Marketplace Terms and Conditions
Drive owns and operates the Drive Network and has the opportunity to generate leads for new or used vehicles from users who make enquiries with the Drive Network. These leads are provided to Clients pursuant to the terms of the Lead Generation Insertion Order form between Drive and Client and subject to the terms and conditions set out below (collectively the “agreement”).
These Terms and Conditions apply to New Car Leads and Used Car Leads.
Definitions And Interpretation
- Inconsistency of terms. If there is any inconsistency between any of these Terms and Conditions and the terms set out in the Lead Generation Insertion Order form, the terms in the Lead Generation Insertion Order form will prevail to the extent of the inconsistency.
- Definitions. The following terms have the following meanings in this agreement unless the context otherwise requires:
(a) Business Day means any day excluding Saturday or Sunday or a public holiday in the state of New South Wales, Australia.
(b) Car Lead means a Used Car Lead and/or a New Car Lead, as is applicable.
(c) Confidential Information means the terms and conditions of this agreement and all other information of a confidential nature disclosed or communicated by a party to the other party but excludes any information which the recipient party can establish:
(i) is or becomes generally available in the public domain otherwise than through a breach of this agreement or any obligation of confidence owed to the disclosing party;
(ii) is or becomes known to the recipient party from a source other than the disclosing party otherwise than through a breach of an obligation of confidentiality owed to the disclosing party;
(iii) is or has been independently developed or acquired by the recipient party; or
(iv) is approved in writing by the disclosing party for disclosure by the recipient party.
For the sake of clarity, the New Car Enquiries and all Car Leads are the confidential information of Drive.
(d) Drive Network means all the digital properties (including without limitation websites, mobile sites and applications) operating under the Drive brand (as may be updated by Drive from time to time) including without limitation www.drive.com.au, www.caradvice.com.au, www.caradvicetv.com.au, caradvice.tv and boatadvice.com.au;
(e) GST means a tax, duty, levy, charge or deduction, imposed by or under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(f) Lead Subject means a user of the Drive Network who submits a New Car Enquiry to Drive or who responds to a Used Car Listing (as is applicable).
(g) New Car Enquiry means an electronic enquiry submitted by a Lead Subject requesting further information on a specific vehicle model for a new car, with such enquiry able to be submitted via a variety of different formats including webforms, live chat and concierge services and requiring the customer to submit PII such as their name, email address and/or mobile phone number and post code in order to be contacted as well as details of the type of vehicle that the Lead Subject is interested in.
(h) New Car Lead means the information collected by Drive from a Lead Subject regarding a New Car Enquiry and provided by Drive to the Client which may include name, email, telephone number and/or email address) as well as the type of vehicle that the Lead Subject has expressed interest in;
(i) Order means the order for Services described in the Lead Generation Insertion Order which has been accepted by us in accordance with this Agreement;
(j) Permitted Purpose has the meaning given to that term in clause 16 of these Terms and Conditions.
(k) PII means any information of a Lead Subject that is included in a New Car Lead and/or a Used Car Lead and which is considered “personal information” within the meaning of the Privacy Act 1988 (Cth).
(l) Term has the meaning given to that term in clause 3 of these Terms and Conditions.
(m) Terms and Conditions means these terms and conditions as amended from time to time by Drive.
Used Car Lead means the information collected by Drive from a Lead Subject or submitted by a Lead Subject on the (n) Drive Network in response to a
(n) Used Car Listing which may include name, email, telephone number and/or email address.
(o) Used Car Listing means a listing for the sale of a used car published by Client on the Drive Network in accordance with these Terms and Conditions.
- Term. This agreement commences on the earlier of the date of execution of the Lead Generation Insertion Order form by the Client and the date the first Car Lead provided by Drive is delivered to the Client and continues until terminated by a party giving 30 days prior written notice to the other party or as otherwise as contemplated in the agreement (Term).
