confirmation and/or Order Variation or otherwise as specified by Autostock, and any additional transaction fees for sales/purchases transacted through the Smart Buying Platform which Autostock reserves the right to raise, on notification to Users, in the relation to the sale and purchase of Auction Vehicles and Buy it now Vehicles;
“Conditions” means the Terms & Conditions for the supply and use of Smart Buying, as set out in this document;
“Condition Report” means a report provided by a Seller to other Users via the Smart Buying Platform for an Auction Vehicle or a Buy it now Vehicle, based on a template provided by Autostock or otherwise provided in a format uploaded by the Seller, which sets out an accurate reflection of the condition of such Auction Vehicle or Buy it now Vehicle, including exterior and interior damage and tyre depth;
“Data” means information regarding the User, the Stock Information and the Supplemental Information;
“Feedback” means the ability to ‘favourite’ other Users of the Smart Buying Platform;
“Intellectual Property Rights” means all intellectual property rights wherever in the world arising whether registered or unregistered (including any application for registration), including without limitation, all copyright, trademarks, trade names, logos, patents, design rights, database rights and/or know how;
“Materials” means any copy, artwork, data, photographs, slides, video clips, information and/or other material provided or selected by the User for inclusion in an Advert or otherwise uploaded to the Smart Buying Platform and/or Portal;
“Offer” means an offer of money to another User for the purchase of a Buy it now Vehicle or Auction Vehicle via the Smart Buying Platform which signifies the intention to pay the sum of money offered for the Buy it now Vehicle or Auction Vehicle;
“Order Confirmation” means the order communication sent by Autostock to the User confirming details of the User’s order;
“Order Variation” means the form detailing changes requested by the User to the Usage Agreement to either add upgrade or downgrade their Smart Buying functionality;
“Portal” means Auto Trader’s digital dealer portal platform which will be utilised by Autostock to allow Users to manage their Adverts, stock and account;
“Proxy Bidding” means bidding functionality on the Smart Buying Platform which allows bids for Auction Vehicles to be made on the Bidder’s behalf (with notification of a maximum bid by the Bidder);
“Seller” means (i) in the context of auction functionality, a User who lists for sale Auction Vehicle(s) using the auction functionality on the Smart Buying Platform, and (ii) in the context of a Buy it now Vehicle, a User who lists for sale a Buy it now Vehicle on the Smart Buying Platform vehicle(s);
“Smart Buying” means the products and services provided by Autostock to the User pursuant to the Usage Agreement (and subject to and in accordance with these Conditions) which constitutes a trade-to-trade used car marketplace and allows the User to buy stock from multiple sources and sell vehicles to other Users (and includes auction functionality and the ability to list for sale vehicles which are immediately available for purchase by a User at the price listed), and further recommends and profiles vehicles that meet the User’s sourcing strategy taking into account retail rating, desirability, market turn, days to sell and market insight (and all references to Smart Buying in these Conditions shall be deemed to include references to Auction Profiler where the User has subscribed to Auction Profiler under the Usage Agreement);
“Smart Buying Platform” means the Smart Buying platform accessed through Portal (including via mobile and tablet);
“Stock Information” means any data regarding the User’s stock of vehicles including but not limited to vehicle registration details, images, prices and sales information which is uploaded to the Portal or otherwise communicated or made available to Autostock;
“Subscription Fee” means the sum payable every month by the User to Autostock for access to the Smart Buying Platform as set out in the Order Confirmation and/or Order Variation, including the additional monthly fee payable for Auction Profiler where it has been purchased by the User;
“Supplemental Information” means information used by Autostock to supplement and enhance the Stock Information, including verification, enhancement or amendment of the Stock Information;
“Third Party Website” means any third-party website or digital platform on which an Advert is to be placed as solely determined by Autostock;
“Usage Agreement” means the agreement between Autostock and the User for the purchase and supply of Smart Buying, incorporating these Conditions, which may be amended from time to time; and
“User” means the person, firm or company who enters the Usage Agreement with Autostock and has subsequently been issued with a username and password for accessing the Smart Buying Platform.
- In these Conditions, references to the singular include plural and vice versa; references to numbered clauses are references to the relevant clause in these Conditions; the headings to the clauses will not affect interpretation; any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and a reference to writing includes emails.
In the case of any conflict or ambiguity between any provision contained in these Conditions and any provision contained in an Order Confirmation and/or Order Variation, the following order of precedence shall apply in ascending order with Order Variation taking precedence at the top:
- Order Variation
- Order Confirmation
- Each order for subscription to Smart Buying (and each order for Auction Profiler as an additional product as part of Smart Buying) shall be deemed to be an offer by the User to subscribe to Smart Buying (including Auction Profiler, as applicable) subject to these Conditions.
- Orders placed by the User shall only be deemed accepted by Autostock when Autostock sends an Order Confirmation or Order Variation (as applicable) to the User. The User shall ensure that the terms of its order are complete and accurate. If changes are required, the User should inform Autostock as detailed on the Order Confirmation or Order Variation.
- Autostock shall be entitled to modify these Conditions from time to time and any modifications shall be effective immediately from the time they are notified to the User. Display of the modified Conditions in Portal shall be deemed to be notice to the User. The User agrees to review the Conditions regularly to ensure they are aware of any modifications.
- These Conditions govern the Usage Agreement to the exclusion of any other terms and conditions (including any terms the User seeks to impose) unless expressly stated otherwise in writing by Autostock.
- The User will subscribe to Smart Buying as detailed in an Order Confirmation.
- In consideration of payment of the Charges by the User in accordance with clause 6, and subject to compliance by the User with these Conditions, Autostock will provide Smart Buying to the User commencing on the date set out in the Order Confirmation (or, if no such date is set out, the date that access to the Smart Buying Platform is initiated for the User).
