DesperateSeller Search Function Agreement - Terms and Conditions

1 DEFINITIONS AND INTERPRETATION

1.1 In this Agreement the following words and phrases shall have the following meanings:

“DesperateSeller” DesperateSeller.co.uk Ltd incorporated and registered in England and Wales with company number 04369782 whose registered office is at Rowan House, Hill End Lane, St. Albans, Hertfordshire, AL4 0RA, United Kingdom;

“Partner” the company placing the DesperateSeller Search Functionality on their website(s);

“Agreement” means this agreement set out by the Standard Terms and Conditions;

“Click” means activation by the User of a sponsored Listing (e.g. by clicking on the relevant hypertext link and/or image link) appearing on the DesperateSeller’ Site;

“Click Revenue” an agreed fee per unique click to be paid to the partner, at any time this fee can be amended via written confirmation from DesperateSeller to the Partner;

“Monthly Click Limit” the maximum amount of Clicks the partner will receive a Click Revenue during any given month;

“Confidential Information” has the meaning set out in Clause 12;

“Initial Term” 3 months followed by a rolling agreement period of 1 month automatically starts unless one months’ notice has been served;

“Intellectual Property Rights” means the rights in and to, including without limitation, trade secrets, patents, copyrights, trademarks, service marks, rights (registered or unregistered) in designs, database rights (including rights of extraction), know-how, moral rights, lists of suppliers and customers and the proprietary knowledge in such information, domain names, rights protecting goodwill and reputation and similar rights of all types to the foregoing under the laws of any governmental authority, domestic or foreign, including all renewals, applications and registrations relating to any of the foregoing;

“Invalid Clicks” means any Clicks directly or indirectly generated through any automated, deceptive, duplicate dealer clicks within a 24 hours period, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, the offer of incentives);

“Listing” means a hypertext link and/or and/or image link available on the Partner Site, which displays all or part of a car advertisement and which is intended to allow Users to: (i) access the DesperateSeller Site or web pages or sites hosted by DesperateSeller or Dealers that display fuller details of the Listing;

“DesperateSeller Search Functionality” means all of the various comparison technologies developed and implemented by DesperateSeller allowing a User to obtain a Results List;

“DesperateSeller Site” means (i) www.DesperateSeller.co.uk; and/or (ii) sites (including, without limitation, via mobile) using the DesperateSeller databases or DesperateSeller Search Functionality, and showing the Listings following a keyword search or category search and any other online marketing tools employed by DesperateSeller;

“DesperateSeller Tracking Code” means coding that enables DesperateSeller to monitor the number of Users;

“DesperateSeller Trade Marks” means the trade marks, service marks, logos, trade names, business names and brands provided by DesperateSeller to Partner for use in connection with this Agreement;

“Notice Period” one month after the initial term has been served;

“Results List” means results relating to a product or service appearing on one webpage on DesperateSeller Site following a keyword and/or category search using the DesperateSeller Search Functionality which compares classified car advertisements;

“User” means any unique person visiting the DesperateSeller Site, irrespective of their location or place of residence.



2 RECORDING OF CLICKS

2.1 Subject to the remaining provisions of this Clause 2, DesperateSeller’ calculation and recording of Clicks on the DesperateSeller Site shall be used for the purpose of this Agreement. The Parties acknowledge and agree that DesperateSeller may engage sub-contractors to calculate and record Clicks or Calls.

2.2 Only unique Clicks on the DesperateSeller Site by a User shall be used to calculate the Revenue for the purposes of this Agreement. Any subsequent Clicks on the DesperateSeller Site by a User shall be invalid.



3 TERM

3.1 This Agreement shall commence when the DesperateSeller Search Functionality has been inserted into the Partners websites and shall, unless terminated earlier in accordance with its terms, continue for the Initial Term.



4 OBLIGATIONS OF DESPERATESELLER

4.1 DesperateSeller will supply the DesperateSeller Search Functionality to Partner and DesperateSeller hereby grants Partner a non-exclusive, royalty free licence to use the DesperateSeller Search Functionality, on the Partner Site.

