Terms and Conditions

Web Tracker

Please read these Conditions carefully as they govern your use of Web Tracker. The Publisher may modify these Conditions from time to time and you should therefore ensure that you review these Conditions regularly.

  1. INTERPRETATION
    1. In these Conditions the following words shall have the following meanings:

      “Addendum” means a completed form signed by both parties which varies the original Agreement and/or forms a new agreement with the Publisher for Web Tracker and which incorporates and is subject to these Conditions;

      “Advertiser” means the person, firm or company who purchases Web Tracker from the Publisher;

      “Agreement” means any agreement for the provision of Web Tracker incorporating these Conditions, the Application Form and/or Addendum (where appropriate);

      “Application Form” means a completed form signed by both parties setting out the details of the Advertiser and Web Tracker to be provided by the Publisher which incorporates and is subject to these Terms and Conditions;

      “Auto Trader Website” means the website located at www.autotrader.co.uk;

      “Charges” means the weekly charges to be paid by the Advertiser for Web Tracker as set out in the Application Form or Addendum (as appropriate);

      “Commencement Date” means the commencement date set out in the Application From or, if no such date is set out, the date that access to Web Tracker is initiated for the Advertiser;

      “Conditions” means the Web Tracker terms and conditions as set out in this document;

      “Confidential Information” means any trade secrets and non-public information including (but not limited to) any and all financial, technical, operational, commercial, staff, management and other information, data, experience and know-how, customer and supplier information and databases, business strategies, business plans, internal systems, concepts and test results, software, products and/or services;

      “Dealer Portal” means the dealer portal section of the Auto Trader Website;

      “Intellectual Property” means any and all patents, registered trade marks, registered designs, applications for any of the foregoing, database rights, trade and business names, unregistered trade names, logos, know-how, trade secrets, copyrights, rights in unregistered design, inventions, rights under licences and consents in relation to any such rights and rights of the same or similar effect or nature, together with all goodwill attaching or relating thereto, wherever in the world arising (whether or not capable of protection by registration);

      “New Release” means a release of Web Tracker which corrects faults, adds functionality or otherwise amends or upgrades Web Tracker but does not constitute a New Version;

      “New Version” means any new version of Web Tracker which is supplied by the Publisher as part of the Services to the Advertiser and which does not require a purchaser to already use a version of Web Tracker;

      “Parties” means the Publisher and the Advertiser and “Party” means any one of them;

      “Publisher” means Auto Trader Limited, Company Number: 03909628, whose registered office is at Auto Trader Limited, 1 Tony Wilson Place, Manchester, M15 4FN;

      “Server” means any hardware server on which the Publisher may install Web Tracker for use by the Advertiser and which the Advertiser may access through the Internet;

      “Services” means the provision by the Publisher of such services as requested by the Advertiser on the Application Form and/or Addendum ;

      “System” means the Web Tracker system;

      “Web Tracker” means the automated web tracking system provided by the Publisher (under licence from Maxsi Limited) and used by the Advertiser;

      “Web Tracker Reports” means any reports, statistics, data and/or other information generated by web Tracker;

      “Writing” includes facsimile transmission, electronic mail and comparable means of communication.

