Terms and Conditions

1. Definitions and Interpretation

1.1 Definitions

In these terms and conditions (“Agreement”), the following expressions have the following meanings, unless the context otherwise requires:

“Authorised User” means those of your employees, agents and contractors who are authorised by you, and approved by us in writing, to access and use the Services and the Software in accordance with these terms and conditions.

“Business Day” means a day other than a weekend or public or bank holiday in Queensland, Australia.

“Charges” means the charges and/or fees payable by the Customer to the Provider as set out in the Order, or any prices, price indications, pricing schedule or price list provided by Dealer Studio to the Customer (including in relation to any plugins, add-on product/service features or other enhancements) or otherwise made available to the Customer, including as otherwise varied under these terms and conditions from time to time, whether via written or email notification, through the Software or otherwise.

“Consumer Guarantee” means any right that you may have under Australian consumer protection laws against providers of goods or services.

“Customer”, “you” or “your” means the person specified in the Order or to whom any quotation is made by Dealer Studio, any person offering to contract with Dealer Studio on these terms and conditions, or any person who purchases or receives the Services and/or the Software from Dealer Studio.

“Customer Background IP” means the Intellectual Property Rights owned by the Customer or licensed to the Customer by a third party, which existed prior to the provision of the Services or the Software by Dealer Studio to the Customer or were developed by the Customer independently of this Agreement, but does not include Dealer Studio’s Background IP or the Developed IP.

“Customer Data” means any data or information owned by you which is provided, or made available to us, including on your website or the website of your affiliates or related bodies corporate, or any other data owned by you that is otherwise uploaded, generated, compiled, arranged or developed on the Software or in connection with the Services, including: (a) Vehicle Listing Information; and (b) Leads.

“Dealer Studio”, “we”, “us” and “our” means Total Dealer Pty Ltd ACN 627 083 452 trading as Dealer Studio ABN 68 627 083 452.

“Dealer Studio’s Background IP” means the Intellectual Property Rights owned or licensed to Dealer Studio which existed prior to or after the provision of the Services or the Software by Dealer Studio to the Customer or were developed by Dealer Studio independently of the Services or the Software or these terms and conditions, but does not include the Customer Background IP or the Developed IP.

“Developed IP” has the meaning in clause 7.7.

“Insolvency Event” means in respect of a Party: (a) that Party is unable to pay its debts as they fall due within the meaning of section 95A of the Corporations Act 2001 (Cth); (b) an application for winding-up of the Party is presented, which application is not dismissed within twenty (20) Business Days; (c) the Party convenes a meeting of creditors for the purpose of considering a resolution for its winding-up or for the making of an administration order; (d) an order is made or an effective resolution is passed for winding-up the Party; (e) an application for an order or application for the appointment of a receiver (including an administrative receiver or manager), administrator, liquidator, provisional liquidator, trustee or similar officer is made in respect of all or a material part of the assets of the Party, which application is not dismissed within ten (10) Business Days; (f) a receiver, administrative receiver, administrator, liquidator, provisional liquidator, or similar officer is appointed over all or any part of the assets or undertaking of the Party and is not discharged with ten (10) Business Days of such appointment; (g) the Party enters into or proposes a voluntary arrangement or makes a composition with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement (including any deed of company arrangement); (h) the Party goes into liquidation; or (i) any other circumstance applicable to the Party arises which is analogous to those set out in this definition.

“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, software, code, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights.

“Leads” means an enquiry or expression of interest submitted through the Services and the Software regarding the purchase, sale or service of a vehicle or parts of a vehicle and includes the following information: (a) the submitted name of the person submitting the enquiry or expression of interest; (b) the submitted contact number of the person submitting the enquiry or expression of interest; (c) the submitted email address of the person submitting the enquiry or expression of interest; and (d) the nature of the enquiry or expression of interest submitted by the person.

“Method(s) of Payment” means a current, valid, accepted method of payment as set out in the Order or otherwise agreed by us from time to time, and which may include direct debit, credit card payment, payment via a paywall, or payment through your account with a third party.

“Order” means any order for the Services and/or the Software placed by the Customer with Dealer Studio, including any “Account Application”, or other written document in a form acceptable to Dealer Studio.

“Privacy Laws” means any applicable law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy rights or personal information, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles under that Act, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), and any Australian (including State or Territory) legislation from time to time in force which relates to or affects privacy rights or personal information.

“Related Bodies Corporate” has the meaning given in the Corporations Act 2001 (Cth).

“Services” means the services that we provide to you under these terms and conditions, including in relation to the Software and any associated deliverables (if any) as set out in an Order, these terms and conditions or as otherwise requested by the Customer and accepted by Dealer Studio (including in relation to any plugins, add-on product/service features or other enhancements), whether through the Software or otherwise.

“Software” means the software that we provide to you under these terms and conditions as set out in an Order, these terms and conditions or as otherwise requested by the Customer and accepted by Dealer Studio.

“Subcontractors” means any contractors, agents, consultants or subcontractors that we use to provide the Services and/or the Software.

“Term” means the period from the earlier of the date on which: (a) the Customer is provided the Services; (b) the Customer is otherwise given access to the Software; or (c) the date on which the Order is signed, until the Services or the Software are cancelled or terminated in accordance with these terms and conditions.

“Vehicle Listing Information” means the details of your vehicle inventory provided to us for the purposes of the Services and the Software, which may include the vehicle model, year, price, images and any other specifications agreed by the parties.

1.2 Interpretation

In these terms and conditions unless the context otherwise requires: (a) a reference to a person includes a legal person (such as a limited company) as well as a natural person; (b) clause headings are for convenience only and shall not affect the construction of these terms and conditions; (c) a reference to “including” or any similar terms shall be treated as being by way of example and shall not limit the general applicability of any preceding words; and (d) a reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation.

