Terms and Conditions

Published on: 5 Oct 2023

Between Parties:

This Agreement is made between:

The entity identified as “Supplier” on the Order Form(s) (“Supplier”).
The entity identified as the “Customer” on the Order Form(s) (“Customer”).

Introduction

The Supplier is part of and operates within the CitNOW Group. CitNOW Group is a group of companies offering Products and Services to the automotive industry. Where the Customer purchases multiple Products and Services from the Supplier, the Customer acknowledges that such Products and Services may be sold by the Supplier on a resale basis, and as such other entities within the CitNOW Group may be responsible for delivery of such Products and Services on behalf of the Supplier.

When the Customer signs the Order Form(s), it will be bound by these Terms and Conditions and the Licencing Agreement applicable to the Products and Services they have purchased. The Customer shall procure that all Users of the Products comply with these Terms and Conditions and shall ensure Users are aware of their responsibilities under clause 6 (Data Protection) and clause 10 (Warranties).

As part of the supply of Products and Services, the Supplier will act as the Customer’s data processor. The terms of clauses 6 (Data Protection) and 7 (Consumer Data and Employee Data) apply in respect of the parties’ data protection obligations. These provisions are very important and require the Customer to put processes in place to ensure the requirements of these clauses are satisfied. Please read these provisions carefully. In particular the Customer must ensure, and procure that all Users ensure, prior to transferring any Consumer’s personal data to Supplier through the Products that either:

consent is obtained from all Consumers for their Consumer Data to be uploaded into the Product(s) or otherwise transferred to Supplier; or
that the Customer has clearly identified one or more other lawful basis (as set out in the Data Protection Legislation) which allow for the Consumer Data to be uploaded into the Product(s) or otherwise transferred to Supplier.

Definitions

Terms defined in the Licensing Agreement and/or the Order Form(s) shall, unless otherwise defined herein, have the same meaning in these Terms and Conditions.