    2. In these conditions, unless the context otherwise requires: words importing any gender include every gender; words importing the singular include the plural and vice versa; references to numbered clauses are references to the relevant clause in these Conditions; and the headings to the clauses will not affect their interpretation.
    3. In the case of any conflict or ambiguity between any provision contained in these Conditions and any provision contained in an Application Form or Addendum, the provision in the Application Form or Addendum shall take precedence. In the case of any conflict or ambiguity between any provision contained in the Application Form and any provision contained in an Addendum, the provision in the Addendum shall take precedence.
  2. AGREEMENT
    1. Each Agreement that is agreed between the parties will form a separate contract for Web Tracker on and subject to these Conditions.
    2. The Advertiser’s order for Web Tracker shall be deemed to be an offer by the Advertiser to acquire Web Tracker subject to these Conditions which shall apply to the Agreement to the exclusion of all other terms and conditions (including any terms or conditions which the Advertiser purports to apply to any purchase order, confirmation of order, specification, or other document and any terms and conditions previously provided by the Publisher) unless the Publisher has expressly agreed to the contrary in writing.
    3. Each order or acceptance of a quotation for Web Tracker shall be deemed to be an offer by the Advertiser to purchase Web Tracker subject to these Conditions. No order placed by the Advertiser shall be deemed to be accepted by the Publisher until an Application Form or Addendum (as appropriate) is signed by the Publisher or, if earlier, the Publisher commences the provision of Web Tracker.
    4. The Advertiser shall ensure that the terms of its order and any applicable specification are complete and accurate.
    5. Any quotation is given on the basis that no Agreement shall come into existence until the Publisher signs an Application Form or Addendum (as appropriate). Any quotation is valid for a period of 30 days only from its date, provided that the Publisher has not previously withdrawn it.
    6. The Publisher shall be entitled to modify these Conditions at any time and any such modifications are effective immediately from the time they are notified to the Advertiser. Display of the modified Conditions on the Dealer Portal shall be deemed to be notice to the Advertiser. The Advertiser agrees to review the Conditions regularly to ensure they are aware of any modifications.
  3. WEB TRACKER
    1. In consideration of payment of the Charges by the Advertiser in accordance with clause 5, the Publisher will provide the Advertiser with access to Web Tracker.
    2. The Publisher grants to the Advertiser a personal, non exclusive, non-transferrable and revocable licence to use Web Tracker, and Web Tracker Reports strictly in accordance with the terms of the Agreement.
    3. Details of Web Tracker may be separately set out by the Publisher from time to time on the Auto Trader website at www.autotrader.co.uk and/or as otherwise provided by the Publisher to the Advertiser.
    4. The Publisher shall provide the Advertiser with a user login and password to access Web Tracker. The Advertiser is solely responsible for maintaining the confidentiality and security of its account with the Publisher including details of its unique login and password and shall immediately notify the Publisher if it becomes aware of any security threat.
    5. If the Advertiser requests an upgrade of its subscription to Web Tracker, the Advertiser shall sign an Addendum. Where both parties have signed an Addendum, all references in these Conditions to “Application Form” shall be read to mean the Addendum. Except as expressly amended by any Addendum, the original Agreement shall remain in full force and effect. For the avoidance of doubt, if the Advertiser wishes to downgrade its subscription to Web Tracker notice will be required to be given in accordance with clause 10.2.
    6. The Publisher may replace Web Tracker with a New Release or a New Version as part of the Services at any time.
    7. The Publisher reserves the right to change the Server to another hardware server as part of the Services at any time.
    8. The Publisher will send notification of any changes to the Services as set out in clauses 3.6 and 3.7, in advance wherever possible, by email to the Advertiser.
  4. ADVERTISER OBLIGATIONS AND WARRANTIES
    1. The Advertiser warrants that it shall:
      1. only use Web Tracker within the United Kingdom;
      2. use Web Tracker solely for its business purposes within the motor industry and shall not use Web tracker to provide a service to any third party (including without limitation to provide reports for any business other than the Advertiser’s business);
      3. use Web Tracker strictly in accordance with this Agreement and with any other instructions given by the Publisher to the Advertiser from time to time. The Advertiser shall permit the Publisher, at all reasonable times to verify that use of Web Tracker is within the terms of the Agreement.
      4. not distribute any Web Tracker Reports and/or information generated by Web Tracker to any third party;
      5. not distribute, sell, rent, loan, lease, sub-licence or otherwise deal in Web Tracker;
      6. not copy Web Tracker;
      7. not alter, adapt, merge, modify, and/or translate Web Tracker in any way for any purpose, including without limitation, for error correction;
      8. not reverse engineer, disassemble and/or decompile Web Tracker except to the extent as may be permissible by law;
      9. not copy any instructional and/or operational manuals relating to Web Tracker;
      10. not remove, alter and/or obscure any copyright and/or notices of proprietary rights and restrictions on or in Web Tracker;
      11. not request, permit or authorise anyone other than the Publisher to provide any support in respect of the Services;
      12. co-operate fully with the Publisher’s personnel in the diagnosis of any error or defect in the Software;
      13. not use Web Tracker for any activity that infringes applicable laws and/or regulations;
      14. not incorporate and/or link Web Tracker to any other services and/or products without the Publisher’s prior written consent;
    2. The Advertiser shall immediately notify the Publisher if it becomes aware of any unauthorised use of Web Tracker by any person.
    3. The Advertiser indemnifies and shall keep the Publisher fully indemnified from and against any and all costs, losses, liabilities and expenses (including legal costs on an indemnity basis) arising from any claim relating to or resulting directly or indirectly from any breach of the warranties given by the Advertiser in clause 4.1.
    4. To enable the Publisher supply the Services to the Advertiser, the Advertiser shall perform the following obligations as set out below, to the extent that such obligations relate to such elements of the Services as selected by the Advertiser.
    5. The Advertiser shall:

