Dealer Drive Business Agreement

1. Services 

1. Subject to the Customer’s compliance with the terms of this Agreement, Dealer Drive agrees to provide the Services to the Customer. 

2. Dealer Drive grants to the Customer a limited, non-exclusive, non-transferable and revocable licence subject to the terms of this Agreement during the Term for the Customer and its Authorised Users to access and use the Application solely for the internal business purposes of the Customer (Purpose). 

3. The Customer may permit its Authorised Users to use and access the Application for the Purpose, provided that the Customer informs each Authorised User of the limitations that apply to their use of the Services and the Application under this Agreement. The Customer is at all times responsible for all activities using the logins and/or passwords allocated to it, including any breach of this Agreement caused or contributed to by an Authorised User or an unauthorised third party using those credentials.

4. The Customer acknowledges that Dealer Drive may migrate the Customer to any updated version of the Application on the date that it makes an Upgrade available to the Customer. 

5. Dealer Drive may audit and inspect the Customer’s use of the Application periodically to ensure its use of the Application and the Services complies with this Agreement.  The Customer must provide such co-operation and assistance as Dealer Drive reasonably requires in relation to the performance of any such audit and inspection.

2. Term

1. This Agreement begins on the Commencement Date and continues for the Initial Term, unless terminated earlier in accordance with its terms. 

2. Unless a party provides written notice to the other party at least 60 days prior to the expiry of the Initial Term stating its intention for this Agreement to terminate at the end of the Initial Term, this Agreement will further remain in force following the expiry of the Initial Term, until it is terminated in accordance with this Agreement (Term). 

3. Intellectual Property

1. The Customer acknowledges and agrees that:

   a. Dealer Drive at all times continues to own all rights, title and interest in and to, including all Intellectual Property Rights in, the Services, including all technology and data provided by Dealer Drive, the Application and any Upgrades; and

   b. nothing in this Agreement transfers any Intellectual Property Rights in the Services or the Application to the Customer. 

2. All rights in respect of the Application not expressly granted in this Agreement are reserved by Dealer Drive.

3. Dealer Drive acknowledges that the Customer retains all of its rights, title and interest in and to the Customer Data and ownership of the Customer Data is not transferred to Dealer Drive under this Agreement.

4. Notwithstanding clause 3.3, the Customer grants Dealer Drive a perpetual, non-revocable, non-exclusive, royalty-free, sub-licensable licence to use the Customer Data:

   a. for the purpose of providing the Services; and

   b. on an aggregated, de-identified or anonymised basis for any purpose (provided that Dealer Drive complies with its confidentiality and privacy obligations).

5. The Customer acknowledges and agrees that Dealer Drive may name the Customer as a customer in publicity or marketing materials. 

4. Fees

1. The Customer must pay Dealer Drive the Fees in accordance with the payment terms set out in the Existing Agreement. Unless otherwise specified in the Existing Agreement, all Fees are exclusive of GST and are in Australian Dollars (AUD). The Customer must pay all applicable GST in addition to the quoted Fees where applicable.  

2. Dealer Drive will render tax invoices to the Customer in relation to the provision of the Services. 

3. The Customer must pay the Fees by electronic funds into Dealer Drive’s bank account as notified by Dealer Drive, or by such other payment method as nominated by Dealer Drive from time to time.

4. In the event of any failure by the Customer to pay any Fees in accordance with this Agreement, Dealer Drive is entitled to charge interest on any unpaid amounts at a rate equivalent to the penalty interest rate (i.e. the rate, from time to time, fixed under the Penalty Interest Rates Act 1983 (Vic)), from the due date until the outstanding amount is paid in full.

5. Customer responsibilities

1. The Customer must not (and must ensure its Authorised Users do not):

   a. reverse engineer, decompile, disassemble or attempt to discover any source code or underlying ideas or algorithms of the Application or the Services;

   b. transfer, sell, publish, lease, lend, disclose, reproduce or use for timesharing or service bureau purposes the Application, or otherwise infringe Dealer Drive’s Intellectual Property Rights in the Application and the Services;

   c. remove or modify any Application markings or any other notice of Dealer Drive's proprietary rights on the Application;

   d. create any derivative works based on the Application; 

   e. access, scrape, copy, monitor or use any portion of the Application or any materials or other content on the Application by using any robot, "bot," spider, web crawler or other similar device; 

   f. do anything that compromises the stability, function or security of the Application or the Services or interferes with another user; 

   g. do anything likely to bring Dealer Drive into disrepute;

   h. use the Application or the Services for any unlawful or unauthorised purpose; or

   i. use the Application or the Services to publish information that is obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, threatening or discriminatory.