Additional Features: additional features and/or services which the Customer can request and which Supplier may supply, from time to time, following agreement between the parties in writing, subject to the terms of this Agreement including, but not limited to, on-site training days, data imports, exports or cleanses, bespoke development, chargeable features and webinars.
Agreement: the contract made between Supplier and the Customer comprising the Order Form(s)(s), the Terms and Conditions and the Licensing Agreement(s).
CitNOW Group: the members of the CitNOW Group of companies, being any entity controlling, controlled by or under common control of Supplier and “control” shall have the meaning given to it in section 1124 of the Corporation Tax Act 2010. All entities shall be listed on the CitNOW Group website at all times.
Consumer: any consumer who is a customer of the Customer in respect of whom personal data is uploaded by a User into the Products.
Consumer Data: means all information, including personal data, relating to a Consumer that is uploaded to the Products or transferred to Supplier by the Customer, including by any User.
Content: the video, still images, audio, graphics, text, messages and other information created by You and uploaded via the Product;
Contract Date: the date indicated on the Order Form as the date the Order Form was raised and sent to Customer for signature;
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures; as defined in the Data Protection Legislation.
Customer: the customer named as such in the Order Form(s) (s)which may be an OEM, a National Sales Company, a Dealer Group or a Retailer.
Data: any data, including personal data, which is uploaded to the Products or transferred to Supplier by the Customer, including any Consumer Data and/or Employee Data.
Data Protection Legislation: means: (a) to the extent that the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; or (b) to the extent that the EU GDPR applies, the law of the European Union or any member state of the European Union to which Supplier or the Customer are subject which relates to the protection of personal data.
Dealer Group: a company operating multiple Retailers.
Employee Data: any data, including personal data, which is uploaded to the Products or transferred to Supplier by the Customer, including by any User.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
Fees: all Fees payable by the Customer to Supplier, as detailed in the Order Form(s)(s) including without limitation the Monthly Fee, the Set-Up Fee, and the Services Fees, together (where applicable) with any fees payable for Additional Features as agreed in writing from time to time by the parties.
Monthly Fee: the monthly recurring fee payable by the Customer in respect of its subscription for the Product, and the Monthly Fee shall cover supply of the Product and the provision of Technical Support for such Product for the duration of the Customer’s subscription.
OEM: an original equipment manufacturer.
Order Form(s): the Order Form(s) Supplier and signed by the Customer incorporating these Terms and Conditions and the Licensing Agreement(s) by reference.
Products: The products described within the Order Form(s), which are supplied to the Customer by the Supplier (either directly or as an authorised reseller) on a subscription basis, and which may be available in tiers known as standard, pro and plus (where applicable). The Product(s) purchased by the Customer, including the product tier, shall be as detailed in the Order Form(s)of the subscription, the supply of the Product(s) includes provision of Technical Support;
Product Commencement Date: the date on which the Customer’s subscription for the Product (and the Product Initial Term) shall commence, which for each Product shall be as specified in relevant Licensing Agreement;
Product Initial Term: the initial period of the Customer’s subscription for each Product as detailed in the relevant Licensing Agreement calculated from the applicable Product Commencement Date;
Program Documentation: any documentation made available by Supplier to the Customer in connection with the Product purchased by the Customer;
Renewal Term: shall mean the term for which the Product and Services automatically renew from expiry of the Initial term and shall be reflective of the length of the Initial term;
Retailer: the franchised dealer(s) identified on the Order Form(s).
Services: The services supplied to the Customer by Supplier (either directly or as an authorised reseller), as more fully detailed in the Order Form(s), which may include training, data import, data export, data cleansing, bespoke development and/or webinars, but excluding the Set-Up Service;
Services Fees: the fee payable for the Services, as detailed in the Order Form(s) or as otherwise agreed in writing from time to time.
Set-Up Service: where applicable, the initial setting up and installing of the Product, as specified in the Order Form(s);
Set-Up Fee: the fee payable for the Set-Up Service;
Technical Support: means the provision of technical support services in respect of the Product, subject always to the Customer paying the Monthly Fee;
Third Party Software; any third-party software applications or services which Supplier supply or make available to the Customer as part of the Products (including any Additional Features) and/or Services (including any Set-Up Services), subject always to the Customer agreeing to be bound by any terms applicable to such third-party software;
Users: employees of the Customer at the Customer sites (including Head Office employees, where applicable) detailed on the Order Form(s) who are permitted to use the Products;
UK GDPR: has the meaning given to it in Section 3(1) (as supplemented by Section 205(4)) of the Data Protection Act 2018.