1.3 Prevailing Terms

Unless Dealer Studio otherwise agrees in writing, these are the only terms and conditions which apply to the provision of Services or the Software by Dealer Studio, and the Customer agrees that these terms and conditions will in all circumstances prevail over any other document, Order or other terms, including the Customer’s terms and conditions of purchase (if any).

1.4 Entire Prior Dealings Excluded

These terms and conditions supersede and exclude all prior and other discussions, dealings, representations (contractual or otherwise) and arrangements relating to the supply of Services or the Software including but not limited to those relating to the performance of the Services or the Software, or the results that ought to be expected from using the Services or the Software.

2. Orders

2.1 Acceptance of Orders

Dealer Studio has sole discretion to accept or reject any Order or any variation or modification of an Order requested by the Customer.

2.2 Cancellation Requests

Dealer Studio has sole discretion to accept or reject any request for cancellation of the Services or the Software or an Order by the Customer that is not in accordance with these terms and conditions.

If such a cancellation request is accepted by Dealer Studio, the Customer will be liable for any direct loss or expense reasonably incurred by Dealer Studio in respect of the Services or the Software or that Order, and Dealer Studio has the right to retain all fees paid by the Customer to Dealer Studio for Services or the Software provided up to and including the date of the cancellation request.

3. Access to and Use of the Services and the Software

3.1 Provision During Term

We will provide you with the Services and access to use the Software during the Term, provided that you pay the applicable Charges and comply with these terms and conditions.

3.2 Access Requirements and Billing Authority

To use and access the Services and the Software, you must have internet access and a compatible device, and provide us with one or more Methods of Payment.

Unless you validly cancel the Services or the Software in accordance with these terms and conditions before your billing date, you authorise us to charge the Charges for the next billing cycle to your Method of Payment.

3.3 Licence Grant

Subject to your payment of the Charges and compliance with these terms and conditions, we grant you a personal, non-exclusive, non-transferable, non-sublicensable and revocable licence to use and access, and to permit the Authorised Users to use and access, the Services and the Software within Australia (or such other jurisdictions agreed by us in writing) during the Term.

3.4 Customer Acknowledgements

You acknowledge and agree that:

(a) the Services and the Software will be provided based on the information and specifications supplied by you, and on the basis that you have checked and verified the accuracy and completeness of all information that we provide as part of the Services and the Software (including on any of your websites, or any other platforms or services);

(b) all information that we provide is supplied in good faith, but we do not warrant or guarantee the accuracy or completeness of any information provided by us or any third party;

(c) it is not within the scope of our obligations to enquire as to, check, or verify, the accuracy or completeness of information that we receive from you or any third parties, or any information that we provide to you as part of the Services and the Software (including on any of your websites, or any other platforms or services);

(d) you are fully responsible to check and verify the accuracy and completeness of all information that we provide as part of the Services and the Software (including on any of your websites, or any other platforms or services) and you agree to indemnify and hold us and our Related Bodies Corporate harmless from and against any and all claims, actions, demands, proceedings, liabilities, losses, damages, expenses and costs that may be brought against us (whether by you or a third party), or which we may suffer or incur in relation to such accuracy or completeness of information.

For the avoidance of doubt, this clause includes all information contained in our sales contract product as part of our Software and Services, including all government charges, drive-away pricing, statutory costs or other like charges or costs.

You acknowledge and agree that: (i) we do not provide any legal, tax or financial advice in relation to the provision of the Software and Services, including our sales contract product, and we recommend that you obtain independent legal advice in relation to the sales contract and all information and terms contained in the contract, including all applicable government charges, drive-away pricing, statutory costs or other like charges or costs; and (ii) government charges, drive-away pricing, statutory costs or other like charges or costs can vary by jurisdiction and change from time to time, and you agree to work collaboratively with us to validate, confirm and communicate applicable government charges, drive-away pricing, statutory costs or other like charges or costs and the calculation of any assumptions in our Services or Software, including to notify us of any incompleteness or inaccuracies;

(e) our Software and Services may enable the execution of documents (including our sales contract product) using third-party electronic signature and document execution services (“Electronic Execution Providers”).

We do not own, control, or operate any third party Electronic Execution Providers and make no representations or warranties regarding the availability, security, performance, or reliability of such services, or the legal validity or enforceability of documents executed through them.

You are fully responsible for determining whether electronic execution is permitted and appropriate for your transactions, including compliance with all applicable laws and regulations relating to the execution of such documents.

To the maximum extent permitted by law, we will not be responsible or liable for any loss, claims, costs, damages, liabilities and/or expenses in connection with the use of any third party Electronic Execution Providers, or the execution of documents through such services.

3.5 Scope Limitation

We are not obliged to provide any software or services under these terms and conditions that are not described in an Order or these terms and conditions and, for the avoidance of any doubt, we do not provide the services or software that are specifically excluded as set out in an Order.

3.6 Subcontractors

We may engage Subcontractors to perform our obligations under these terms and conditions at our discretion.

3.7 Exclusivity

If the Order states that the Services and/or Software are provided on an exclusive basis, you agree to purchase the Services and Software (including the same or substantially similar services and software) exclusively from us.

Nothing in these terms and conditions restricts or otherwise limits our ability to provide the Services or the Software, including any similar services or software, to any third party.