New Car Leads
- Transmission of New Car Leads. Drive will from time to time transmit New Car Leads to the Client by email, webform, click referral to a webpage nominated by the Client, phone, interfacing with an application nominated by the Client (e.g a CRM) and any other means that are agreed by Drive and Client from time to time and Client will pay Drive for the New Car Lead at the rate detailed on the Order.
- Supply of New Car Leads to other clients. Client acknowledges and agrees that Drive may provide a New Car Lead provided to Client to another client where the Lead Subject advises Drive that he/she has not been contacted by the Client within 30 days of provision of the New Car Lead to the Client. For the sake of clarity. Client will still be charged for the New Car Lead in these circumstances.
Used Car Leads
- Used Car Listings. Client may upload listings for the sale of used cars on the Drive Network in accordance with these Terms and Conditions. Client is solely responsible for the accuracy and completeness of all material uploaded in a Used Car Listing. Client may only advertise cars for sale on the Drive Network that Client currently has available for sale. Client represents to Drive that it has the authority to advertise the used cars that it lists for sale in Used Car Listings on the Drive Network. Client is not permitted to list any cars that are offered for sale by any third party on the Drive Network. Client grants Drive a worldwide, royalty free, non-exclusive, irrevocable licence to publish and sublicence the publication of each Used Car Listing uploaded by Client in any form or medium, including print, online or other and warrants to Drive it is authorised to grant Drive this licence. Duplicate listings of used cars are not permitted on the Drive Network. Client will remove all Used Car Listings within 72 hours of an unconditional exchange of contracts for the relevant used car.
- Used Car Listings advertising terms. Drive reserves the right (but has no obligation) to review, modify, reformat, reject or remove (or direct Client to modify or remove) any material that Client uploads, posts, transmits or otherwise makes available (or attempts to upload, post, transmit or otherwise make available) via the Drive Network if the material is, in the opinion of Drive, illegal, defamatory, offensive, obscene and/or contrary to the business interest, goodwill and/or reputation of Drive or any of its customers or vendors or is likely to infringe on the rights of third parties. Client also agrees to abide by Drive’s standard terms and conditions of advertising available at www.drive.com.au/about-drive/advertising-terms-conditions/
- Transmission of Used Car Leads. Where Client has published a Used Car Listing on the Drive Network and Client receives a Used Car Lead in response to the Used Car Listing, Client will pay Drive for the Used Car Lead at the rate detailed on the Order.
- Drive Network. To the extent permitted by law, Drive excludes all conditions and warranties relating to the Drive Network. In particular, Drive does not make any representations or warranties that the Drive Network will be uninterrupted or error free. To the extent that Drive’s liability for breach of any implied warranty or condition cannot be excluded by law our liability will be limited to the fees paid by you to us for Car Leads in the 30 days preceding the date of the claim.
- No guarantees. Drive does not represent that it will provide any minimum number of Car Leads to the Client over any particular period of time and does not make any representations regarding the quality of any Car Lead and/or the likelihood that the Client will be able to convert a Car Lead into a sale of a vehicle to the Lead Subject. The Client takes all Car Leads it receives from Drive on an ‘as is’ basis. Nothing in this agreement is intended to impose any obligation of exclusivity on either party during the Term. Any monthly cap of New Car Leads set by the Client on the Order Form may be amended by Drive upon 30 days written notice to Client.
- Measurement of Car Leads. Drive will advise Client within 10 Business Days of the end of each applicable billing period during the Term of the number of Car Leads (ie New Car Leads and Used Car Leads) delivered to the Client over the applicable billing period. The invoice (or a separate report) will detail the name and make/model of each New Car Lead provided to the Client during the applicable billing period. Drive’s measurement of Car Leads delivered to the Client will be the definitive measurement under this agreement, unless otherwise proven by Client. It is not intended that Client will be charged for Car Leads that contain: (a) incorrect/fake contact details for the Lead Subject (as evidenced by Client to Drive by, for example, an incomplete mobile number); (b) a Car Lead that is a duplicate of a Car Lead already provided to the Client; (c) a Car Lead that relates to a Lead Subject who has already placed a deposit or has a contract for a new or used car with the Client or with another car dealer before the Car Lead was provided to the Client; (d) a New Car Lead that does not contain all the required Lead Information details being at least the vehicle make, model, post code of the Lead Subject in the case of a New Car Lead and either the phone number or email address for the Lead Subject in the case of all Car Leads.