2. The Customer must (and must ensure its Authorised Users do):

   a. comply with Dealer Drive’s Acceptable Use Policy;

   b. maintain the secrecy and confidentiality of all logins and passwords required to access the Services and/or the Application, and ensure that they are only accessible only to the persons authorised to access the Application; 

   c. unless permitted to do so by Dealer Drive in writing or under this Agreement, not provide any third parties with access to the Application or the Services; 

   d. notify Dealer Drive as soon as reasonably practicable after it becomes aware of any failure or likely failure by the Customer (or an Authorised User) to comply with this Agreement; and 

   e. comply with all applicable laws while accessing and using the Services and the Application. 

3. The Customer warrants that at all times during the Term it has obtained all necessary consents and authorisations from Authorised Users in relation to the Customer’s use of the Services and the Application (including by displaying any consent screens to Authorised Users when prompted by the Application). Without limitation, the Customer warrants that it at all times during the Term has obtained relevant Authorised User consent to the extent that any information uploaded to the Application relates to that Authorised User.

4. The Customer is responsible for providing its own equipment necessary for accessing the Application. 

5. The Customer acknowledges the Services and the Application are not intended for use with, and it is the Customer’s responsibility to ensure that any Customer Data does not contain, medical information, credit card details and any other information which falls within the definition of “sensitive information” under the Privacy Act 1988 (Cth). 

6. Security and privacy requirements

1. To the extent a party receives, uses or accesses Personal Information under this Agreement or in relation to the Services, the party must:

   a. comply all applicable Privacy Laws; and

   b. not cause (through acts or omissions) the other party to be in breach of any relevant Privacy Laws. 

2. Each party must take all reasonable steps to protect Personal Information in its control or possession from misuse and loss and from unauthorised access, modification or disclosure.

3. The Customer acknowledges that Dealer Drive may use all Personal Information which it receives in relation to the Services in accordance with its Privacy Policy. 

4. If aspects of the Services include data, technology or services provided by Third Party Providers, the Customer acknowledges that it may also be bound by the privacy policies of those Third Party Providers as notified to the Customer from time to time. 

5. The Customer must comply with all reasonable directions of Dealer Drive in relation to any Personal Information it receives, uploads, uses or accesses under this Agreement or in relation to the Services.

6. The Customer acknowledges that Dealer Driver may remove all copies or images of identity documents that form part of the Customer Data in accordance with Dealer Drive’s data deletion policies. 

7. Confidentiality

1. Except as otherwise permitted by this Agreement, each party must:

   a. only use Confidential Information as necessary to provide or receive the Services; and 

   b. maintain the confidentiality of the other party’s Confidential Information.

2. The obligations in clause 7.1 do not apply to information that: 

   a. was already public knowledge at the date of disclosure; 

   b. is disclosed to the party by a third party other than as a result of a breach of any obligation of confidentiality owed by the third party; 

   c. was known to the party prior to its receipt from the other party; 

   d. is developed by the party independently of any disclosures previously made by the other party;

   e. is disclosed with the other party’s prior written consent; or

   f. is required to be disclosed by the party by law, an order of the court or by another legal process duly performed or due to the listing rules of a recognised stock exchange.

8. Indemnity

1. Subject to clauses 8.2, 8.3 and 8.4, Dealer Drive will defend the Customer against any Third Party Claims against the Customer directly resulting from the technology comprising the Services (eg the applications and software) violating the Intellectual Property Rights of a third party. 

2. The indemnity in clause 8.1 does not apply to the extent the violation of Intellectual Property Rights has been caused or contributed to by: 

   a. the Customer or its Authorised Users (including without limitation any misuse of the Application or the Services by those persons); or

   b. the Third Party Services.