3.8 AI Features

As part of the Services and the Software, we may provide you with access to certain tools and functionalities that utilise or are powered by our and/or third parties’ or licensors’ artificial intelligence systems (“AI Features”), in which case the following terms and conditions will apply:

(a) you are solely responsible for any text, images, materials, or other content you upload to the AI Features (“Input”), as well as the resulting text, images, materials, or other content that is generated from your use of the AI Features (“Output”). You represent and warrant that you have all rights, licences, and permissions needed to provide the Input;

(b) you must ensure that all Input does not contain any personal information. You must also ensure that all Input does not contain any illegal, unlawful, harmful or abusive content, or any other content which may infringe, misappropriate or violate the rights of any other third party;

(c) you may only use the AI Features for the intended purposes connected with the Software or the Services and must not use the AI Features for any illegal, unlawful, criminal, harmful or abusive purpose, or any other like purpose. You may not automatically or programmatically extract data or Output, or use Output to develop models that compete with the Software or the Services.

Further, your use of the AI Features must comply with all applicable laws, and you acknowledge and agree that your use of the AI Features is entirely at your own risk. You must also comply with any other documentation, guidelines, or policies we make available to you in relation to the AI Features;

(d) we make no representations, warranties, or guarantees whatsoever regarding the accuracy, completeness, or reliability of the AI Features or any Output, and we accept no liability for any errors, omissions, or reliance on the AI Features or Output.

You must evaluate Output for accuracy and appropriateness for your use case, including using human review as appropriate, before using or sharing Output from the AI Features.

You acknowledge that artificial intelligence and machine learning are rapidly evolving fields of study and while we are constantly working to improve the Software and the Services to make them more beneficial, given the probabilistic nature of artificial intelligence and machine learning, the use of the AI Features may, in some situations, result in Output that does not accurately reflect real people, places, or facts.

You agree to indemnify and hold us and our Related Bodies Corporate harmless from any such matters relating to accuracy, completeness, reliability, errors or omissions;

(e) we may use the Input and Output to provide, maintain, develop, and improve the Software or the Services, to comply with applicable law, to enforce our rights or policies, and to keep the Software and the Services safe. By providing such Input (including any personal information or confidential or sensitive data) and using the AI Features, you consent to the sharing of your Input (including any personal information or confidential or sensitive data) with third-party providers or licensors in relation to the Software and the Services;

(f) we may impose limits on the number of items that can be generated using the AI Features and will notify you if you have reached your limit. Some AI Features are not available in all languages;

(g) we reserve the right to remove any text, images, materials, or other content from the AI Features from the Software or the Services, to disclose it to any law enforcement or government authorities, and/or to suspend or terminate your access to the Software or the Services (including the AI Features) if your use of the AI Features breaches these terms and conditions, or is otherwise illegal, unlawful, harmful, abusive, or otherwise infringes, misappropriates or violates the rights of any other third party.

4. Use of the Services and the Software

4.1 Internal Business Use Only

You agree to only use the Services and the Software for your internal business use and you may not disclose your access to and use of the Services or the Software with individuals beyond your business, unless such disclosure is authorised expressly by us under these terms and conditions.

4.2 Compliance With Laws

You agree to use the Services and the Software (including all features and functionalities) in accordance with all applicable laws, rules and regulations, and any other restrictions on use of the Services and the Software, including as set out in an Order, or any requirements, policies or terms required by our third party licensors of the Software (if any).

Without limitation, your obligations in relation to using the Services and the Software include that you are solely responsible for ensuring your use is in accordance with all applicable Privacy Laws including addressing all applicable notification, consent and screening requirements (which may include screening against the Do Not Call Register and marketing opt-out / unsubscribe instructions).

You must not take any act or omission that would cause us to be in breach of any applicable law, regulation or regulatory obligation, including in relation to privacy or data security or protection.

4.3 Usage Limits

You must not exceed the specified number of users or volumes specified in an Order at any given time.

If there is excessive use of the Services or the Software, you acknowledge and agree that we will charge additional fees in accordance with the relevant Order, or, if none is specified, in accordance with our then current price list.

4.4 Prohibited Conduct

You will not (directly or indirectly), and you will ensure the Authorised Users do not:

(a) modify the Services or the Software or merge any aspect of the Services or the Software with another programme other than as expressly provided under these terms and conditions;

(b) record, reverse engineer, copy, duplicate, reproduce, create derivative works from, frame, download, display, transmit or distribute any of the Services or the Software, the source code of the Services or the Software or any documents, manuals or setup instructions provided with the Services or the Software, unless such use is authorised expressly by Dealer Studio under these terms and conditions;

(c) circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the Services or the Software; use any robot, spider, scraper or other automated means to access the Services or the Software; decompile, reverse engineer or disassemble any software or other products or processes accessible through the Services or the Software; insert any code or product or manipulate the content of the Services or the Software in any way; or use any data mining, data gathering or extraction method;

(d) licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;

(e) engage in unlawful behaviour, including unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;

(f) access, store, distribute or transmit: (i) viruses, worms, trojans or other malicious code that corrupts, degrades or disrupts the operation of the Services or the Software; (ii) material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party; (iii) material that facilitates illegal activity; or (iv) material that abuses or causes damage or injury to any person or property;

(g) provide login details or passwords, or otherwise provide access to the Services or the Software, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, the Services or the Software;

(h) share any features or functionalities of the Services or the Software that are not publicly available with any unauthorised third party without our consent in writing; and

(i) engage in any conduct while using the Services or the Software that is in breach of these terms and conditions.

4.5 Non-Compete Restriction

To the maximum extent permitted by law, you must not create, develop or devise, whether directly or indirectly, alone or together with any third party (including any Related Bodies Corporate) any platform, software, service or offering which provides software or services which are the same as, similar to or compete with the Services or the Software.