Contract Formation
1. Contract Start Date. Supplier shall provide the Order Form(s)(s) to the Customer. Upon Customer signature of the Order Form(s), a legally binding agreement shall come into effect between the parties. The Order Form(s) to these Terms and Conditions and the Licensing Agreement(s). If there is any conflict between the Order Form, these Terms and Conditions and the Licensing Agreement(s), the following order of priority shall apply: (1) the Order Form; (2) the Terms and Conditions; and (3) the Licensing Agreement(s). No variation of the Terms and Conditions is permitted unless agreed in writing by Supplier. In the event more than one Licensing Agreement is applicable to the Customer’s Product, they can carry the same priority together.
2. Contracting Parties. The Agreement is entered into between the Customer and Supplier. If the Customer is a Dealer Group or OEM, and it is purchasing the Products for use by Retailers in its group, the Retailers use of the Products shall be permitted subject always to such Retailers complying with the terms of this Agreement. Where the Customer is a Dealer Group or OEM, the Customer shall (1) ensure that all Retailers agree to the terms of the Agreement including ensuring any Users who are employed by a Retailer agree to and are bound by the Terms; (2) take steps to ensure the Retailers comply with the terms of the Agreement and (3) be responsible for all actions of the Retailers. If the Customer is a Dealer Group or OEM purchasing the Products for use by its Retailers, the license granted in clause 2.5 shall be extended to such Retailers. The Retailers shall be permitted to use the Products for as long as the Agreement is in effect, and such Retailers access to the Products shall cease upon termination of the Agreement or upon initiation of any other clause in the Agreement which permits suspension of access to the Products.
3. Subscription Commencement. By signing an Order Form(s) the Customer agrees to purchase, and Supplier agrees to facilitate the supply (as applicable) of the Set-Up Service, the Services and a subscription for the Customer to use the Product(s) (including, where applicable, any Additional Features). The Customer agrees to pay the Fees, as further set out in the Order Form(s) or otherwise agreed in writing between the parties from time to time. The Customer’s subscription for the Product(s) and associated Product Initial Term, will begin on the applicable Product Commencement Date (as set out in the relevant Licensing Agreement).
4. Additional Features. The Customer may order Additional Features during the term of the Agreement by notifying the Supplier in writing (email will be accepted). Supplier will confirm to the Customer if it is able to supply the Additional Features together with the associated Fees payable.
5. Product Tiers. Some Products have different tiers for the Products. The Monthly Fee will reflect the tier of the Product to which the Customer subscribes (where applicable). If the Customer requests further features for the Product, including integrations, this may result in the Customer taking a different tier of the Product. Supplier shall notify the Customer if this occurs together with the amount of the adjusted Monthly Fee, which shall be due for payment the month following the change, pursuant to the Adjustment of Fee’s clauses as detailed in each applicable Licensing Agreement.
6. Entire Agreement. These Terms and Conditions, together with the License Agreement(s) and Order Form(s) constitute the entire agreement between the Parties. The Agreement supersedes all other prior agreements and understandings, both written and oral, between the Parties in relation to the Products and Services supplied (including, where applicable, the Set-up Service and/or the Additional Features).
Supplier Obligations
1. In consideration of the Customer paying the Fees, Supplier shall provide (as applicable) the Set-Up Services, the Services and/or the Products (including any Additional Features) to the Customer subject to the terms of the Agreement.
2. The Products and/or Services, (including where applicable, the Set-Up Services and Additional Features) shall be supplied in a professional and diligent manner, using reasonable skill and care, in accordance with good industry practice.
3. The Supplier shall use reasonable endeavours to meet any timings agreed in writing for delivery of the Products and/or Services (including the Set-Up Services, where applicable) but do not guarantee any timings.
4. Supplier reserves the right to alter the scope of the Products if this is necessary to comply with any applicable law or regulatory requirement.
5. Subject always to the Customer paying the Monthly Fees, Supplier hereby grants to the Customer a non-exclusive, limited, revocable license to use the Product(s) for the duration of the relevant Product subscription, subject to the Customer’s compliance with the terms of the Agreement, including the licence conditions specified in clause 10.3 below for the Customer’s internal business operations.
6. Subject to payment of the Set-Up Fees, Supplier shall provide the Set-Up Services in respect of the Products. The Set-Up Services shall be supplied at a date and time mutually agreed by the parties.