- If after entering the Usage Agreement, the User requests an upgrade or downgrade to their Smart Buying functionality, Autostock shall confirm details of the requested change via an Order Variation. Except as expressly amended by any Order Variation the original Usage Agreement shall remain in full force and effect. For the avoidance of doubt, if a User wishes to cancel Smart Buying or request an upgrade or downgrade to their Smart Buying functionality, the User must give notice to Autostock in accordance with clause 10.2.
- Autostock will use reasonable endeavours to publish Adverts within 24 hours, although there may be reasons that delay the publication of the Adverts (e.g. additional checking). Publication of adverts on bank holidays or any other public holiday may take longer.
- Autostock will use all reasonable endeavours to remedy faults or errors on the Smart Buying Platform. The User acknowledges and accepts that once a fault or error has been reported to Autostock it may take up to 2 working days for Autostock to investigate and rectify the problem.
- Autostock does not guarantee that an Advert will appear on any or a specific number of Third Party Websites. Autostock may at its sole discretion vary the Third Party Websites on which an Advert appears from time to time.
- Autostock shall provide additional technical specification details for Adverts which shall solely consist of details that Autostock can obtain from its current supplier’s dataset. The User acknowledges that the technical specification will be for the most recent model of the vehicle in question and will not be the technical specification for the exact vehicle in question. Such details will only be provided by Autostock upon provision by the User of a valid registration number for the vehicle in question. The provision of a valid registration number is the User’s sole responsibility. It is the User’s responsibility to ensure any inaccuracies in the technical specification are corrected in the Advert and at the point of sale of the vehicle.
- A Seller can only list a vehicle as either a classified listing, a Buy it now Vehicle or an Auction Vehicle, and cannot list any vehicle on the Smart Buying Platform using more than one of the foregoing functionalities.
- he Smart Buying Platform provides a service for displaying vehicle Adverts. Additional functionality is available around such Adverts by way of auctions and Buy it now Purchases and further detail around such functionality is set out below in this clause 3. In respect of any functionality available through the Smart Buying Platform, Autostock and the Smart Buying Platform act only as a means by which Users (sellers and potential buyers) can be introduced, and any arrangements made between Users are at each User’s sole risk and responsibility.
- The User’s vehicle stock listed on the Smart Buying Platform should reflect trade pricing. Autostock will prompt Users to re-evaluate the price outlined in an Advert when it is greater than 10% of the average Auto Trader guide price. The guide price is provided by Auto Trader and is displayed at the time of creating the Advert.
- Autostock reserves the right to remove Adverts or prohibit any Users who consistently price their vehicle stock significantly above the average Auto Trader guide price.
- Upon the implementation of auction functionality within Smart Buying, full instructions on how to bid for the Auction Vehicles and details of the expiry date and time for each auction will be posted on the Smart Buying Platform. Notwithstanding the foregoing, all bids and transactions shall be subject to these Conditions. Notwithstanding any other provision of these Conditions, the auction functionality on the Smart Buying Platform is currently being piloted and, as a result, it will simply introduce the Buyer and the Seller. There will be no transaction fee at the point the pilot phase goes live and there will be no legal obligation to complete the sale, on either the Buyer or Seller, after the auction has ended.
- After the pilot phase referred to at clause 3.12 above has concluded, once a Bidder has made an Offer for an Auction Vehicle on the Smart Buying Platform it cannot be withdrawn and is binding on the Bidder for the purposes of these Conditions. Upon making an Offer for an Auction Vehicle, the Bidder is agreeing to purchase the Auction Vehicle for the price offered in the event that it is the highest Bidder. Once a bid has been accepted by a Seller the Bidder is bound to the Seller to complete the transaction and pay the purchase price offered. Users should not place any Offers if they do not intend to be legally bound to purchase the relevant Auction Vehicle.
- To win an auction for a particular Auction Vehicle, the Offer submitted must be the highest bid of the auction and must meet any other criteria which may be specific to the auction.
- Autostock will enable Proxy Bidding for Bidders during auctions on the Smart Buying Platform. Where an Offer exceeds the reserve specified by the Seller Proxy Bidding will only make an Offer for the reserve price figure and will display a reserve met status on the Auction Vehicle listing. Offers will then increase up to the maximum bid set by the Bidder on the Smart Buying Platform, as subsequent bids are placed;
- Upon listing an Auction Vehicle for auction on the Smart Buying Platform, the Seller undertakes that it is the owner of the Auction Vehicle or have valid documented authority from the owner to sell the Auction Vehicle in accordance with section 12 of the Sale of Goods Act 1979, and further agrees to sell the Auction Vehicle to the Buyer should it reach or go beyond its reserve price.
- During the pilot phase referred to at clause 3.12, the Seller has the right to end an auction at any time without prior notification, provided that immediate notification has been given to Autostock. However, Autostock reserves the right to contact Sellers and remove their access to the auction functionality during the pilot phase should it receive complaints from other Users that such Sellers are repeatedly ending auctions before their previously stated end date/time.
- The Buyer will receive confirmation of its winning Offer by email.
- Following any auction, the Seller agrees to transfer title in the Auction Vehicle to the Buyer when payment has been successfully completed to the Seller. On payment completion, the Buyer will be responsible for contacting the Seller to arrange a date and time for collection of the Auction Vehicle and the Seller will promptly confirm such collection date and time. Sellers and Buyers agree to complete the transaction for an Auction Vehicle within 72 hours of the relevant auction closing.
- A Seller can elect to list a vehicle as a Buy it now Vehicle. The amount listed as part of the Buy it now Vehicle Advert is the amount for which the Buy it now Vehicle is immediately available for purchase by a User.
- A Buyer can initiate a Buy it now Purchase by submitting an Offer for a Buy it now Vehicle on the Smart Buying Platform. Once a Buyer has made an Offer for a Buy it now Vehicle the Offer cannot be withdrawn, and the Buyer is bound to the Seller to complete the purchase of the Buy it now Vehicle for the purposes of these Conditions. Upon making an Offer for a Buy it now Vehicle, the Buyer is agreeing to purchase the Buy it now Vehicle for the price offered and complete the transaction. Users should not place any Offers if they do not intend to be legally bound to purchase the relevant Buy it now Vehicle.