      Provision of Accurate Details

      1. ensure that all information has been entered onto the System or provided to the Publisher in respect of telephone details at the Commencement Date;
      2. as soon as possible, where a Advertiser is aware of a change or alteration to any information supplied, to update such information by entry of such information onto the System or by the supply of such information to the Publisher;

      Contact

      1. to provide the Publisher with the details of the person who the Publisher may communicate with regarding the Services or these Conditions;

      Security

      1. to keep confidential all passwords relating to access of the Systems and use reasonable endeavours to ensure that all employees, agents and sub-contractors of the Advertiser who may have been supplied such passwords are similarly bound by such obligations of confidentiality;
      2. to regularly change such passwords or where relevant to instruct the Publisher to change such passwords;
      3. to change such passwords where an employee of the Advertiser ceases to be employed by the Advertiser; and

      General

      1. to comply with all other obligations of the Advertiser pertaining to the Services as contained in these Conditions.
  5. FEES AND PAYMENT
    1. In consideration of the supply of the Services by the Publisher, the Advertiser will pay the Charges to either the Publisher as indicated on the Application Form on or before the agreed due date, which shall be 30 days from the date of invoice unless notified otherwise. Time for payment is of the essence.
    2. The Charges are exclusive of VAT which shall be payable by the Advertiser in addition.
    3. The Publisher shall not be bound to deliver the Services until the Advertiser has paid for them.
    4. The Advertiser shall pay all sums due to the Publisher under the Agreement without set-off, deduction counterclaim and/or other withholding of monies. The existence of any query on an individual item in an account shall not affect the due date of payment of the remaining balance in an account.
    5. If a Advertiser fails to make a payment by the due date then all monies owing by the Advertiser to the Publisher shall immediately become due and payable. Payment terms may vary if payment is made by Direct Debit and agreed in writing by the Publisher. Any discount, which is extended to a Advertiser who pays the Charges by Direct Debit, is at the sole discretion of the Publisher and may be withdrawn by the Publisher at any time and for any reason.
    6. Where the Advertiser takes the pre-payment option as agreed with the Publisher, an 8 week initial pre-payment is required from the Advertiser before access to Web Tracker is initiated. The Advertiser shall be solely responsible for ensuring that sufficient funds have been paid in advance of the chargeable period. Should the Advertiser opt to terminate the Agreement, the Advertiser will be obliged to pay an administrative fee (as determined by the Publisher) in addition to a 4 week pre-payment in order to reactivate access to Web Tracker on a subscription basis.
    7. When a sum owing has not been received in full by the Publisher within 30 days from the date of invoice, the Publisher shall be entitled (without prejudice to any other right or remedy it may have) to:
      1. charge the Advertiser interest on any unpaid sums (both before and after judgement) 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
      2. suspend any services (including without limitation subscription to Web Tracker) provided to the Advertiser pursuant to any agreement with the Publisher (or any part of them) until such time as payment has been received in full (including any interest payable pursuant to clause 5.7.1 above).
    8. Unless the Publisher 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 Advertiser’s sole risk. All cheques must be payable to Auto Trader Limited unless notified otherwise. The Publisher reserves the right to decide the amount of any credit extended to the Advertiser in its sole discretion and the Publisher shall be entitled to withdraw credit facilities from the Advertiser at any time.
    9. The Publisher 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 Web Tracker and/or termination of the Agreement (for any reason).
    10. The Publisher shall have the right to change its scale of charges at any time and for any reason. If the Publisher changes the Charges during the term of the Agreement, the charges in force at the date of the Agreement shall continue to apply to such Agreement for a period of four weeks following notification by the Publisher in writing of any such change, after which the amended charges shall apply.
    11. The Publisher shall have the right to change its scale of charges at any time and for any reason. If the Publisher changes it charges during the term of the Agreement, the charge in force at the date of the Agreement shall continue to apply to such Agreement for a period of four weeks following notification by the Publisher of any such change, after which the amended charges shall apply.