3. The Customer must: (i) promptly give Dealer Drive written notice of the relevant Third Party Claim; and (ii) allow Dealer Drive to conduct the defence and settlement of the Third Party Claim. Dealer Drive’s obligation to defend the Customer under clause 8.1 is limited to paying the cost of defending the Third Party Claim, and the damages awarded by a court directly arising from the Third Party Claim.

4. Dealer Drive may, at its sole option and expense, elect to modify or replace the relevant technology or otherwise modify the Services so they are non-infringing, or cancel supply of the Services and terminate this Agreement (without any liability to the Customer). To the extent permitted by law, clauses 8.2, 8.3 and 8.4 state that Dealer Drive’s sole liability, and the Customer’s sole remedy, with respect to any technology comprising the Services is limited to the infringement of a third party’s Intellectual Property Rights.

5. The Customer indemnifies the Dealer Drive Indemnified Parties for all Liabilities suffered or incurred by the Dealer Drive Indemnified Parties that arise as a result of the breach of this Agreement or violation of any applicable laws by the Customer or its Authorised Users, including without limitation any breach or misuse of the Intellectual Property Rights of Dealer Drive by the Customer or its Authorised Users. 

6. Each party must take all reasonable steps to avoid or mitigate any Liability which it might suffer or incur in relation to an indemnity.

7. A party’s obligation to indemnify will be reduced to the extent the relevant Liability or claim was caused or contributed to by the indemnified party.

1. While Dealer Drive will endeavour to provide the Services in accordance with their description, the Customer acknowledges that the following exclusions and limitations of liability apply (to the extent permitted by law):
   

   a. The Services are provided on an “as is” and “as available” basis.

   b. Dealer Drive excludes all liability for:

   (i) any delay, unavailability, inaccuracy, incompleteness or failure to be up-to-date of the Services;
   (ii) all implied conditions and warranties; 
   (iii) any reliance the Customer or its Authorised Users place on the Services; 
   (iv) any fraud, unlawful conduct or errors or omissions of the Customer or its Authorised Users (including where any Customer Data is false, misleading or unlawful); and
   (v) any loss or corruption of data, unauthorised access to data (including Customer Data), or any damage or contamination to computer systems or networks in any way arising from the Services (including through the download of a virus, harmful code or otherwise); and
   (vi) any Indirect Loss suffered or incurred by the Customer under this Agreement or in relation to the Services (whether arising in contract, tort, negligence or otherwise).

   c. Dealer Drive does not warrant that the Services will be uninterrupted or error free, or that any errors in the software or technology will be corrected.

   d. Subject to paragraph (e) below, to the extent that Dealer Drive has any Liability to the Customer (or any of its Authorised Users) in relation to the Services or under this Agreement (including under clause 8.1): (i) the Customer’s sole remedy will be limited Dealer Drive re-performing the specific Services; and (ii) in no case will Dealer Drive’s aggregate liability to the Customer (or any of its Authorised Users) exceed an amount equal to the Fees paid and payable by the Customer to Dealer Drive for the 12-month period preceding the date on which the cause of action arose.

   e. Subject to clause 9.4, the limitation of liability in paragraph (d) above does not apply to: 

   (i) Dealer Drive’s liability for fraud or a deliberate breach of this Agreement; and
   (ii) any liability that cannot be lawfully excluded.

   
   

9. 2. The Customer acknowledges that:

      a. the Customer is solely responsible for the accuracy and completeness of all Customer Data and any business decisions it makes as a result of its use of the Services and the Application; 

      b. Dealer Drive does not guarantee that any use of the Services or the Application will achieve any particular outcome; and

      c. Dealer Drive is in no way responsible for the Customer’s relationship with any Authorised User. 

   1. The Services may contain links to third party websites. The Customer acknowledges that Dealer Drive is not responsible for those third party websites (or products, services or information supplied via those sites), and are not liable for the Customer’s access to those links. 

   2. The Customer acknowledges that to the maximum extent permitted by law, Dealer Drive excludes any warranty or condition implied by law. Nothing in this Agreement (including under this clause 9) excludes, restricts or modifies any right or remedy conferred on the Customer by an applicable statute (eg Competition and Consumer Act 2010 (Cth)) that cannot be excluded, restricted or modified (Non-Excludable Obligation). However, to the fullest extent permitted by law, Dealer Drive’s liability for a breach of a Non-Excludable Obligation is limited to re-supply of the Services or re-performance of Dealer Drive’s obligations.