- Upon listing a Buy it now Vehicle on the Smart Buying Platform, the Seller undertakes that it is the owner of the a Buy it now Vehicle or have valid documented authority from the owner to sell the a Buy it now Vehicle in accordance with section 12 of the Sale of Goods Act 1979, and further agrees to sell a Buy it now Vehicle to the Buyer should an Offer be made for the advertised price.
- Following submission of an Offer by a Buyer for a Buy it now Vehicle, the Seller agrees to transfer title in the Buy it now Vehicle to the Buyer when payment has been successfully completed to the Seller. On payment completion, the Buyer will be responsible for contacting the Seller to arrange a date and time for collection of the Buy it now Vehicle and the Seller will promptly confirm such collection date and time. Sellers and Buyers agree to complete the transaction for a Buy it now Vehicle within 72 hours of the relevant Offer being submitted by a Buyer.
- Sellers are required to provide Condition Reports for all Auction Vehicles, and an Auction Vehicle cannot be listed on the Smart Buying Platform without a Condition Report. Condition Reports are not mandatory for Buy it now Vehicles or any other vehicles listed on the Smart Buying Platform but Autostock recommends the provision of Condition Reports by Sellers for Buy it now Vehicles.
- The Seller is solely liable for the content of any Condition Report and Autostock is unable to check the information contained in any such Condition Report. Condition Reports shall be deemed Materials for the purposes of these Conditions and the Seller is therefore solely responsible for, without limitation, ensuring that the Condition Report is complete, accurate, legal, non-defamatory, decent, honest and truthful and comply with the British Code of Advertising Practice, all other relevant codes under the general supervision of the Advertising Standards Authority and all current relevant legislation and the Advertising Guidelines. Accordingly, Autostock shall not be liable to any User or any third party, to the maximum extent permitted by law, in respect of the content of any Condition Report.
- The Smart Buying Platform is merely a platform to facilitate the buying and selling of vehicles by introducing Users to each other. Autostock will not, and is not obliged to assist, in any disputes between any Users (including any disputes between the Seller and any Bidder or Buyer in the context of Auction Vehicles and Buy it now Vehicles).
- Without prejudice to clause 3.26 above, Users may submit complaints about other Users’ Use of the Smart Buying Platform. Autostock will investigate all such complaints and take such action as it deems necessary, including any rights it has under Clause 10.
- Where a User purchases Auction Profiler as part of its Smart Buying package pursuant to these Terms, Autostock grants to the User a personal, non-exclusive, non-transferable licence, for the period the User remains subscribed to Auction Profiler, to use any data Autostock provides to the User through Auction Profiler solely for its own internal business purposes within the motor industry.
- The User is only permitted to upload third party owned vehicle stock via Auction Profiler, and the User is not permitted to upload its own stock (which for the purposes of these Conditions includes any stock the User is seeking to sell).
- The User warrants that it will not alter, adapt, merge, copy or modify the data Autostock provides to it for the purposes of Auction Profiler in any way for any purpose, including without limitation, for error correction.
- Only the file formats supported by Auction Profiler will deliver results. From time to time, stock sources may change the format on their data, causing Auction Profiler being unable to read the file. Autostock will endeavour to update format recognition for such sources within a reasonable time frame.
- The User is prohibited from reselling or otherwise making available to any third party, any data that is supplied to it through Auction Profiler.
- The User acknowledges and agrees that any information Autostock provides for the purposes of Auction Profiler is comprised of data provided by third parties and that in providing this information, Autostock does not warrant the accuracy of any information provided, and any information provided shall be for guidance purposes only. Any business decisions taken in reliance of such information shall be at the User’s sole risk.
- Feedback must only be provided by Users as an accurate and truthful reflection of their experiences whilst conducting business with other Users on the Smart Buying Platform.
- Users must not take any actions that may undermine the integrity of the Feedback system. All Feedback content on the Smart Buying Platform is the sole responsibility of the Users who originate such content. Autostock may not monitor or control any Feedback content posted via the Smart Buying Platform and it cannot take responsibility for such content.
- The User agrees to only contact other Users regarding the sale and purchase of goods or services advertised on the Smart Buying Platform and not to use contact details of any third party for any other purpose. Misuse of the Smart Buying Platform will result in a breach of these Conditions and Autostock reserves all of its rights (including in particular those set out in clause 10 below).
- The User agrees not to disclose any contact details or Advert details of any User to any third party who is not a User.
- Autostock reserves the right to revise the Smart Buying Platform or withdraw access to part or all of it at any time.
Classified Advertising Functionality
Buy it now
Disputes and Complaints
Use of Information relating to others
COPY, ARTWORK AND PHOTOGRAPHS
- Autostock may refuse to publish an Advert and/or, edit or require an Advert to be amended so as to comply with legal or moral obligations placed on either party; to avoid infringing third party rights, the British Code of Advertising Practice and all other codes under the general supervision of the Advertising Standards Authority and/or any relevant regulations or legislation; to respond to any complaints; to correct typographical errors or technical inaccuracies that may appear from time to time; and/or for any other technical and/or quality reasons.
- Autostock has the right, at its sole discretion, to remove from the Smart Buying Platform, at any time and for any reason, any Adverts which contain misleading information and do not comply with the Advertising Guidelines.
- The User shall be solely responsible for uploading any images (including photographs and video) and for checking the accuracy of any Advert for errors and amending copy.
- Autostock reserves the right in its sole discretion not to include a photograph or video in an Advert. There will be no deduction in the Charges if photographs or videos are not included in an Advert. Autostock shall not be liable if the quality and/or colour of any photograph published in an Advert is not acceptable to the User.
- Autostock may receive Materials via such means as specified by Autostock from time to time. However, the User shall submit Materials at its own risk and Autostock shall not be liable or responsible for non-receipt or corruption of Materials sent by the User and/or arising out of any third-party data feed stock errors.