  6. INTELLECTUAL PROPERTY RIGHTS
    1. The Advertiser acknowledges and agrees that any and all Intellectual Property Rights in Web Tracker (including underlying software, object code and source code) and in the Web Tracker Reports are and shall remain the sole property of the Publisher or its licensors (as appropriate) and the Publisher grants to the Advertiser a personal, non-exclusive and revocable licence to use such Intellectual Property Rights for the term of the Agreement.
    2. In the event that new investigations, designs or processes evolve in performance of or as a result of the Agreement, the Advertiser acknowledges that the same shall be the property of the Publisher or its licensors unless otherwise agreed in writing by the Publisher.
    3. The Advertiser acknowledges and agrees that nothing in the Agreement confers on the Advertiser any licence or right to use any trade marks, names or logos of the Publisher and/or its licensors except as expressly set out in the Agreement and that all Intellectual Property Rights in the trade marks and logos of the Publisher and the Web Tracker name and logos and in any databases created by the Publisher together with all goodwill arising out of or in connection with the same, belong to the Publisher and/or its licensors (as appropriate).
    4. If any action or claim is made by a third party that Web Tracker infringes the Intellectual Property Rights or other rights of a third party (“Intellectual Property Claim”) the Advertiser shall:
      1. promptly notify the Publisher in writing of the action or claim;
      2. make no admissions or settlements without the Publisher’s prior written consent;
      3. cooperate fully with the Publisher; and
      4. give the Publisher or, at the Publisher’s request, the Publisher’s complete control over the litigation and settlement of any action or claim and provide all information and assistance that the Publisher and/or its licensors might reasonably require.
    5. In the event of any Intellectual Property Claim, the Publisher shall be entitled at its own expense and option either to:
      1. procure the right for the Advertiser to continue using Web Tracker or the affected part;
      2. make such alteration, modifications or adjustments to Web Tracker so that it becomes non infringing without incurring a material diminution in performance or function; or
      3. replace Web Tracker or the affected part with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
  7. WARRANTY AND LIABILITY
    1. The Publisher warrants that it will provide the Advertiser with access to Web Tracker with reasonable care and skill.
    2. The Advertiser acknowledges that:
      1. software in general is not error-free and agrees that the existence of such errors shall not constitute a breach of this Agreement;
      2. it is the Advertiser’s responsibility to ensure that the facilities and functions of Web Tracker meet the Advertiser’s requirements;
      3. the results obtained by the Services will depend upon the environment in which the Services operate, including without limitation, the Advertiser’s website;
      4. Advertiser input is required to verify and, where necessary edit the output before any conclusion can be made from the results obtained;
      5. the Services are not provided for use as a certification tool; accordingly, the Publisher can give no warranty in respect of the results that are obtained as a result of the use and operation of Web Tracker or any conclusion drawn from such results.
    3. Apart from the warranty provided at Condition 7.1, and to the maximum extent permitted by law, the Publisher makes no other representations, warranties and/or conditions of any kind whether express or implied by statute, common law or otherwise including without limitation any warranty:
      1. that the Web Tracker Reports are accurate, fit for purpose and/or of a satisfactory quality; and/or
      2. that the Web Tracker Reports do not infringe any Intellectual Property Rights or other rights of a third party.
      3. Subject to clause 7.8 below, the Publisher shall have no liability to the Advertiser for any loss, damage, expense and/or other claims arising as a result of:
        1. the combination, operation and/or use of Web Tracker with other software or products not provided by the Publisher, if such infringement would have been avoided in the absence of such combination, operation or use;
        2. use of Web Tracker in any manner inconsistent with the Agreement;
        3. the supply by the Advertiser of any inaccurate, incomplete, illegible or incorrect information into Web Tracker;
        4. the failure of and/or interruption to Web Tracker if the failure and/or interruption was due to any act or omission of the Advertiser and/or the breakdown, interruption or service failure to any telecommunication or other communications system or any other system operated or under the control of the Advertiser;