- Payment Terms. Drive will invoice Client for Car Leads at the rate(s) detailed in the Order (plus GST) with payment due within 30 days of the date of invoice. Client will pay Drive for all Car Leads delivered by Drive to Client during the Term irrespective of whether a Car Lead is converted to a sale of a vehicle by Client to the Lead Subject. Payment is to be made via EFT to Drive’s bank account unless another form of payment is agreed by Drive in writing. Drive reserves the right to charge a late fee of the lesser of 1.5% per month or the maximum rate allowable by law if Drive does not receive payment by the due date of the invoice. Client will pay Drive’s reasonable expenses, including legal fees and costs, incurred in collecting any past due amounts. Drive may suspend this agreement and/or any Used Car Listings and cease to pass Car Leads to Client if Client does not make timely payment of invoices and/or if Client’s credit becomes impaired.
- GST. Unless otherwise expressly stated, all fees, prices or other sums payable in relation to this agreement are exclusive of GST. If GST applies to a supply by either party under this agreement, the consideration will be increased by an amount equal to the GST liability incurred by the party making the supply. Any invoice rendered by a party to this Agreement in connection with a supply must conform to the requirements for a tax invoice. If a payment to a party under this Agreement is a reimbursement then payment will be reduced by the amount of any input tax credit to which that party is entitled for that cost or expense.
- No assignment of Car Leads. Client may not resell, license, assign or transfer any Car Leads to any other person. Car Leads are for Client’s use only. Drive may terminate this agreement without liability if Client attempts to resell, assign or transfer any Car Leads and/or any of its rights under this agreement. Drive may assign, delegate, sublicense, or otherwise transfer from time to time this agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity who is a related body corporate of Drive.
- Breach. If a party breaches any obligation under this agreement and such breach is not cured within ten (10) Business Days of receipt of written notice of such breach, the other party may terminate this agreement upon written notice.
- Limitations. To the extent permitted by law, Drive expressly disclaims all and any warranties, express or implied, including any warranties of merchantability, fitness for a particular purpose, title, non-infringement or otherwise with respect to the delivery of the Car Leads to Client under this agreement. Drive will not be liable to Client (nor to any person claiming rights derived from Client’s rights) for any indirect, special, incidental, consequential, punitive, or exemplary damages of any kind, including lost revenues or profits, loss of business or loss of data, arising out of this agreement, regardless of whether Drive was advised, had other reason to know, or knew of the possibility thereof. Drive’s maximum liability arising out of or relating to this agreement, whether the cause of action arises in contract, tort, or otherwise, shall not at any time exceed the amounts actually paid by Client to Drive under this agreement in the 30 days preceding the date of the claim.
- Confidential Information. A party shall not at any time disclose any Confidential Information of the other party to any other person other than to those of its employees and related bodies corporate who undertake to comply with confidentiality restrictions which are not at least as protective as those contained in this agreement and who have a legitimate need to know such Confidential Information in connection with this agreement. The recipient party shall keep all the Confidential Information disclosed to it by the disclosing party on a strictly confidential basis and only use it for the purposes for which it was disclosed. A party may disclose Confidential Information if it is required by law to do so provided that: (a) it gives the disclosing party prompt written notice of such requirement prior to such disclosure, (b) it assists the disclosing party upon request in obtaining an order protecting the Confidential Information from public disclosure.
- Miscellaneous. This agreement is the entire agreement between the parties, and supersedes any other agreements (whether written or oral) between the parties, on this subject matter. This agreement does not create any relationship of principal and agent or any partnership or employment relationship between the Client and Drive. This agreement is governed by and construed in accordance with the laws of New South Wales and each party agrees to the jurisdiction of the courts of New South Wales.