7. Subject to payment of the Services Fees, Supplier shall provide the Services in respect of the Products. The Services shall be supplied at a date and time mutually agreed by the parties. For some Products, supply may be pursuant to the terms of a Project Plan (as referenced in the relevant Licensing Agreements).
Customer Obligations
1. The Customer shall:
  1. co-operate with Supplier and provide Supplier with such information as it reasonably requires in order to deliver the Products, Services and (where applicable) the Set-Up Services and Additional Features; and
  2. comply with all applicable laws (including but not limited to the Data Protection Legislation);
  3. pay all applicable Fees in accordance with clause 4;
  4. To the extent that any Third Party Software is provided to the Customer by Supplier as part of the Products and/or the Services, comply with any licence terms applicable to such Third Party Software; an
  5. ensure that any log on information provided to the Customer and its Users in order to access the Products and/or Services is not shared with any third party user who is not authorised to use the Products / Services as part of the Customer’s subscription and promptly notify the Supplier if it believes such log in details have been compromised or shared in breach of this clause.
2. If the Customer requires Supplier to connect to or interact with software provided by a third party (excluding Third Party Software), to avoid any doubt, the Customer is entirely responsible for ensuring Supplier is permitted to connect to or interact with such software, and Supplier accepts no liability or responsibility for any issues, failures or interruptions caused by or arising from the use of, connection to or interaction with such software.
3. If the Customer does not carry out any of its contractual obligations as and when required, and as a result Supplier is unable to perform its contractual duties (Customer Default) then Supplier may (without limiting any other right or remedy available to it) suspend supply of the Product(s), Services, (including, where applicable any Additional Features and/or Set Up Services) until the Customer Default is resolved. In this situation, Supplier shall not be liable to the Customer for any losses or costs the Customer incurs because Supplier is unable to perform its contractual duties, or for any suspension of supply. Further, if as a direct result of the Customer Default, Supplier incurs additional or unexpected costs or losses, Supplier reserves the right to charge the Customer for those costs and/or losses, subject to Supplier providing appropriate documentary evidence of the same.
Payment of Fees
1. Payment Terms. Fees, together with any applicable taxes, shall be paid in accordance with the payment terms detailed in the Order Form(s).
2. Initial Invoice. The first invoice will be sent to the Customer on or around the relevant Product Commencement Date and will include any Services Fees and the Set-Up Fees (where applicable) as well as the Monthly Fee. The Monthly Fee for the first invoice may be adjusted on a pro-rata basis depending on the applicable Product Commencement Date. Invoices for the Monthly Fee will be sent on the first of each month thereafter.
3. Failure to make Payment. The Supplier may suspend or terminate Customer access to the Products and/or Services without notice if Fees are not paid on the due date for payment.
4. Adjustment of Fees. Monthly service fee and monthly rental payment (detailed in clause 4.1, together "Fees") shall not change within the first 12 months unless Customer orders any Additional Services. After the first 12 months, Supplier may adjust the Fees by 5% per annum. In the event Supplier development costs, or those costs required by third parties to the software, cause an increase higher than 5%, Supplier may reflect these higher costs within the Fees, but must provide Customer with evidence of such increased costs.
Term and Termination
1. Initial Term. Unless the Agreement is terminated pursuant to clauses 5.3, 5.4 or 5.5, the Agreement shall continue from the date the first Product Commencement Date takes effect until expiry or termination of all Product subscriptions purchased by the Customer under this Agreement, For the avoidance of doubt, if multiple Product subscriptions are taken, Commencement Dates may differ. All Product subscriptions shall continue in full force until expiry of the last Product subscription Term.
2. Automatic Renewal. Unless the Agreement is terminated pursuant to clauses 5.3, 5.4 or 5.5, upon expiry of the Initial Term in line with Clause 5.1, all Products within this Agreement shall automatically renew for a further term reflective of the Initial Term (“Renewal Term”) and where the Customer has purchased multiple Product subscriptions, the renewal period shall be reflective of the longest Product Initial term the Customer agreed.
3. Termination. Unless otherwise stipulated within the applicable Product Licensing Agreement, Customer acknowledges that Agreement shall be in force for the Initial Minimum Term, and any subsequent Renewal Terms, unless terminated pursuant to clause 5.4 (Termination for Cause). Customer may Terminate before any Renewal Term by providing no less than ninety (90) days notice before expiry of the Initial Minimum Term or any Renewal Terms by providing their request in writing to customer@citnowgroup.com.