        5. any communications or network defects, delays or failures experienced by the Advertiser in trying to access Web Tracker; and/or
        6. the Advertiser’s negligence and/or wilful misconduct.
    4. The Advertiser acknowledges and agrees that the Publisher cannot guarantee that Web Tracker will be continuously available online free of any faults, interruptions and/or errors and that from time to time there may be disruptions to the provision of Web Tracker in order to enable the Publisher and/or its licensors to carry out necessary maintenance work.
    5. Subject to clause 7.9 below, the Publisher shall have no liability to the Advertiser in respect of any decisions and/or actions taken by the Advertiser based on and/or in reliance of the Web Tracker Reports.
    6. Subject to clause 7.9 below, the Publisher shall not be liable to the Advertiser in contract, tort (including without limitation negligence), statutory duty or otherwise arising out of or in connection with the Agreement for: (a) consequential, indirect or special loss or damage; or (b) any loss of goodwill or reputation; (c) loss of contracts, business and/or opportunity; (d) loss of profits; (e) loss of revenue or anticipated savings; (f) business interruptions; (g) loss of or corruption of data howsoever caused (including caused as a result of e-crime attacks by third parties) and/or (f) any economic and/or other similar losses; and in each case such liability is excluded whether it is foreseeable, known, foreseen or otherwise and whether such losses are direct, indirect, consequential or otherwise.
    7. Subject to clause 7.9 below, to the total liability of the Publisher in contract, tort (including without limitation negligence), breach of statutory duty or otherwise arising out of or in connection with the Agreement (unless otherwise excluded), in respect of each event or series of connected events shall not exceed the aggregate of the Charges paid for Web Tracker in the three months’ immediately preceding the date on which the event giving rise to the liability occurred and the Publisher shall not be liable to the Advertiser unless a claim is brought by the Advertiser against the Publisher within 12 months of the date of the cuase, or first in the series of causes of related events, giving rise to the claim.
    8. Nothing in the Agreement shall exclude or restrict any liability the Publisher 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.
    9. The Advertiser shall indemnify and keep the Publisher fully indemnified against all claims, costs, proceedings, demands, losses, damages, expenses (including legal costs on an indemnity basis) or liability whatsoever arising out of or in connection with any breach of the Agreement by the Advertiser, its employees, sub-contractors, agents or otherwise.
    10. The Advertiser acknowledges and agrees that the exclusions and limitations of liability set out in these Conditions are reasonable in view of the fact that the Trackable Numbers are provided by third parties and the Web Tracker Reports are comprised of data supplied by third parties.
  8. DELIVERY
    1. Any dates quoted for delivery of the Systems and Services are approximate only and the Publisher shall not be liable for any delay in delivery of the Systems and Services howsoever caused. Times for delivery shall not be of the essence.
  9. RISK AND PROPERTY
    1. Risk of damage to or loss of any documents or other materials supplied by the Publisher shall pass to the Advertiser on delivery to the Advertiser’s premises.
    2. Notwithstanding delivery and passing of any documents or other materials supplied by the Publisher, the property in such documents or materials shall not pass to the Advertiser until the Publisher has received in cash or cleared funds payment in full of the Fees for the Services.
  10. TERMINATION
    1. Unless terminated earlier in accordance with these conditions, the Agreement shall continue in force for the period specified on the Application Form. If no such period is specified on the Application From, the Agreement shall remain in force unless or until terminated by either party in accordance with these Conditions.
    2. Subject to clauses 10.3 and 10.4 below, the Advertiser shall be entitled to terminate the Advertising Agreement, cancel all or any Advertising Services and/or downgrade the Advertising Services by giving notice in accordance with this clause 10.2. The Advertiser should telephone Auto Trader on 0345 111 0002 to inform them that they are intending to terminate the Advertising Agreement, cancel all or any of the Advertising Services and/or downgrade the Advertising Services. If, having made such phone call to Auto Trader, the Advertiser continues to want to terminate the Advertising Agreement, cancel all or any of the Advertising Services and/or downgrade the Advertising Services, the Advertiser shall give not less than 28 days’ notice in writing to the Publisher sent to the Dealer Support Administration Department at the address specified on the invoice, such notice not to expire prior to the end of the first 13 weeks of the Advertising Agreement or such other initial period as specified in writing by the Publisher (“Initial Period”). Any free periods of Advertising Services provided by the Publisher to the Advertiser under the Advertising Agreement shall not count towards the calculation of the Initial Period. Any notice must state the Advertiser’s account number and the exact Advertising Services being terminated. It is a condition of the Advertising Agreement that any attempt to terminate the Advertising Agreement verbally shall be ineffective.