Where Material is sent by means other than Portal, Autostock shall not be liable for:
- the compatibility of third party systems with those of Autostock; and/or
- failure by Autostock to upload Material to the Smart Buying Platform at the same frequency as would occur if Material was supplied by the User via Portal.
- The User is solely responsible for correctly completing all mandatory data fields for each Advert and for submitting Material to Autostock in the correct format as specified and by any deadlines specified by Autostock. Autostock has no liability in respect of any Advert not appearing on the Smart Buying Platform where the User has failed to submit Material in accordance with this clause.
- The User is prohibited from supplying any contact details, including but not limited to, any telephone numbers or e-mail addresses, website addresses or URLs in additional data fields. Failure to comply with this rule may, at Autostock’s sole discretion, result in the removal of all the User’s Adverts.
- The User shall ensure that all hyperlinks in an Advert link directly through to the page on the User’s website displaying the exact vehicle identified in the Advert. Failure to provide direct and correct links may, at Autostock’s sole discretion, result in the removal of all the User’s Adverts.
USER’S OBLIGATIONS AND WARRANTIES
The User warrants that it shall not:
- upload information to Portal or the Smart Buying Platform on any business except its own and shall not otherwise use Portal or the Smart Buying Platform for any business other than its own;
- access any unauthorised areas of the Smart Buying Platform or Portal;
- reverse engineer, decompile, disassemble or modify the whole or any part of any software (nor attempt to do any of the same) used by the User about Portal and/or the Smart Buying Platform (except to the extent permitted by law). The User shall not use software to access Portal and/or the Smart Buying Platform without permission and/or use software that will corrupt Portal and/or the Smart Buying Platform in any way;
- copy, reproduce, redistribute, download, republish, transmit, display, adapt, alter, create derivative works from or otherwise extract or re-utilise any of the contents of the Smart Buying Platform, including taking screenshots of the Smart Buying Platform, scraping or caching any of the contents for access by third parties, nor mirror or frame any of the content of the Smart Buying Platform nor incorporate it into another website without Autostock’s express written permission;
- upload files to the Smart Buying Platform that contain a virus and/or corrupted data and/or development code or scripts; and
- be permitted to place more than one Advertisement for any one vehicle, product or service on the Smart Buying Platform and Autostock shall be entitled to remove any Advertisements that duplicate other existing Advertisements on the Websites, at its sole discretion. In relation to vehicles advertised, an Advertisement will be deemed to be a duplication if the make, model, derivative, trim and price of the vehicle advertised on the Smart Buying Platform are all identical to those of another vehicle advertised on the Smart Buying Platform.
- The User shall keep safe and confidential all passwords, security identification and/or encryption details relating to Portal and/or the Smart Buying Platform and will follow all security instructions issued by Autostock from time to time. The User will promptly update their password details and notify Autostock if it believes that any password and/or other security information has been disclosed or is otherwise at risk. The User is responsible for the security of its account and shall notify Autostock of any authorised users and any changes to such users.
The User will treat as confidential all information contained in or concerning the Smart Buying Platform, Portal and/or Smart Buying generally. The User will not disclose such information to any third party, except to the extent that:
- it is required to do so by a court or other competent authority if such notice of disclosure as is possible is given to Autostock; or
- the information is already, or becomes, public knowledge except by way of any breach of confidence.
- The Smart Buying Platform and any data Autostock provides to a User through Auction Profiler is provided on an "as is", "as available" basis and although Autostock makes reasonable efforts it does not guarantee the timeliness, completeness or performance of Smart Buying Platform, the goods and services advertised on the Smart Buying Platform or any data Autostock provides to a User through Auction Profiler. No warranty is given by Autostock that the Smart Buying Platform and any data Autostock provides to a User through Auction Profiler is free from computer viruses or any other malicious or impairing computer programs and the User shall report to Autostock any suspected faults to Portal and/or the Smart Buying Platform promptly after such suspected faults come to the User’s attention.
- The User shall be solely responsible for obtaining, operating and maintaining all necessary computer hardware, software, modems and telecommunications links which it requires to access and use Portal and the Smart Buying Platform.
- The User agrees that any questions and complaints regarding the vehicles offered for sale by the User on the Smart Buying Platform are the exclusive responsibility of the User.
The User warrants that:
- it is a motor/vehicle dealer, fleet and/or rental company, auction house or an advertising agency or other representative acting on behalf of a motor/vehicle dealer, fleet and/or rental company or auction house for the purposes of the Usage Agreement and it has (or the relevant motor dealer, fleet and/or rental company or auction house it is acting on behalf of has) the right to offer for sale any vehicle advertised by it on the Smart Buying Platform;
- it will only use Portal and the Smart Buying Platform in accordance with these Conditions and shall only supply Materials which comply in all respects with these Conditions;
- all Materials are complete, accurate, legal, non-defamatory, decent, honest and truthful and comply with the British Code of Advertising Practice, all other relevant codes under the general supervision of the Advertising Standards Authority and all current relevant legislation and the Advertising Guidelines;
- it shall comply with all current applicable legislation, advertising codes and any other regulatory requirements, including without limitation the Consumer Rights Act 2015, Consumer Protection from Unfair Trading Regulations 2008 and The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing and the Financial Conduct Authority’s Consumer Credit Sourcebook;
- it contracts with Autostock as a principal (notwithstanding that the User may be acting as an advertising agent or in some other representative capacity) and the User has the legal right to offer for sale any vehicle, product or service advertised by it on the Smart Buying Platform;
- where the User is an advertising agency or another representative, that it is authorised to place the Advert;
- the reproduction and/or publication of any Advert and its content (including but not limited to any Materials contained in the Advert) by Autostock and/or the use of the User’s logo and trade marks on the Smart Buying Platform will not: breach any contract; infringe any third party Intellectual Property Rights; render Autostock liable to any proceedings whatsoever; and/or harm or detriment the reputation of Autostock;
- the Advert will not contain any copy photographs or videos by which any living person is or can be identified; and
- any individual purchasing products or services from Autostock pursuant to the Usage Agreement on behalf of the User accepts and confirms that it has the User’s primary decision-maker’s permission.