   3. To avoid doubt, all disclaimers and liabilities of liability in this clause 9 will also apply to any goods or services that are provided by Third Party Providers that form part of the Services.  

10. Termination
    
    1. Either party may terminate this Agreement immediately by written notice if the other party:

    a. commits a material breach of this Agreement and the breach cannot be remedied, or the breach can be remedied but the other party fails to do so within 14 days of the party not in breach giving notice of the breach; or
    
    

    b. is subject to an insolvency event. 

    
    

    2. Following the end of the Initial Term, either party may terminate this Agreement by providing 90 days’ written notice to the other party. 

    3. Dealer Drive may immediately terminate this Agreement, or suspend the Customer’s access to the Services, by written notice if:

    a. the Customer fails to pay any Fee in accordance with this Agreement;b. Dealer Drive believes it is reasonably necessary to do so to prevent any damage to the Services or the Application or any other user; or c. the Customer or its Personnel engage in behaviour which in Dealer Drive’s reasonable opinion is obscene, offensive or threatening against Dealer Drive or its Personnel.

    
    

    4. Upon termination or expiry of this Agreement: 

    a. all rights of the Customer (and any Authorised User) to use and access the Services and Application shall cease; b. the Customer shall pay Dealer Drive all Fees due for Services provided up to the effective date of termination or expiry;c. if Dealer Drive in its sole discretion terminated this Agreement under clause 10.2, then Dealer Drive will pay to the Customer a pro rata refund of any Fees that the Customer has prepaid for Services that have not been provided to the Customer as at the effective date of termination (if any); andd. to the extent permitted by law, Dealer Drive may delete or remove any and all Customer Data from the Application.

    5. Clauses 3, 6, 7, 9, 12, 15 and 16 survive termination of this Agreement.

11. Force Majeure

    1. Neither party will be liable for any failure or delay in the performance of its obligations under the Agreement (other than an obligation to pay money) if that failure or delay is due to circumstances beyond its reasonable control including, but not limited to, unavailability of equipment or other materials, natural disasters, Government restrictions, wars, insurrections, industrial action, or disruption to power supplies or communications systems (Force Majeure Event).

    2. If a failure or delay in performance arising due to a Force Majeure Event exceeds 60 days, either party may immediately terminate the Agreement by written notice to the other party.

12. Third Party Providers

    1. The Customer acknowledges and agrees that:

    a. aspects of the Services may involve data (such as valuations), information, technology or services provided by Third Party Providers (such as the provision of hosted service facilities and vehicle valuation estimates); 

    
    

    b. to the extent permitted by law, Dealer Drive is in no way responsible or liable for, and makes no representations, guarantees or warranties in respect of, any Third Party Provider or any data, information, technology or service made available by a Third Party Provider, including but not limited to its features, reliability, accuracy, completeness, integration, quality or availability; and

    
    

    c. it will comply with any additional terms and conditions of the Third Party Provider (if any), notified to the Customer from time to time. 

    
    

    2. In respect of any data and valuations that may be from time to time displayed in the Application or through the Services, the Customer acknowledges that whilst all care is taken in producing such data and valuations, neither Dealer Drive nor the relevant Third Party Providers make any representations regarding the accuracy, completeness or fitness or purpose of the data. The Customer should not rely on the data or valuations without making its own independent assessments.

13. External System integrations

    1. This clause 13 will apply to the extent that this Agreement, including any aspect of the Services, involves the transfer by Dealer Drive of any data or information (including any Customer Data) to and/or from an External System. In respect of any such transfer arrangements, the parties agree as follows: 

    a. the Customer hereby authorises Dealer Drive to do so; 

    
    b. whilst Dealer Drive will use all reasonable endeavours to transfer the data or information in accordance with any agreed specification, Dealer Drive does not guarantee:

    
    