4.2 DesperateSeller shall at all times host the DesperateSeller Site on servers owned, operated or licensed by it.

4.3 DesperateSeller shall use reasonable endeavours to ensure the DesperateSeller Search Functionality does not contain or link directly to any content that is unlawful or otherwise infringes or violates the rights of any person or third party.



5 OBLIGATIONS OF PARTNER

5.1 During the Term, the Partner will incorporate the DesperateSeller Search Functionality on the Partner Site. The Partner will ensure that at all times it uses the most recent updated DesperateSeller Search Functionality provided to it by DesperateSeller and shall update the DesperateSeller Search Functionality as soon as reasonably practicable and in any event within 24 hours of receipt.

5.2 Partner shall at all times host the Partner Site on servers owned, operated or licensed by it.

5.3 Partner shall use reasonable endeavours to ensure that the Partner Site does not contain or link directly to any content that is unlawful or otherwise infringes or violates the rights of any person or third party

5.4 Partner shall not (and shall not permit any third party to) copy, adapt, alter, modify, disable the functionality or make error corrections to the DesperateSeller Search Functionality or any information contained therein, in whole or in part, save as required by law or agreed in writing by DesperateSeller.

5.5 Partner shall not provide the DesperateSeller Search Functionality (if applicable) in whole or in part to any third party or to any other websites (owned by the Partner or otherwise) without DesperateSeller’ prior written consent. Partner shall remove immediately, on demand, the DesperateSeller Search Functionality and any other content provided by DesperateSeller which has been distributed without such prior written consent.



6 CONTENT

6.1 During the Term, DesperateSeller hereby grants Partner a non-exclusive, royalty free licence to use the DesperateSeller Search Functionality and the DesperateSeller Trade Marks, on the Partner Site subject to any instructions or brand guidelines as may be notified to Partner by DesperateSeller.

6.2 DesperateSeller reserves the right to reformat the DesperateSeller Search Functionality or any part of it including but not limited to the addition and removal of information and fields (“Redesign”). Any such Redesign shall not be deemed a breach of this Agreement.

6.3 Partner acknowledges that the DesperateSeller Trade Marks and the DesperateSeller Search Functionality are the property of DesperateSeller and nothing in this Agreement shall confer on Partner any right of ownership in the DesperateSeller Trade Marks or the DesperateSeller Search Functionality. The Partner reserves all Intellectual Property Rights which may, at any time, subsist in the DesperateSeller Trade Marks and/or the DesperateSeller Search Functionality.



7 DATA PROTECTION AND MARKETING

7.1 DesperateSeller and Partner shall comply with the Data Protection Act 1998 in relation to use of ‘personal data’ obtained from Users.



8 REVENUE

8.1 DesperateSeller will provide the Partner with a statement of the number of unique Clicks and unique Calls recorded by DesperateSeller in each calendar month no later than 15th working day of the following calendar month. The statement is exclusively accessible via the online affiliate login area.

8.2 DesperateSeller shall pay the Partner an amount based on the number of unique Clicks recorded by DesperateSeller in the period covered by the relevant invoice less any Invalid Clicks in that period, up to the Monthly Click Limit, multiplied by the Click Revenue.

8.3 A monthly earning threshold of £100 per calendar month must be achieved before an invoice can be made and payment issued by DesperateSeller for that calendar month. For any calendar months where the £75 threshold is not achieved the revenue generated for that month will be added to the revenue generated for the following month until the £75 threshold is reached. Once the £75 threshold is reached then payment covering all associated months will be paid in full.

8.4 Partner shall invoice DesperateSeller for the Revenue on a monthly basis. DesperateSeller shall pay all invoices within 30 days of receipt.

8.5 Revenue generated by the partner is inclusive of VAT which shall be paid by DesperateSeller in addition at the rate and in the manner prescribed by law.