4.6 Personal Rights Only

All rights granted to you under these terms and conditions are personal, and these rights must not be leased, assigned, sold, licensed, resold or transferred to any third party in any manner whatsoever.

You must not in any way encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Services or the Software.

4.7 Breach Consequences

Any breach of this clause 4 constitutes a breach of these terms and conditions and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Services or the Software, and/or take further actions against you for breach of these terms and conditions.

5. Your Obligations

5.1 Minimum Term Commitment

If you have committed to a minimum term in any Order or under these terms and conditions, if you cancel or terminate the Services or the Software, or if we terminate due to your breach of these terms and conditions, you agree to pay us the Charges for the Services and the Software in accordance with these terms and conditions which would have otherwise been payable or applicable for the full duration of the minimum term specified, without limiting any other rights or remedies available to us.

5.2 Cooperation and Customer Responsibilities

You acknowledge that our ability to provide the Services and the Software to you is dependent on your full and timely cooperation.

You must and will ensure that the Authorised Users:

(a) promptly provide us with timely access to information and personnel required to provide the Services and the Software, and otherwise co-operate with and assist us in the provision of the Services and the Software;

(b) promptly provide us with full and accurate information, data and explanations (as and when required), and check and verify the accuracy and completeness of all information that we provide as part of the Services and the Software (including on any of your websites, or any other platforms or services);

(c) comply with all applicable laws, regulations and industry standards with respect to your activities and obligations under these terms and conditions;

(d) ensure that your network and systems comply with the relevant specifications and guidelines required for us to provide the Services and the Software, or as otherwise required by us from time to time; and

(e) comply with all reasonable directions and guidelines from us as advised from time to time.

5.3 Third-Party Rights

You must procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Services and the Software to you.

5.4 Non-Solicitation

You must not, directly or indirectly, solicit, entice or induce any of our personnel to cease or reduce their employment or engagement with us, without our prior written consent.

5.5 Security Measures

You must ensure that you have implemented and will maintain appropriate technical and organisational security measures, and internal policies, procedures, guidelines and systems necessary to protect and secure the Software and Services, and any data or personal information, and to otherwise ensure your compliance with the terms of this Agreement, including industry best practice for handling equivalent categories of data and personal information and which includes at a minimum:

(a) multi-factor authentication (MFA) on all human user and administrative accounts and API access authenticated via dedicated API keys or tokens with appropriate rotation requirements;

(b) access controls based on the principle of least privilege, with role-based access and regular access reviews conducted no less frequently than monthly;

(c) credential management including mandatory rotation of all passwords, API keys and access tokens at intervals not exceeding 60 days, and immediate revocation upon personnel departure or role change; and

(d) any other third-party service providers handling the data or personal information in connection with this Agreement are to be bound by data security obligations at least equivalent to those set out in this Agreement and in accordance with industry best practice.

5.6 Ongoing Review of Security Measures

You must evaluate the technical, organisational, security and other measures as required or implemented in accordance with this Agreement on an ongoing basis and will tighten, supplement and improve these measures from time to time.

5.7 Security, Data or Privacy Breach

If you become aware of a breach or potential breach of security, data or privacy, you must immediately (and in any event within 24 hours) notify us of such breach or potential breach (or if we become aware of a breach or potential breach of security, data or privacy, we will notify you) and you must:

(a) identify the cause of such breach or potential breach, the nature and scope of breach or potential breach, the categories and approximate volume of data or any personal information affected, the likely consequences of the breach or potential breach and the measures taken or proposed to be taken to address the breach or potential breach and mitigate its effects;

(b) use reasonable endeavours to immediately remedy any breach, communicate to us whether and how the consequences of such breach may be mitigated or remedied, and take steps as may be requested by us in order to minimise the impact of the breach;

(c) if a potential breach has not become an actual breach, take immediate measures to prevent it from becoming an actual breach;

(d) provide us with a written report detailing the cause of, and procedure for correcting (to the extent it is capable of being corrected), the breach and its consequences or potential breach (in any event within 48 hours from the date that the breach or potential breach was discovered), or such other time period as notified by us to you in writing;

(e) assist us in identifying any compromised data or personal information when requested by us at no cost to us; and

(f) provide us with regular written updates (no less frequently than daily during the initial response period, and weekly thereafter) until the breach or potential breach is fully resolved.

5.8 Cyber Liability Insurance

You must maintain, at your own cost and for the duration of this Agreement and for a reasonable period thereafter, a cyber liability insurance policy with a reputable insurer, providing sufficient coverage for claims which may arise under this Agreement, including in relation to privacy breaches, data breaches, cyber incidents and related liabilities, and provide to us evidence of such coverage and a copy of such policy upon request by us.

5.9 Personal Information Obligations

In relation to any personal information in connection with this Agreement, you must:

(a) take all reasonable measures to ensure that such personal information is protected against loss, and against unauthorised access, use, modification, disclosure or other misuse;

(b) at your own expense, comply with all requirements in respect of notifiable data breaches in respect of any personal information;

(c) notify us immediately (and in any event within 24 hours) upon becoming aware of a notifiable data breach (and provide all relevant updates) relating to such personal information and comply with our reasonable requests and directions (if any) in relation to the notifiable data breach;

(d) in respect of notifiable data breaches, assist us to comply with any of our notifiable data breach obligations or requirements;

(e) notify us promptly (and in any event within 48 hours) of any request received from an individual in relation to any personal information about the individual in connection with this Agreement which may impact us, and comply with any of our reasonable directions in respect of such request;

(f) ensure that any and all of your Authorised Users comply with the terms of this Agreement; and

(g) delete personal information and/or authorise or allow us to delete personal information in order to comply with Privacy Laws, or any other data security or protection laws or regulations.