    (i) the nature, reliability, accuracy or completeness of any data transmitted from or to the External System; (ii) the speed of delivery of any data transfer; or(iii) that any transfer will be error free; 

    c. the Customer acknowledges that Dealer Drive may be unable to send the data or information to the External System due to circumstances outside of Dealer Drive’s reasonable control (including without limitation due to External System restrictions or malfunctions); 

    
    d. the Customer acknowledges that Dealer Drive may have an integration or other agreement in place with the External System Provider which applies to the transfer. To the extent that such an agreement is in place, the Customer agrees:

    
    e. that Dealer Drive may immediately suspend or terminate the transfer of data or information if that agreement is terminated for any reason or if the External System Provider elects to discontinue the relevant integration or product; and

    
    f. to not do anything which will or may cause Dealer Drive to breach any duty, obligation, representation or warranty contained in the applicable agreement (provided that such terms were previously notified to the Customer in writing); and

    
    g. to the extent that Dealer Drive does not have an applicable integration or other agreement in place with the External System Provider in respect of the transfer, then the Customer: 

    
    

    (i) acknowledges that it is responsible for ensuring that the transfer of data or information is in compliance with all applicable laws, consents and third party terms and conditions;  

    (ii) must procure that the External System Provider provides Dealer Drive with any reasonably requested support in relation to any technical issues associated with the transfer of data; and 

    (iii) must not change its External System without providing prior written notice to Dealer Drive; 

    
    

    h. to the maximum extent permitted by law, Dealer Drive is in no way responsible or liable for any actions or omissions of the External System Provider, and makes no representations, guarantees or warranties in respect of the External System; 

    
    i. the Customer indemnifies the Dealer Drive Indemnified Parties for all Liabilities suffered or incurred by the Dealer Drive Indemnified Parties that arise as a result of the Customer’s use of, or any unlawful, negligent or wrongful act or omission by the Customer in connection with, any applicable integration between Dealer Drive and the External System Provider; and

    
    j. each party acknowledges that the Intellectual Property Rights of each party and the External System Provider are not affected by the transfer of data or information.   
    
    
    

14. Changes to the Agreement and the Fees

    
    

    1. Dealer Drive may, from time to time, upon 30 days’ written notice to the Customer, vary this Agreement or the Fees. For the avoidance of doubt, the parties acknowledge that such written notice may occur (without limitation) via email or a push notification published in the Application. 

    2. If the Customer does not accept any variation or change, it may terminate this Agreement by providing Dealer Drive with 7 days’ written notice within 30 days of receiving the notification of the proposed variation or change.

    3. If the Customer fails to give written notice, this Agreement will be deemed to include the variation or Fee change at the expiration of the 30 days’ notice from Dealer Drive.

    4. For the avoidance of doubt, Dealer Drive may make any Upgrades to the Application without amending this Agreement under this clause 14.

15. General

    1. Transitional arrangements: As from the date you accepted the terms of this Dealer Drive Business Agreement, the legal terms set out in the Existing Agreement are deemed to be deleted and replaced with the terms of this Dealer Drive Business Agreement. The commercial details set out in the Existing Agreement (such as the Fees payable and scope of Services) continue to apply unless varied in accordance with the terms of this Agreement. Where the Initial Term of the Existing Agreement expired prior to your acceptance of the terms of this Dealer Drive Business Agreement, the Existing Agreement will be deemed to have remained on foot unless it had been previously terminated in writing in accordance with its terms. 

    2. Assignment:  The Customer must not assign, sub-license, novate, subcontract, transfer or otherwise dispose of any of its rights or obligations under this Agreement without Dealer Drive’s prior written consent. Dealer Drive may assign the whole or part of this Agreement to a related body corporate or in connection with a merger or consolidation involving Dealer Drive or the sale of substantially all of Dealer Drive’s assets without the Customer’s consent. 

    3. Severance:  If any term of this Agreement is illegal or unenforceable, it will be severed and the remaining terms continue in full force and effect.

    4. Notices:  Notices to the Customer may be sent to the addresses nominated in the Existing Agreement, or in such other way as the Customer may have last notified Dealer Drive in writing. Notices to Dealer Drive must be sent by email to accounts@dealerdrive.com.au or other address as nominated by Dealer Drive from time to time.

    5. Further acts: Each party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by another party to do so.

    6. Waiver: Failure by any party to exercise or delay in exercising any right, power or remedy under this Agreement does not prevent its exercise. A waiver must be in writing signed by the party giving the waiver.

    7. Counterparts: This agreement may be executed in separate parts and those parts together will take effect as one validly executed legal agreement.