- The User agrees to observe and comply with all applicable regulations and legislation, including obtaining all necessary customs, import or other permits to sell and/or purchase goods advertised on the Smart Buying Platform. Autostock makes no representation and accepts no liability in respect of the export or import of the goods advertised on the Smart Buying Platform or in alerts such as emails sent to the User by Autostock.
- Autostock uses reasonable endeavours to ensure that this platform is accessed and used only by professional members of the motor trade. However, Autostock strongly advises the User to confirm with the party it is intending to transact to verify their trade status and to obtain the full particulars of any vehicle advertised for sale and how payment for any vehicle is to be made.
- The User shall pay to Autostock the Charges on or before the due date, which shall be 30 days from the date of invoice unless notified otherwise. Time for payment is of the essence. Autostock may use third parties, including Auto Trader for invoicing and the collection of Charges.
- The Charges are exclusive of VAT which shall be payable by the User in addition.
- The User shall pay all sums due to Autostock under the Usage Agreement without any set-off, deduction, counterclaim and/or other withholding of monies. The existence of a query on an individual item in an account shall not affect the due date of payment of the remaining balance in an account.
- If the User fails to make full payment by the due date, then all monies owing by the User to Autostock shall immediately become due and payable. Payment terms may vary if payment is made by Direct Debit and agreed in writing by Autostock. Any discount, which is extended to a User who pays the Charges by Direct Debit, is at the sole discretion of Autostock and may be withdrawn by Autostock at any time and for any reason.
- In the event the Direct Debit mandate is cancelled by the User or the User’s bank, Autostock reserves the right to suspend Smart Buying immediately. If the mandate is not reinstated and payment of all outstanding amounts has not been made within 7 days of the cancellation, Autostock may continue to suspend Smart Buying or terminate the Usage Agreement immediately without notice. Autostock reserves the right to charge an administration fee, each month, for payments not made by Direct Debit.
- If the Direct Debit mandate is cancelled by the User or the User’s bank on two or more occasions in a six month period and/or is repeatedly cancelled, Autostock shall be entitled to reduce the credit terms and all monies owing by the User to Autostock shall be due and payable on the date of invoice. In such circumstances a payment card will be required to be stored against the account and payment will be automatically charged.
- Autostock shall be entitled to take a 4-week pre-payment from the User as security against future Charges payable. Where Autostock takes a pre-payment, Autostock shall be entitled to retain this for a maximum period of 6 months or, until valid termination of the Usage Agreement and payment of all outstanding sums due to Autostock (whichever is the earlier). The pre-payment shall not be used to discharge any Charges due by the User in respect of Smart Buying unless expressly detailed by Autostock in writing. The User shall be liable to pay all Charges to Autostock in accordance with clause 6.1 above. Should the User opt to cancel the Usage Agreement, the User will be obliged to pay an administration fee (as determined by Autostock) in addition to a further 4 week pre-payment in order to reactivate Smart Buying at a future date.
When a sum owing has not been received in full by Autostock within 30 days from the date of invoice, or within specified terms of contract, Autostock shall be entitled (without prejudice to any other right or remedy it may have) to:
- charge the User interest on any unpaid sums (both before and after judgment) at the current statutory rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 and related secondary legislation as amended or re-enacted from time to time; and
- suspend or terminate all products and services (including without limitation Smart Buying) provided to the User pursuant to any agreement with Autostock (or any part of them) until payment has been received in full (including any interest payable pursuant to clause 6.8.1 above).
- If the User genuinely disputes an invoice, the User must notify Autostock within 7 days of the date of invoice. If the User fails to notify Autostock within this time period, payment in full shall be due and Autostock shall have the rights and remedies set out in clause 6.8 above.
- Unless Autostock authorises payment to be made by Direct Debit, payment must be sent to the address on the invoice and any payment sent by post shall be at the User’s sole risk. All cheques must be payable to Autostock unless notified otherwise. Autostock reserves the right to decide the amount of any credit extended to the User in its sole discretion and Autostock shall be entitled to withdraw credit facilities from the User at any time without reason.
- Autostock will under no circumstances be liable to refund all or any part of the Charges (including but not limited to any pre-payment) in the event of the suspension of Smart Buying and/or cancellation or termination of the Usage Agreement (for any reason).
- Autostock shall have the right to change the Charges at any time and for any reason on not less than 30 days’ written notice to the User, after which the amended Charges shall apply.
- Any free trials of any products available via Smart Buying shall be offered by Autostock at its sole discretion.
INTELLECTUAL PROPERTY RIGHTS
The User grants Autostock a non-exclusive, irrevocable, perpetual, worldwide and royalty free licence to:-
- use, process, analyse, publish, reproduce and share the Data and Materials with third parties; and
- create, use and publish any derivatives of the Data or the results of any analysis of the Data for any purpose, including within other products and to share the same with other customers of Autostock and third parties in both aggregated and non-aggregated form.
- The creation and analysis of Data may require the enhancement, filtering, amendment and/or alteration of the Stock Information which may require Autostock’s use or the incorporation of third party material used under licence by Autostock. Therefore, both Autostock and/or its licensors may acquire Intellectual Property Rights in the Data.
- The User acknowledges that in the event Autostock alters the Stock Information provided by the User and/or creates or incorporates Supplemental Information to enhance the Stock Information then the Data shall become a work of joint copyright co-owned by the User and Autostock. To the extent that any such joint Intellectual Property Rights are not automatically vested in Autostock, the User hereby assigns to Autostock all such rights.