6. Charges and Payment

6.1 Payment of Charges

You will pay us the Charges to access and use the Services and the Software in accordance with these terms and conditions.

6.2 Currency and GST

The Charges, unless stated otherwise, are in Australian Dollars and expressed to exclude GST.

6.3 Invoice Terms

Unless otherwise agreed in writing by us, including where otherwise identified on any invoice issued by us, all invoices are payable by you within 30 days from the date of invoice.

We reserve the right to invoice you either:

(a) before the provision of Services or the Software; (b) during the provision of Services or the Software; or (c) after the provision of Services or the Software.

6.4 Late Payment

If payment of the Charges is not received by us by the due date under these terms and conditions, we will be entitled, without prejudice to any other right or remedy available to us under these terms and conditions or at law, to:

(a) withhold provision of the Services and/or the Software, or suspend your access to or use of any or all of the Services and the Software, until payment of the outstanding invoice (including any interest payable under these terms and conditions) is received by us in full;

(b) charge interest on the outstanding amount at a rate equivalent to the official cash rate set by the Reserve Bank of Australia, calculated daily from the relevant invoice due date until the date of payment in full of the overdue debt; and

(c) terminate the Services or the Software and these terms and conditions.

6.5 Invoice Disputes

You will be deemed to have accepted an invoice issued by us to you if no dispute is raised in writing by you to us together with all reasonable evidence supporting your dispute within 10 Business Days of the date of the invoice.

If you provide us with such a dispute notice, you agree to meet within 5 Business Days of the date we receive the dispute notice and use all reasonable endeavours to reach agreement to resolve the dispute in respect of the invoice.

A dispute will not affect payment of non-disputed fees on the same invoice, or the payment of any other invoices due by you, and you agree to pay any undisputed amount whilst the dispute is being resolved.

If it is resolved by the parties that some or all of the amount in dispute ought to have been paid when due at the time it was invoiced, then the Customer will pay the amount finally resolved, together with interest on that amount in accordance with these terms and conditions.

6.6 Collection Costs

You agree to bear all reasonable costs incurred by us in collecting any overdue amounts including but not limited to collector agency fees, legal fees and court costs.

6.7 GST and Other Taxes

Notwithstanding any other clause in these terms and conditions, to the extent that any supply made under or in connection with these terms and conditions attracts GST, you must pay to us, in addition to the consideration provided for under these terms and conditions for that supply, an amount equal to the amount of that consideration multiplied by the rate at which any GST is imposed in respect of the supply.

You must pay to us the additional amount at the same time as the consideration to which it is referable.

You are responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the Services and the Software.

6.8 Tax Deductions

You will make all payments for the Charges without any deduction for tax unless a tax deduction is required by law.

If you are required to make a tax deduction by law, the amount due will be increased to the amount that, after making the tax deduction, upon deduction of the amount attributable to tax equals the amount which would have been due if no tax deduction had been required.

6.9 Annual Price Review

Without limiting any other provision of this Agreement, the Charges will be reviewed annually and compared to the annualised Consumer Price Index and may be adjusted on 1 January each year to reflect any justified price movements.

The method for determining any annual price adjustment will be based on actual movements of the Australian Bureau of Statistics (ABS) Consumer Price Index (CPI) for All Groups nationally, unless otherwise stated.

6.10 Price Alterations

The Charges, including any prices, pricing schedule, price indication or price list provided by Dealer Studio to the Customer or otherwise made available to the Customer, are subject to further alteration at any time on reasonable notice provided by Dealer Studio to the Customer.

Such price change will not apply retrospectively and we will use reasonable endeavours to provide up to 60 days’ written notice of any such price change.

If the Customer finds any modified price unacceptable, the Customer may cancel or terminate the Services or the Software but such cancellation or termination will not impact any current Orders to which the modified price does not apply.

6.11 No Set-Off

You may not set off any amounts owing by us to you with any amounts owing by you to us under these terms and conditions, whether present or future, actual, contingent or prospective and on any account whatsoever.

7. Intellectual Property and Data

7.1 Ownership of Customer IP and Data

You retain ownership rights to the Customer Background IP and the Customer Data.

However, for the avoidance of any doubt, the ownership of any data that originates from third parties is subject to your contractual arrangement or agreement with the third party.

You agree to indemnify and hold us and our Related Bodies Corporate harmless in relation to any loss, damage, liability or claim suffered or incurred by us or our Related Bodies Corporate in respect of any data provided in connection with this Agreement which is or may be owned by a third party, including under your contractual arrangement or agreement with the third party.

7.2 Licence Granted to Dealer Studio

You grant us:

(a) the right to use the Customer Background IP and the Customer Data for the purposes of providing the Services and the Software under these terms and conditions and the right to obtain, by any means, all Customer Data; and

(b) a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence, including the right to sub-licence, to publish, reproduce, make available, perform and display, translate, modify, create derivative works from, distribute and otherwise use any and all such Customer Data (including any vehicle listings published on your website) through any medium, including print, online or other, whether alone or in combination with other content or materials, in any manner and by any means, method or technology in connection with the provision of the Services or the Software, and/or to develop and improve the Services and the Software and/or to use the Customer Data for other purposes which we consider reasonably necessary or desirable for our business operations.

You also agree to waive, and not to enforce, any moral rights or equivalent rights, such as the right to be identified as the author of any Customer Data.

7.3 Customer Warranty of Rights

You represent and warrant that you have the necessary rights, including all required permissions and authorisations, to provide the Customer Background IP and the Customer Data that you provide to us in connection with the Services, the Software and these terms and conditions.