8.6 The Monthly Click Limit the partner can achieve per month is 2000. All clicks generated by the partner in any given month that exceed this limit are not included as Click Revenue.



9 WARRANTIES AND INDEMNITIES

9.1 Each party warrants and represents to the other that it shall comply with all applicable laws and regulations in relation to the performance by it of its obligations under this Agreement.

9.2 Partner warrants that the Partner Site shall not infringe the Intellectual Property Rights of any third party, be defamatory, indecent or otherwise unlawful.

9.3 Partner shall indemnify DesperateSeller on demand against any and all losses, liabilities, claims, demands, damages, costs and expenses (including reasonable legal fees) suffered or incurred by DesperateSeller and arising out of or in connection with any breach by Partner of the terms of Clauses 9.1 and 9.2.



10 LIMITATION OF LIABILITY

10.1 Neither party shall be liable to the other under or in connection with this Agreement for any loss of business, contracts, profits, anticipated savings or data, or for damage to hardware and software, or for any indirect, special or consequential loss.

10.2 Without limitation, DesperateSeller specifically denies any implied or express representation that the DesperateSeller Search Functionality will operate uninterrupted or error-free.

10.3 Except as provided in Clause 9.3 the total liability of either party to the other for loss or damage under or in connection with this Agreement shall be the aggregate amount of Revenue actually paid by DesperateSeller pursuant to this Agreement in the twelve months immediately preceding the incurring of such loss or damage.

10.4 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or for fraud or for any other liability that cannot be excluded or limited by law.



11 TERMINATION

11.1 Either party may terminate this Agreement by serving a termination notice of the required Notice Period on the other party provided that the actual date of termination pursuant to and specified in such notice cannot be earlier than the date of expiry of the Initial Term.

11.2 DesperateSeller may terminate this Agreement immediately on written notice if the partner:

11.2.1 commits any material or persistent breach of any of the provisions of this Agreement and, in the case of a breach which is capable of remedy, fails to remedy the same within 10 Business Days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;

11.3 in the event that any act or omission of Partner in DesperateSeller’s reasonable opinion causes or is likely to cause material damage to any brands of DesperateSeller or brings or is likely to bring DesperateSeller into disrepute.

11.4 Upon expiry or termination, Partner shall immediately cease using the DesperateSeller Search Functionality on the Partner Site.

11.5 Termination or expiry of this Agreement shall not affect the accrued rights or liabilities of the parties under this Agreement nor any provision of this Agreement which is expressed or required to survive or operate in such event.

11.6 DesperateSeller also reserves the sole right at any time to modify, discontinue or terminate this agreement and Services, or modify the Terms of Service without notice. It is the Partner's responsibility to check these Terms of Service periodically for changes



12 CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS

12.1 Both parties agree to keep all information that they obtain about the business, finances, technology and affairs of the other (“Confidential Information”) strictly confidential.

12.2 Except for announcements or other information releases required by a recognised stock exchange or other regulatory body of competent authority, or required by law, neither party shall issue by any medium any public announcement, whether written or otherwise, in relation to the subject matter of this Agreement without the prior written approval of the other party



13 FORCE MAJEURE

13.1 Neither party shall be liable for any delay or non-performance under this Agreement caused by any event beyond its reasonable control (a “Force Majeure Event”) PROVIDED THAT the party affected gives prompt notice in writing to the other party of such Force Majeure Event and uses all reasonable endeavours to continue to perform its obligations under this Agreement. If the Force Majeure Event continues for at least 20 Business Days, the party not subject to the Force Majeure Event may terminate this Agreement by notice in writing to the other.



14 GENERAL

14.1 This Agreement contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, written or oral, between the parties in relation to such matters. No amendment, variation or modification of this Agreement shall be deemed valid unless it is in writing and signed by the parties.

14.2 Nothing in this Agreement shall be construed as creating a partnership, joint venture or agency of any kind between the parties.

14.3 If any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable the legality, validity and enforceability of the remainder of this Agreement shall not be affected.

14.4 This Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the Courts of England.