4. Termination for Cause. Either party may terminate the Agreement immediately on notice in writing if the other Party:
  1. commits a material breach of the Agreement, and, if such breach is capable of remedy, fails to remedy it within thirty (30) days of being asked in writing to do so; or
  2. becomes insolvent, or bankrupt, or enters into any voluntary arrangement with its creditors, or ceases or threatens to cease to carry on its business.
5. Acquisitions and divestments. The Supplier recognises that acquisitions and/or divestments may occur from time to time within Dealer Groups or National Sales Companies. Customer shall, in the event of divestment, give the Supplier no less than ninety (90) days notice of the divestment in writing to customer@citnowgroup.com, and shall be liable for the remainder of the Fees of the Initial Term or any Renewal Term of affected site unless;
  1. Customer transfers Subscription to another site within their control; or
  2. Business acquiring site agrees to take over the subscription in question.
6. Dealer Group and OEM Subscriptions Term. If the Customer is a Dealer Group or OEM ordering subscriptions for the Products on behalf of the Retailers in its group, the Initial Term will apply to such Product subscriptions, with all subsequent subscriptions entered into by the Customer on behalf of the Retailers in its group beginning a new Initial Term for all Products within the Agreement between Supplier and Customer. For the avoidance of doubt, addition of a new Product to Customer subscription shall instate a new Initial Term, with all Products co-terminating on the same date.
7. Consequence of Termination. Upon termination of the Agreement:
  1. the Customer shall immediately cease all use of the Products and Program Documentation (and procure that all Retailers (where applicable) and Users do the same);
  2. Supplier shall cease processing any personal data comprised in the Data.
8. Accrued Rights. Termination of the Agreement pursuant to this clause 5 shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party, or the continuance in force of any provision hereof which is expressly or by implication intended to continue in force on or after such termination.
9. Resumption. If the Customer requests resumption of its subscription to use the Product(s) within 60 days of the Agreement being terminated, the Supplier will be able to resume the Customer’s original subscription for the Product(s). If the Customer’s request is more than 60 days after cancellation or termination, Supplier shall treat this as a new request for a subscription to use the Products. Supplier will be unable to offer any data exports after the 60 day period.
10. Training Cancellation. As described within Definitions (“Additional Features”) Supplier shall make available, upon Customers request, on-site training days for the Product(s) and shall agree dates for such training with Customer. Supplier shall provide suitably skilled and trained staff to provide such training. Customer agrees and acknowledges that in the event of cancellation within 72 hours of the agreed training date(s), Customer shall still be charged and Fees for such training shall still be payable. Supplier reserves the right to reschedule Training date.
Data Protection
1. Supplier shall process Data on behalf of the Customer. The scope and duration, categories and purpose of the personal data processed by Supplier pursuant to this Agreement are set out in Annex A within the License Agreement(s).
2. The Customer shall own all right, title and interest in and to all of the Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Data. Supplier acknowledges and agrees that the Customer shall be the data controller of any personal data comprised in the Data. Where the Customer is an OEM or Dealer Group the parties agree that Data may be shared with Supplier either by the OEM or the Dealer Group, or by Retailers within the Customer’s group. Where this is the case, Supplier understands and acknowledges that the Retailer and an OEM / Dealer Group shall be joint data controllers of the personal data disclosed to Supplier, subject to the terms of a separate written agreement between the Retailer and the OEM/Dealer Group, as applicable.
3. The Customer’s instructions in relation to the processing of personal data comprised in the Data shall be as set out in Annex A. The Customer shall be entitled, in writing or in a machine-readable format (in text form*), to update, modify, amend or replace such individual instructions by notifying Supplier’s designated contact for data protection matters. The Customer shall, without undue delay, confirm in writing or in text form any instruction issued orally.
4. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5. Subject always to clause 6.7.2, personal data comprised in the Data may be transferred or stored outside the UK and EEA or the country where the Customer is located in order to provide the Products and/or Services (including, where applicable, any Additional Features) under the Agreement.
6. Without prejudice to the generality of clause 6.4, the Customer will ensure that it has all necessary appropriate lawful basis and notices in place to enable lawful transfer of the personal data to Supplier for the duration and purposes of the Agreement.