7.4 Alteration of Customer Data

You consent to the alteration, modification or adaptation of your Customer Data by us for any reason, including to ensure that your Customer Data does not infringe these terms and conditions.

7.5 Moral Rights Consent

To the extent that you or any third party has moral rights in the Customer Data, you provide, or have obtained from any such third parties, an irrevocable and unconditional consent in favour of us, our successors, assignees, licensees and any other person authorised by any of them to use, modify or deal with the Customer Data, whether or not currently in existence, in accordance with this clause.

7.6 Ownership of Dealer Studio IP

We retain ownership rights to Dealer Studio’s Background IP.

For the avoidance of any doubt, all Intellectual Property Rights and any other rights, title or interest in and to the Services and the Software and any information or technology that may be provided to, or accessed by, you in connection with your use of the Services or the Software is owned, and will remain owned, by us or our licensors.

Using or accessing the Services or the Software does not transfer any ownership or rights, title or interest in and to Dealer Studio’s Background IP or any other Intellectual Property Rights owned by us or our licensors.

7.7 Developed IP

All Intellectual Property Rights, including alterations, modifications and enhancements to, and applications, developments and adaptations thereof, discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Services or the Software will automatically vest in, and are assigned to, us (collectively, the “Developed IP”).

All rights in and to Developed IP vest in us immediately upon creation and you hereby assign to us absolutely and beneficially all rights, including Intellectual Property Rights, to or interest in any Developed IP.

To the extent that any rights to, or interest in, the Developed IP do not vest in or are not assigned to us under this clause, you undertake to do all things necessary and required by us for the proper vesting or assignment of such rights, including executing all documents or assignments and providing all necessary information, records or materials to us or any other party.

We grant you a non-exclusive, revocable and royalty-free licence, subject to the payment of the Charges and compliance with these terms and conditions, to use the Developed IP for the purposes required under these terms and conditions.

7.8 Restrictions on Resale or Disclosure

To avoid doubt, the Customer is not authorised or permitted to sell or grant additional licences, sub-licences or any other access to the Services or the Software or use or otherwise disclose data, information or content obtained through the Services or the Software to third parties for any purpose, other than as expressly permitted by Dealer Studio.

7.9 IP Infringement Notification

You agree to immediately notify us if you become aware that the Services or the Software may infringe on the Intellectual Property Rights of a third party.

7.10 Marketing Reference Rights

You agree that we may refer to you, your business name, publish your logo and/or trade mark and make reference to you as a customer of ours in any communications or publications for the purposes of marketing or promoting our business.

7.11 Third-Party Websites

Dealer Studio is not endorsed by, directly affiliated with, maintained, authorised or sponsored by any third-party websites to which it provides hyperlinks to and the Customer’s access to and use of any third-party websites is at the Customer’s own risk.

7.12 Third-Party Trade Marks

Any product names, company names, logos, brands and other trade marks or images featured or referred to on the Services or the Software are the property of their respective trade mark holders.

These trade marks may be registered or protected by law and the Customer is not permitted to use any trade mark featured or referred to on the Services or the Software without the prior written consent of the relevant trade mark holder.

8. Service Levels and Warranties

8.1 Availability

We will use reasonable endeavours to provide constant, uninterrupted access to the Services and the Software, but with any software-based product, this cannot be guaranteed.

We will not be responsible or liable for any direct or indirect losses or damages suffered or sustained by you as a result of, or in connection with, any interruption or delay in accessing and using the Services or the Software, or any inaccuracy or incompleteness of any information that we provide as part of the Services and the Software, including on any of your websites, or any other platforms or services.

8.2 Error Investigation

We will use reasonable endeavours to investigate all problems or errors in the Services or the Software, provided that you notify us in writing within seven (7) days following the problem or error occurring and you give us all necessary information to conduct an investigation into the matter.

8.3 Consumer Guarantees

Except where legislation may not be limited, or where a limitation of a liability would otherwise render us liable to a penalty, our liability for any breach or non-compliance with a Consumer Guarantee in connection with the provision of the Services or the Software and these terms and conditions is limited to any one of the following, as determined by us:

(a) the refund of the price paid by you for the Services or the Software; or (b) re-performance of supply of the Services or the Software.

8.4 No Further Warranties

To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services or the Software provided hereunder is given or assumed by us other than as required at law.

You acknowledge and agree that the Services and the Software are provided on an “as is” basis and that you will make your own investigations into whether or not the Services and the Software are fit for your purposes.

8.5 No Guarantees as to Content or Security

We make no representations, warranties or guarantees:

(a) that content available on, or produced by or via, the Services or the Software is accurate, complete, reliable, current, error-free or suitable for any particular purpose. This content is provided on an “as is” basis and you acknowledge and agree that you exercise absolute discretion in choosing how to use this content; or

(b) as to the availability of the Services or the Software or that the Services or the Software are or will be free from viruses, worms, trojans or other malicious code. You are responsible for taking your own precautions in this respect.

9. Liability and Exclusions

9.1 Limitation of Liability

Our total liability to you or any third party, whether based on warranty, contract, tort, statute, misrepresentation or otherwise, arising out of, or in connection with, these terms and conditions, for any one event or a series of related events, will be limited to the total Charges paid, excluding GST and expenses, by you to access and use the Services and the Software in the 12 months immediately prior to the event or events.

We will not be liable under these terms and conditions to the extent that any loss, claims, costs, damages, liabilities and/or expenses are caused or contributed to by you, or your Authorised Users, acts or omissions, including a failure by you or your Authorised Users to check and verify the accuracy and completeness of all information that we provide as part of the Services and the Software, including on any of your websites, or any other platforms or services.