    3. The provisions of this clause 10.3 and clause 10.4 shall only apply if the Advertiser has entered into the Advertising Agreement as part of a Manufacturer Endorsed Programme as solely indicated on the Advertising Agreement and/or Addendum. In such circumstances, clause 10.2 shall not apply and the Advertiser shall only be entitled to terminate the Advertising Agreement, cancel all or any Advertising Services and/or downgrade the Advertising Services by giving notice in accordance with clause 10.4.
    4. The Advertiser shall give not less than:
      1. 90 days’ notice in writing to the Publisher to terminate the Agreement or cancel all or any of the Advertising Services;
      2. 28 days’ notice in writing to the Supplier to downgrade the Services sent to the Dealer Support Administration Department at the address specified on the invoice, such notice not to expire prior to the end of any initial period specified in writing by the Publisher (“Initial Period”). Any notice must state the Advertiser’s account number and the exact Advertising Services being terminated. It is a condition of the Advertising Agreement that any attempt to terminate the Advertising Agreement verbally shall be ineffective.
    5. The Advertiser is solely responsible for ensuring that the Publisher receives any notice of cancellation or termination or any other items sent to the Publisher in connection with this Agreement. For the avoidance of doubt, the Publisher shall not be responsible for any notices or items sent using the Royal Mail or otherwise not sent by recorded/registered post or by fax or email to the correct number/address and clearly stating the Advertiser’s relevant account number.
    6. In the event that the Advertiser breaches payment terms and/or where the Advertiser has chosen a pre-payment option and the pre-paid funds are insufficient to cover the Advertiser’s accrued sum of Charges, the Publisher shall be entitled to serve a formal notice of termination of the account in writing, allowing the Advertiser 7 days to remedy any such breach and/or deficient funds. This is without prejudice to any previously accrued rights referred hereto.
    7. The Publisher shall be entitled to terminate the Agreement at any time on 7 days’ written notice to the Advertiser for convenience, or immediately on the giving of notice by telephone, fax, email or by letter to the Advertiser where:
      1. the Advertiser breaches the terms of the 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);
      2. the Advertiser commits a material breach of the Agreement;
      3. the Advertiser persistently breaches any one or more terms of the Agreement;
      4. the Advertiser is in breach of any other agreement with the Publisher and/or with any other company within Auto Trader Limited and/or is in legal proceedings with any such companies in respect of any other agreement;
      5. the Advertiser ceases, or threatens to cease, to carry on its business;
      6. the Advertiser (being a company) is unable to pay its debts within the meaning of s.123, Insolvency Act 1986 or convenes a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I, Insolvency Act 1986 or a proposal 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 Advertiser (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;
      7. the Advertiser (being an individual) is unable to pay his/her debts within the meaning of s.268, Insolvency Act 1986, is declared bankrupt, has a petition presented against him/her or makes an arrangement or compromise for the benefit of his/her creditors whether pursuant to Part VIII Insolvency Act 1986 or otherwise; or
      8. the Advertiser (being a partnership) is unable to pay its debts or a petition is presented for its winding up under the provisions of the Insolvent Partnerships Order 1994 whether or not involving individual insolvency proceedings against the Advertiser’s partners and presented by creditors or by the partners themselves or such petition is presented against it in conjunction with bankruptcy or individual insolvency or petitions against any partner or if the Advertiser enters into any composition, scheme or arrangement or voluntary arrangement including its business and assets or the share of any partner or in the event of any action for a partnership account and/or winding up or dissolution of the Advertiser under the Partnership Act 1890 or if any of the states or affairs or events described in clause 10.7.7 occur in relation to any partner or any similar action or steps are taken in any jurisdiction in relation to any of the above; and/or