    8. Inconsistency: To the extent of any inconsistency, the terms of the Dealer Drive Business Agreement prevail to the extent of any inconsistency with the terms of the Existing Agreement. 

    9. Entire agreement: This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all prior communications between the Customer and Dealer Drive in this regard. 

    10. Governing law: This Agreement is governed by the laws of Victoria and each party submits to the jurisdiction of the courts of that state.

16. Glossary

    In this Agreement, unless a contrary interpretation appears: 

    a. Acceptable Use Policy means the terms set out at https://www.dealerdrive.com.au/Acceptable-Use-Policy or other URL as nominated by Dealer Drive from time to time.
    

    b. Agreement means this Dealer Drive Business Agreement together with the Existing Agreement.  
    

    c. Application means the computer software and program(s) and/or data in executable code form, branded as ‘Dealer Drive’, together with any associated technical information and documentation. 

    d. Authorised User means (i) each of the Customer’s Personnel who has been assigned a user account to access and use the Application; and (ii) any existing or potential customers of the Customer who have entered into an arrangement with the Customer in respect of the vehicles distributed by the Customer and who are requested by the Customer to provide details or information through the Application.  

    e. Business Day means a day other a Saturday, Sunday or public holiday in Melbourne, Australia. 

    f. Commencement Date means the date on which the Existing Agreement commenced.

    g. Confidential Information means all information of a party information that is by its nature confidential, including information in relation to its business operations, contracts, Personnel, products, sales, transactional data, financial data, trade secrets, Personal Information and other sensitive corporate information. 

    h. Customer means the entity receiving Services from Dealer Drive, as identified in the Existing Agreement. 

    i. Customer Data means all information which the Customer and/or its Authorised Users upload to the Application or otherwise transmits to Dealer Drive under this Agreement.

    j. Dealer Drive means  Dealer Drive Australia Pty Ltd (ACN 165 751 093), unless Dealer Drive International Pty Ltd is specified in the Existing Agreement as the contracting entity, in which case Dealer Drive refers to Dealer Drive International Pty Ltd (ACN 165 751 011). 

    k. Dealer Drive Indemnified Parties means Dealer Drive and its related bodies corporate, and each of their employees, subcontractors, officers and agents. 

    l. Existing Agreement means the executed agreement between Customer and Dealer Drive relating to the provision of Services to the Customer.

    m. External System means a third-party DMS, CRM or other external system to which the Customer may wish for certain data or information to be distributed by Dealer Drive, or to Dealer Drive, in connection with the Services.

    n. External System Provider means the relevant operator or provider of an External System. 

    o. Fees means the fees and other amounts payable by the Customer to Dealer Drive as specified in the Existing Agreement.

    p. Indirect Loss means any loss that cannot fairly and reasonably be considered to arise naturally or directly from the relevant breach or event, including loss of profits, revenues, data, anticipated savings, goodwill, reputation or opportunity.

    q. Initial Term means the initial committed period specified in the Existing Agreement (e.g. may be described as the Approval Term).

    r. Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, know-how, patents, trade secrets inventions and discoveries and other similar rights which may subsist or may hereafter subsist in works or any subject matter.

    s. Liabilities means damages, losses, liabilities, fines, penalties, claims, costs and expenses of any kind.

    t. Personal Information has the meaning given to that term under the Privacy Act 1988 (Cth). 

    u. Personnel of a party means the employees, contractors and officers of that party. 

    v. Privacy Laws means the Privacy Act 1988 (Cth), Do Not Call Register Act 2006 (Cth), Spam Act 2003 (Cth) and all applicable laws relevant to Personal Information. 

    w. Privacy Policy means Dealer Drive’s privacy policy located at www.dealerdrive.com.au/Privacy-Policy. 

    x. Services means the services to be provided by Dealer Drive to the Customer under this Agreement, as described in the Existing Agreement.

    y. Third Party Claim means any claim, suit or demand by a third party.

    z. Third Party Provider means an organisation engaged by Dealer Drive to provide data, technology or services as part of the Services. 

    (aa) Upgrade means any bug fixes, error corrections, improvements, updates and new versions of the Application that are provided by Dealer Drive to the Customer (but does not include any ancillary products that are sold separately by Dealer Drive).