For the avoidance of any doubt, this includes the matters referred to in clause 3.4.

Our liability to you will not be limited if it is unlawful to do so and, subject to clause 9.4, the limitation of liability in this clause does not apply if your loss is as a result of our fraud.

9.2 Customer Responsibility for Use

You assume sole responsibility for your, and your Authorised Users’, use of the Services and the Software, including any content contained therein, and for any reliance on, and use of, conclusions drawn from such use.

9.3 No Liability for Customer Instructions or Information

We will have no liability for any loss, claims, costs, damages, liabilities and/or expenses suffered or incurred by you or any third party, due to any errors or omissions in any information or instructions provided to us by you in connection with the Software, the Services or any actions taken by us at your direction.

9.4 Excluded Losses

In no event will we be liable to you or any third party for any:

(a) loss of profits, revenue, goodwill or business, business interruption, corruption, loss or alteration of data, downtime costs, loss of use, failure to realise anticipated savings or for any indirect or consequential loss or damage of whatsoever nature, however caused;

(b) breach by you, any Authorised User or any third party of the Intellectual Property Rights of a third party or any laws, regulations or any relevant industry codes;

(c) viruses, worms, trojans or other malicious code introduced into, or transmitted to, you or any third party during the course of using the Services or the Software; or

(d) loss of or damage to any property belonging to you, any Authorised User or any third party or any personal injury or death arising out of or in connection with these terms and conditions.

9.5 Allocation of Risk

The parties acknowledge that the limitations of liability contained in this clause 9 are a fair and reasonable allocation of the commercial risk between the parties.

10. Indemnity

You agree to indemnify and hold us, our Related Bodies Corporate and our officers, directors, employees and contractors (collectively, the “Indemnified”) harmless from and against any and all claims, actions, demands, proceedings, liabilities, losses, damages, expenses and costs that may be brought against the Indemnified or which the Indemnified must pay, sustain or incur as a direct or indirect result of or arising out of:

(a) breach by you or any Authorised User of any of your obligations under these terms and conditions or misuse of the Services or the Software;

(b) breach of any third party’s Intellectual Property Rights; or

(c) breach by you or any Authorised User of any law, including Privacy Laws.

11. Confidentiality

11.1 Confidential Information

Each party agrees not to use or disclose confidential information received or disclosed to it by the other party in the negotiation or operation of these terms and conditions, save for such use or disclosure necessary and required to perform their respective obligations under these terms and conditions.

Disclosure will be, in any event, only made to the receiving party’s employees, officers, agents or contractors to whom it is necessary to do so and who are directly involved in performing the receiving party’s obligations.

11.2 Responsibility for Recipients

In making disclosure to persons as permitted under this clause 11, the receiving party will ensure that persons receiving the disclosing party’s confidential information will comply with the same obligations regarding confidentiality as that of the receiving party.

11.3 Exceptions

Information is not to be regarded as confidential, and the receiving party will have no obligation regarding confidentiality, where that information:

(a) is already in the public domain; (b) enters the public domain through no fault of the receiving party; (c) is received from a third party without any obligations of confidentiality; (d) is used or disclosed with the prior written consent of the disclosing party; (e) is disclosed in compliance with a legal requirement; or (f) is independently developed by the receiving party.

11.4 Return or Destruction

Any confidential information held by a receiving party will be returned to the disclosing party or destroyed at the written request of the disclosing party.

12. Privacy

12.1 Compliance With Privacy Laws

Each party must, in connection with these terms and conditions:

(a) ensure that it and its employees, contractors and agents are aware of their obligations under all applicable Privacy Laws;

(b) at all times comply with their obligations under applicable Privacy Laws; and

(c) take reasonable steps to assist each other to comply with their obligations under applicable Privacy Laws as may be required and notified from time to time.

12.2 Privacy Policy

We collect, use, disclose, store and handle your personal information in accordance with our Privacy Policy.

By using or accessing the Services and the Software, or otherwise dealing with us, you agree that you have read and understood the Privacy Policy and agree to be bound by its provisions.

12.3 Customer Warranty Regarding Personal Information

You warrant and represent that you will not provide any Customer Data that includes or incorporates any personal information or confidential information of another person without the consent of that other person.

12.4 Third-Party Providers

You acknowledge that we may use third-party providers, including software solutions, applications or other tools, and you consent, and must obtain the consent of any relevant person, to cause or allow personal information to be disclosed, transferred or handled by those third-party providers in order for us to provide the Services or the Software.

12.5 Privacy Law Breaches

If either party becomes aware of any actual or alleged breach of the Privacy Laws concerning information disclosed by us to you or by you to us, then that party must notify the other immediately and comply with all reasonable directions in respect of such breach.

13. Term and Termination

13.1 Term

Your use and access to the Services and the Software will continue for the Term subject to these terms and conditions.

13.2 Termination Without Cause

Either party may cancel or terminate the Services or Software under these terms and conditions without cause at any time by providing the other party with 30 days’ written notice.

However, if the Customer has committed to a minimum term in any Order, the Customer may only cancel or terminate the Services or the Software under this clause after the minimum term.

13.3 Immediate Termination by Dealer Studio

We may terminate the Services, the Software or these terms and conditions, or at our discretion suspend the provision of the Services or the Software, immediately if:

(a) you fail to pay any invoice and such sum remains unpaid for 14 days; (b) you or your Authorised Users otherwise breach the terms of this Agreement; or (c) you or your Authorised Users’ acts or omissions may materially impact our ability to provide the Services or the Software or otherwise cause harm to us.