      9. the Advertiser is refused credit by another member of Auto Trader Limited; and/or
      10. the Publisher’s licence of Web Tracker is terminated.
    8. Termination of the Agreement shall be without prejudice to any rights accrued by the Publisher prior to termination and the Advertiser shall repay the Publisher on a full indemnity basis for all costs and expenses (including administration and legal costs on an indemnity basis) incurred by the Publisher in the event that the Advertiser changes address and fails to notify the Publisher and/or in recovering any sums due to it under the Agreement.
  11. FORCE MAJEURE
    1. The Publisher shall not be liable to the Advertiser and/or be deemed to be in breach of the Agreement by reason of any delay in performing and/or any failure to perform any of the Publisher’s obligations under the Agreement if the delay and/or failure is due to any cause beyond the Publisher’s reasonable control (including but not limited to any act of God, lock out or other industrial action, governmental action or restriction, war, terrorism, fire, flood, infrastructure failure, downtime, internet or connectivity failure, power failure, strike or civil commotion) and time for performance of that obligation shall be extended accordingly.
  12. CONFIDENTIALITY
    1. The parties acknowledge and agree that all Confidential Information disclosed by either of them under or in relation to the Agreement is and remains the proprietary right and trade secret of such disclosing party and that disclosure creates in the receiving party no interest, title or lien whatsoever, except as otherwise provided in these Conditions. The parties agree to treat all Confidential Information received from the other with the same degree of care and diligence with which they treat their own confidential information (but with no less than reasonable care) both during and after the term of the Agreement and shall not disclose the same to any person, firm or company without the disclosing party’s prior consent.
    2. Confidential Information shall not include any information which is:
      1. public knowledge or which subsequently becomes public knowledge other than through any act or failure to act by either party;
      2. already known to the recipient party (as evidenced by its written records) at the time the Agreement is entered into and was not acquired directly or indirectly from the other party or is not otherwise subject to an obligation of confidentiality;
      3. acquired by the relevant party from any third party who did not acquire such information directly or indirectly from the disclosing party and/or in breach of any obligation of confidence; and/or
      4. required to be disclosed by law provided that as much advance notice of disclosure as is possible is given by the disclosing party to the other party.
  13. GENERAL
    1. It is the responsibility of the Advertiser to make it clear on the Website that the Advertiser is selling goods in the course of a business in compliance with the Business Advertisement (Disclosure) Order 1977 and failure to comply is an offence for which the Advertiser may be prosecuted.
    2. Each party acknowledges that it has not entered into the Agreement in reliance upon any representation not expressly set out in the Agreement and neither party shall be liable in respect of any representation made prior to and not contained in the Agreement. Nothing in these Conditions shall exclude or limit the Publisher’s liability for fraudulent misrepresentation.
    3. The Agreement is personal to the Advertiser, and the Advertiser may not assign or transfer the Agreement without the prior written consent of the Publisher. The Publisher reserves the right to assign, transfer, licence or subcontract the Agreement and any of its rights and obligations under the Agreement to a third party.
    4. Where two or more persons are named on the Agreement as the Advertiser, their liability shall be joint and several.
    5. No variation of these Conditions shall be binding unless agreed in writing and signed by an authorised representative of the Publisher.
    6. No waiver or indulgence by the Publisher shall be effective save in relation to the matter in respect of which it was specifically given.
    7. If any provision of these Conditions is found by any competent authority to be invalid, unlawful or otherwise unenforceable then such provision shall be severed from the remaining Conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
    8. Nothing in these Conditions 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 Advertiser and the Publisher.
    9. The Agreement, which incorporates these Conditions, 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.