- The User acknowledges and agrees that all trademarks, names or logos of Autostock (including without limitation the trade marks “Autostock” and “Smart Buying”) and all Intellectual Property Rights in the Smart Buying Platform (including the content and Autostock’s database of vehicles) together with all goodwill arising out of or in connection with these, belong to Autostock and/or its licensors (as appropriate) and nothing in the Usage Agreement confers on the User any licence or right to use the same except as expressly set out in the Usage Agreement.
- The User warrants that it has all necessary rights, licences and consents for Autostock to publish and/or use Materials (including, for the avoidance of doubt, any Stock Information you have obtained from third parties) as part of an Advert or otherwise in the provision of Smart Buying in accordance with this Usage Agreement.
- Autostock has no liability or responsibility of any kind for the accuracy or content of any information or any other aspect of any third party website (including but not limited to Third Party Websites) and the inclusion of hypertext links to such websites does not imply any endorsement of the material contained on such websites or of the owners. Where there is any hypertext on the Smart Buying Platform linked to any website operated by any third party, Autostock accepts no responsibility or liability arising in respect of any content on such website. When a User accesses any other website from the Smart Buying Platform it acknowledges and agrees that it is independent from the Smart Buying Platform and that Autostock has no control over the content or availability of that website.
- Third party banner advertisements, pop-up advertisements and other virtual advertising may be experienced whilst using the Smart Buying Platform. Such third party advertisements may not have been approved by Autostock and may appear on the website without its knowledge or consent, and Autostock accepts no responsibility or liability in respect of the content or display of any such third party advertisements.
- Autostock does not permit any links to be made to the Smart Buying Platform without its written permission.
- Hypertext links to Smart Buying Platform on non-consumer facing sites only may be made without the need for Autostock’s written consent, provided there is no express or implied endorsement or sponsorship of the User, its commercial entity or any other website by Autostock. Autostock may at any time and for any reason require the User to remove any hypertext links to the Smart Buying Platform from any website controlled by the User.
- Autostock is permitted to reproduce and publish (or to permit the same) all or any part of any Adverts or any analysis derived from those Adverts (including without limitation the reproduction and publication of copy, artwork, videos and photographs and other materials) and to include and/or share them on the Smart Buying Platform [and Third Party Websites] and within other Autostock products and with other third party partners.
- The User agrees that it will give all necessary assistance to Autostock and complete all acts as may reasonably be required by Autostock to enable it to protect and enforce its Intellectual Property Rights and those of its licensees against third parties.
DATA PROTECTION AND CREDIT REFERENCE CHECKS
- The User and Autostock warrants to the other that it shall comply with the provisions of the Data Protection Act 2018, the General Data Protection Regulations, and any amendments, updates or successors, laws and regulations to these; in so far as the Usage Agreement relates to or involves the processing of Personal Data (as defined in the Data Protection Act 2018).
- Autostock may disclose any information that it collects to other companies within its group, to third parties whose products and/or services Autostock think may be of interest to the User, to credit reference agencies, finance companies, fraud prevention agencies, the police, the Financial Conduct Authority and/or any other regulatory authorities.
- The User acknowledges and agrees that in entering the Usage Agreement, Autostock may carry out credit reference checks on the User and/or any individual employed or otherwise engaged by the User. Autostock reserves the right, at its sole discretion, to refuse to provide any products or services to the User, including without limitation Smart Buying, if in Autostock’s sole opinion any credit reference results are unsatisfactory.
CANCELLATION AND TERMINATION
- The Usage Agreement shall continue in force unless or until terminated by either party in accordance with these Conditions.
- Subject to clause 10.3 below, the User shall be entitled to terminate the Usage Agreement, downgrade their Smart Buying functionality or cancel Smart Buying by giving notice in accordance with this clause 10.2. The User should telephone Auto Trader, on behalf of Autostock, on 0345 111 0002 to inform them of its intentions. If, having made such phone call, the User continues to want to terminate the Usage Agreement, downgrade their Smart Buying functionality or cancel Smart Buying the User shall give not less than 30 days’ notice in advance of the end of a calendar month in writing to Autostock sent to Autostock, 5th Floor, 1 Tony Wilson Place, Manchester M15 4FN or by email to Auto Trader, on behalf of Autostock, at firstname.lastname@example.org. Therefore, if the User serves notice to cancel or downgrade part way through a subscription month, it will be required to pay the full Charges applicable for the remainder of the current subscription month plus one additional subscription month. Any notice must state the User’s account number and the exact products being terminated (where applicable). It is a condition of the Usage Agreement that any attempt to terminate the Usage Agreement verbally shall be ineffective. If the User pays Charges by standing order and wishes to terminate the Usage Agreement, downgrade their Smart Buying functionality or cancel Smart Buying in accordance with this clause, it is the User’s sole responsibility to contact its bank to cancel or amend the standing order. Standing orders can only be cancelled or amended by the account holder of the paying bank account and therefore it is beyond Autostock’s control to cancel or amend its standing order and it is not normally able to offer refunds if the User omits to do so.
- The User is solely responsible for ensuring that Autostock receives any notice of cancellation or termination or any other items sent to Autostock in connection with this Usage Agreement. Receipt by Autostock will only be confirmed when Autostock sends written confirmation to the User.
- In the event the User breaches payment terms and/or where the User has chosen a pre-payment option and the pre-paid funds are insufficient to cover the User’s accrued sum of Charges, Autostock shall be entitled to serve a formal Notice of Termination of the account in writing, allowing the User 7 days to remedy any such breach and/or deficient funds. This is without prejudice to any other rights available to Autostock.
- Autostock shall be entitled to terminate the Usage Agreement and/or the provision of Smart Buying at any time on 7 days’ written notice to the User for convenience.