13.4 Termination for Breach or Insolvency

Either party may terminate the Services, the Software or these terms and conditions immediately by giving written notice to the other party if:

(a) the other party is in breach of these terms and conditions and fails to remedy the breach within 30 days of being notified of the breach, if it is capable of being remedied; or

(b) the other party suffers an Insolvency Event.

13.5 Charges on Termination

On cancellation or termination of the Services, the Software or these terms and conditions for any reason, we will be entitled to immediate payment for all Charges properly incurred up to the date of cancellation or termination, and during any applicable notice period.

Cancellation or termination of the Services, the Software or these terms and conditions does not relieve you of any obligation to pay us any outstanding amount required pursuant to these terms and conditions.

13.6 Return of Property and End of Licence

On the cancellation, termination or expiry of the Services, the Software or these terms and conditions, you will return all of our confidential information, Dealer Studio’s Background IP, Developed IP and any other property belonging to us in your possession, control or custody.

Upon cancellation, termination or expiry of the Services, the Software or these terms and conditions, the licence, including to any Intellectual Property Rights, granted by us to you under these terms and conditions will automatically be terminated.

14. Situations or Events Outside Our Reasonable Control and Force Majeure

14.1 Events Outside Our Control

There are certain situations or events that may occur which will not be within our reasonable control.

Where this occurs, we will notify you of these circumstances and attempt to recommence providing the Services and/or the Software, as applicable, as soon as we are able.

In such circumstances, there may be a delay, sometimes a substantial delay, before we can start or continue providing the Services and/or the Software.

14.2 No Liability for Force Majeure Events

We are not liable for any failure to perform any of our obligations under these terms and conditions as a result of any event beyond our reasonable control including, without limitation, where we are prevented or hindered from providing, delivering or supplying the Services and/or the Software, including as a result of:

(a) strikes; (b) lockouts or other labour difficulty; (c) inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms; (d) power or water shortage; (e) accidents or breakdowns of plant, machinery, software, hardware or communication network.

In such circumstances, we may suspend performance of any obligations under these terms and conditions while the event continues. We shall not incur any liability to you in respect of such suspension.

14.3 Extended Force Majeure

If any of the above events occur for more than 60 days, either party may, without liability, terminate the Services, the Software and these terms and conditions immediately by notice in writing to the other party.

15. Notices

15.1 Method of Notice

Any notice required to be given pursuant to these terms and conditions will, unless otherwise stated, be in writing and be sent to the other party at the email address specified in these terms and conditions, or to such other address as either party may from time to time notify the other in accordance with this clause.

15.2 Deemed Delivery

A notice given under clause 15.1 will be deemed to have been delivered 24 hours after the email is sent.

16. Dispute Resolution

16.1 Dispute Notice

If a dispute arises in relation to these terms and conditions, a party (“Disputing Party”) may give the other party (“Recipient”) a written notice adequately identifying the matters in dispute (“Dispute Notice”).

16.2 Informal Resolution

Within 10 days of the Disputing Party giving a Dispute Notice, the parties must meet informally and attempt to resolve the dispute.

If a resolution is not achieved within 10 days from the informal meeting, either party may give the other party written notice requiring the dispute to be referred to mediation (“Mediation Notice”).

16.3 Mediation Process

If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within 7 days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair’s designated representative.

The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.

16.4 Costs of Mediation

The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.

16.5 Litigation Restriction

No party may commence litigation unless they have first complied with this clause 16, except where the party is seeking urgent interlocutory relief.

16.6 Continued Performance

Notwithstanding the existence of a dispute, each party must continue to perform its obligations under these terms and conditions.

16.7 Survival

This clause 16 survives the termination or expiry of these terms and conditions.

17. General

17.1 Changes to Terms

If we change these terms and conditions, such changes will not apply retrospectively.

We will reasonably endeavour to provide you with 60 days’ notice of material changes to these terms and conditions before they become effective.

When we provide a notice to you, we will do so via email or by posting a visible notice through our Services or the Software.

If you find a modified term unacceptable, you may cancel or terminate the Services, the Software or these terms and conditions by giving written notice to us in accordance with these terms and conditions prior to the end of the 60 days.

If you continue to use the Services or the Software following conclusion of the 60 days’ notice of change, then you are deemed to have accepted the revised terms and conditions.

17.2 Survival of Clauses

The provisions of these terms and conditions that are capable of having effect after the cancellation, termination or expiry of the Services, the Software or these terms and conditions will remain in full force and effect following the cancellation, termination or expiry of the Services, the Software or these terms and conditions.

17.3 Assignment

You must not, without our prior written consent, which will not be unreasonably withheld, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these terms and conditions.

17.4 Waiver

If either party chooses to waive or ignore a breach of these terms and conditions, this will not prevent that party from taking action in respect of the same type of breach at a future date.

17.5 Relationship Between the Parties

Nothing in these terms and conditions is intended to create or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these terms and conditions.

Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party’s behalf.

17.6 Severability

If any provision of these terms and conditions is held invalid or unenforceable, such provision will be deemed deleted from these terms and conditions and replaced by a valid and enforceable provision which so far as possible achieves the parties’ intent in agreeing to the original provision.

The remaining provisions of these terms and conditions will continue in full force and effect.

17.7 Governing Law

These terms and conditions are governed by the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.

17.8 Electronic Execution

These terms and conditions may be executed electronically and in any number of counterparts.

All counterparts together will be taken to constitute one instrument.

The parties consent to the use of electronic execution technology for these terms and conditions.

17.9 Entire Agreement

These terms and conditions constitute the entire agreement between the parties in respect of the subject matter of these terms and conditions and supersede and replace any prior written or oral agreements, representations or understandings.

The parties confirm that they have not relied on any representation that is not expressly incorporated into these terms and conditions.