Autostock shall be entitled at its sole discretion to immediately suspend or terminate the Usage Agreement and/or Smart Buying on the giving of notice by telephone, email or by letter to the User where:
- the User breaches the terms of the Usage Agreement (and, if the breach is capable of remedy, has not remedied the breach within 30 days of receiving notice requiring the breach to be remedied);
- the User commits a material breach of the Usage Agreement;
- the User persistently breaches any one or more terms of the Usage Agreement;
- the User is in breach of any other agreement with Autostock and/or is in legal proceedings with Autostock in respect of any other agreement;
- the User ceases, or threatens to cease, to carry on its business;
- the User is or is deemed to be unable to pay its debts as they fall due or is insolvent, suspends making payments on any debts or announces an intention to do so, is declared bankrupt, convenes a meeting of its creditors or if a proposal shall be made for a voluntary arrangement or for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or a receiver, administrator, administrative receiver, trustee or other similar officer is appointed over any of its property or assets or a meeting is convened for the purpose of considering a resolution or other steps are taken for winding up the User (whether by the presentation of a winding up petition or otherwise or for the making of an administration order (other than for the purposes of solvent amalgamation or reconstruction) or any similar action or steps are taken in any jurisdiction in relation to any of the above;
- the User is refused credit by Autostock and/or another company within the Autostock group;
- Autostock receives persistent complaints about Adverts placed by the User and/or regarding the User’s business practices;
- the User commits a criminal offence (other than a road traffic offence that does not carry a custodial sentence) and/or any offence which involves fraud or dishonesty;
- the User acts in a way which exposes Autostock and/or any users of the Smart Buying Platform to financial loss and/or legal liabilities and/or in a way which Autostock reasonably believes may be detrimental to the reputation and/or business of Autostock and/or any other company in Autostock’s group;
- in the reasonable opinion of Autostock, the User and/or its employees have been abusive to Autostock’s staff or Autostock receives a complaint from a third party regarding the User’s conduct in the sale or purchase of an advertised vehicle;
- the User has provided false information, opened an account with Autostock in another individual’s name or has otherwise acted dishonestly in their dealings with Autostock; and/or
- the User or someone associated with the User has used Smart Buying, the Smart Buying Platform and/or Portal illegally or fraudulently.
Autostock may at its sole discretion immediately suspend provision of Smart Buying, terminate Smart Buying or downgrade the User’s Smart Buying functionality and/or remove any or all Adverts submitted by the User from the Smart Buying Platform, where:
- the User fails to comply or, Autostock reasonably suspects the User is not complying, with the Advertising Guidelines, clause 5.1 and/or clause 5.7; and/or
- any competent law enforcement or compliance authority instructs, advises or makes a recommendation to Autostock to take down any of the User’s content and/or suspend the delivery of any of Smart Buying to the User.
- Termination of the Usage Agreement shall be without prejudice to any rights accrued by Autostock prior to termination and the User shall repay Autostock on a full indemnity basis for all costs and expenses (including administration and legal costs) incurred by Autostock if the User changes address and fails to notify Autostock and/or in recovering any sums due to it under the Usage Agreement.
LIABILITY AND INDEMNITY
- Autostock shall provide Smart Buying with reasonable care and skill and in a professional and timely manner. Any Adverts on the Smart Buying Platforms created by or on behalf of Autostock, shall be designed materially in accordance with the Materials. However, the User acknowledges and accepts that it is technically impossible to provide the Smart Buying Platform, Portal and Smart Buying free of faults, interruptions or errors and that Autostock does not undertake to do so. Autostock shall have no responsibility or liability arising out of or about any communications or network defects, delays or failures (whether temporary or otherwise) (a) experienced by the User or any third party while accessing any Autostock platform and/or Portal; and/or (b) which impact on any product.
- Where Autostock is transferring User information to any third party about Smart Buying, including but not limited to owners of the Third Party Websites, Autostock will use its reasonable endeavours to transfer such information accurately and without corruption or errors. However, the User acknowledges that it is technically impossible to guarantee continuity of service or corruption-free or error-free transfer. Autostock’s sole liability under this clause is to liaise with the relevant third party and to re- transfer the relevant information.
- Any credits offered to the User in respect of faults in the operation of the Smart Buying Platform shall only be payable by Autostock at its sole discretion and in any event for a maximum period of four weeks unless there is proven to be (to Autostock’s reasonable satisfaction) an ongoing fault.
- From time to time, Autostock will need to carry out maintenance work on its equipment and systems, and shall use its reasonable endeavours to ensure that, in doing so, reasonable notice is given and minimum disruption to the Smart Buying Platform and/or Portal is caused. However, the User acknowledges that Autostock cannot guarantee that the Smart Buying Platform and/or Portal will be continuously available. For the avoidance of doubts, no credits shall be offered to the User in respect of interruptions to the Smart Buying Platform and/or Portal arising as a result of maintenance work and/or due to circumstances outside of Autostock’s reasonable control.
- The User acknowledges that where Autostock has transferred or otherwise transfers information to and/or an Advert is placed on a third party website (including without limitation a Third Party Website) display of any such information and/or Advert on the third party website is the responsibility of the relevant third party and Autostock has no responsibility for the acts and/or omissions of the third party in question (including but not limited to any failure by the third party to place an Advert on its website and/or any disruption to the third party website). The User shall promptly notify Autostock if the agreement between the User and any such third party is terminated whereupon Autostock shall be entitled to cease to transfer information to such third party.
Autostock does not monitor or control and shall not be responsible for, and shall have no liability to the User and any third party in respect of:
- the content of Adverts and/or Materials (including any errors or inaccuracies) posted by the User and/or any third party or the User’s rights in or to the Materials;
- any goods or services advertised on the Smart Buying Platform or which we send to you email (and it is the User’s responsibility to satisfy itself as to the quality and nature of any goods to be purchased by it using the Smart Buying Platform);
- any payment for goods or services advertised on the Smart Buying Platform or which we send to you by email (and it is the User’s responsibility to satisfy itself as to the validity of any payment for goods sold by it using the Smart Buying Platform); and/or
- any feedback content submitted on the Smart Buying Platform, and the User agrees that such matters are its sole responsibility.
- Adverts placed in Portal will automatically expire after 14 days if no changes or amendments are made to the Advert. Adverts placed by way of data feed will automatically expire after 180 days if no changes or amendments are made to the Advert.
Subject to clause 11.10 below, Autostock shall not be liable to the User:
- for any loss or damage suffered by the User arising out of or about any total or partial failure to publish an Advert and/or for removing any Materials or Data from the Smart Buying Platform and/or Portal;
- for any loss or damage suffered by the User arising out of or about a failure by the User to keep safe and confidential all passwords, security identification and/or encryption details. The obligation to keep details secure includes the requirement that the User only submits its details to access the Autostock log in page that uses Extended Validation SSL;
- for any loss or damage suffered by the User arising out of the User’s use or inability to use the Smart Buying Platform or any action or inaction occurring as a result of using the Smart Buying Platform (including any decisions and/or actions that the User takes based on and/or in reliance of any data Autostock provide to the User through Auction Profiler);
- for any loss or damage suffered by the User arising out of the supply by the User of any inaccurate, incomplete, illegible or incorrect information for the purposes of the Smart Buying Platform (including Auction Profiler);
in contract, tort (including without limitation negligence), statutory duty or otherwise arising out of or about the Usage Agreement (including arising out of any Advert placed or arising out of any goods or services sold or purchased using the Smart Buying Platform) for:
- consequential, indirect or special loss or damage;
- any loss of goodwill or reputation;
- loss of contracts, business and/or opportunity;
- loss of profits;
- loss of revenue or anticipated savings;
- business interruptions;
- loss of or corruption to data howsoever caused (including caused as a result of e-crime attacks by third parties); and/or
- any economic and/or other similar losses;
- unless a claim is brought by the User against Autostock within 3 months of the date of the cause, or first in the series of causes of related events, giving rise to the claim.
- Subject to clause 11.10 below, the total aggregate liability of Autostock in contract, tort (including without limitation negligence), statutory duty or otherwise (unless otherwise excluded), in respect of all claims arising under or in connection with the Usage Agreement shall not exceed 125% of the monthly charge paid for Smart Buying.
- Nothing in the Usage Agreement shall exclude or restrict any liability Autostock may have for death or personal injury caused by its negligence, for fraudulent misrepresentation and/or for any other liability which it is not permitted to exclude by law.
Any warranties, terms or conditions of any kind (including in respect of the Smart Buying Platform, any goods or services advertised on the Smart Buying Platform or in any Autostock alerts (e.g. emails) and/or any data Autostock provides to the User through Auction Profiler) whether express or implied, statutory or otherwise are hereby expressly excluded to the maximum extent permitted by law, including without limitation:
- implied terms of satisfactory quality or fitness for purpose;
- any warranty that any information contained on the platform and/or provided to the User through Auction Profiler is accurate or complete; and
- any warranty that any data Autostock provides to the User through Auction Profiler does not infringe the intellectual property rights or other rights of a third party.
- The User shall indemnify and keep Autostock fully indemnified against all claims, costs, proceedings, demands, losses, damages, expenses or liability whatsoever arising out of or in connection with any breach of the Usage Agreement by the User, any third party complaints or claims brought against Autostock in respect of any Advert or Materials, any claim that the use by Autostock of any Materials infringes any third party Intellectual Property Rights or other third party rights and/or any third party claim against Autostock relating to the sale and/or purported sale of a vehicle by the User including where the User has failed to fulfil any offer accepted by it, or relating to the purchase and/or purported purchase of a vehicle where the User has made an offer which has been accepted but not subsequently fulfilled.
- Without prejudice to the liability of the User to pay the relevant Charges for any Usage Agreement in full by the relevant due date, in the event of any error, misprint or omission in an Advert, Autostock may at its sole discretion, either amend the relevant part of the Advert or refund or adjust the Charges. No amendment, refund or adjustment to the Charges will be made where in Autostock’s sole opinion the error, misprint or omission does not materially detract from the Advert or where it arises because of incorrect or inadequate information provided by the User.
- Autostock shall not be liable to the User and/or be deemed to be in breach of the Usage Agreement by reason of any delay in performing and/or any failure to perform its obligations under the Usage Agreement if the delay and/or failure is due to any cause beyond Autostock’s reasonable control (including but not limited to any act of God, lock out or other industrial action, governmental action or restriction, war, terrorism, cyber-attack, fire, flood, infrastructure failure, power failure, strike or civil commotion, interruptions in electrical or telecommunications services or delays or failures of the internet or other communications systems necessary for the provision of Smart Buying) and time for performance of that obligation shall be extended accordingly.
- The Usage Agreement contains the entire agreement and understanding between the parties and supersedes all prior agreements, arrangements, statements and understandings between the parties relating to the subject matter of the Usage Agreement. Each party acknowledges that it has not entered the Usage Agreement in reliance upon any representation not expressly set out in the Usage Agreement and neither party shall be liable in respect of any representation made prior to and not contained in the Usage Agreement. Nothing in these Conditions shall exclude or limit Autostock’s liability for fraudulent misrepresentation.
- The Usage Agreement is personal to the User, and the User may not assign or transfer the Usage Agreement without the prior written consent of Autostock. Autostock reserves the right to assign or subcontract the Usage Agreement and any of its rights and obligations under the Usage Agreement to a third party.
- Where two or more persons are named on the Usage Agreement as the User, their liability shall be joint and several.
- Except as set out in these Conditions, no variation of the Usage Agreement shall be binding unless agreed in writing and signed by an authorised representative of Autostock.
- No failure or delay by Autostock to exercise any right or remedy under the Usage Agreement shall constitute a waiver of that right or remedy nor shall it prevent or restrict the further exercise of that right or remedy. No single or partial exercise by Autostock of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- If any provision of the Usage Agreement is found by any competent authority to be invalid, unlawful or otherwise unenforceable then such provision shall be severed from the remaining provisions in the Usage Agreement which shall continue to be valid and enforceable fully permitted by law.
- Nothing in the Usage Agreement shall confer any rights or benefits, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person other than the User and Autostock.
- The Usage Agreement shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.