7. Without prejudice to the generality of clause 6.4, Supplier shall, in relation to any personal data processed by it when performing its obligations under the Agreement:
  1. Process that personal data only on the Customer’s documented written instructions unless Supplier is required by the laws of any member of the European Union and/or domestic UK Law to process such personal data (Applicable Laws). If Applicable Laws require Supplier to process such personal data, it shall tell the Customer before such processing unless those Applicable Laws prohibit it from doing so;
  2. Not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
    1. Supplier have provided appropriate safeguards in relation to the transfer;
    2. the data subject has enforceable rights and effective legal remedies;
    3. Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
    4. Supplier complies with the Customer’s reasonable advance instructions when processing the Customer’s personal data;
  3. assist the Customer, at the Customer’s cost, in responding to any request from a data subject to enable the Customer to comply with its Data Protection Legislation obligations with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  4. promptly notify the Customer on becoming aware of a personal data breach affecting the Customer’s personal data;
  5. at the Customer’s written request and on termination of the Agreement, delete or return the Customer’s personal data in accordance with clause 6.11 unless required by Applicable Law to store the personal data; and
  6. maintain records and information to demonstrate its compliance with this clause 6 and clause 7. Supplier shall permit the Customer, and its authorised representatives to audit and inspect its compliance with Data Protection Legislation provided always such audit and/or inspection is carried out on reasonable notice at a mutually convenient time. Any information disclosed as part of the audit / inspection shall be treated as confidential information in accordance with clause 9. Audits and inspections shall not be carried out more than annually unless the Customer, acting reasonably, believes Supplier has breached the Data Protection Legislation; and
  7. promptly tell the Customer if, in Supplier’s opinion, the Customer’s instructions infringe Data Protection Legislation. In such instances, Supplier shall be permitted to suspend performance on such instruction until the Customer confirmed or modifies such instruction so that it complies with Data Protection Legislation.
8. Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage, having regard to the state of technological development and the cost of implementing any such measures.
9. The Customer consents to Supplier appointing subprocessors of personal data under the Agreement. A list of the subprocessors used by Supplier is available on each company website . Supplier confirms that it has or will enter into (either directly or through a member of the CitNOW Group) a written agreement with subprocessors incorporating terms which are substantially similar to those set out in this clause 6. Supplier shall remain fully liable for all acts or omissions of any sub processor appointed by or on behalf of Supplier pursuant to this clause 6. Where Supplier uses any subprocessors which are based outside of the UK and EEA, in a territory where an adequacy decision is not in place, it shall comply with the requirements of clause 6.7.2 before any personal data is transferred to such subprocessor. A list of any subprocessors to which this clause applies is available on Suppliers Website at all times. Supplier may appoint new subprocessors from time to time, and the Customer is advised to regularly check the above link for a list of the current subprocessors used by Supplier.
10. Third Party Claim. The Customer shall indemnify and defend Supplier at its own expense against all costs, claims damages or expenses incurred by Supplier and/or other members of the CitNOW Group or for which Supplier and/or other members of the CitNOW Group may become liable due to any failure by the Customer, the Users, the Retailers (where applicable), and/or the Customer’s employees, subcontractors or agents failure to comply with its obligations under clauses 6 and/or 7, and/or the Data Protection Legislation, as applicable.
11. Retention upon Termination. Should this Agreement be terminated for any reason, Supplier will hold the Data for a period of 60 days (or such other period as may be specified in the applicable Licensing Agreement) after termination. Supplier holds the Data for this period for the following reasons:
  1. To allow the Customer to change its mind and resume its subscription for the Product with all details, preferences and configurations still in place, if applicable; and
  2. To allow the Customer to request an export of its Data.
Consumer Data and Employee Data
1. The parties acknowledge and agree that as Consumer Data is to be processed by Supplier on behalf of the Customer it is the Customer’s responsibility to identify and record the lawful basis for capturing and sharing the Consumer Data with Supplier. Supplier has no control of the data entered into the Product(s) by the Customers and its Users. Accordingly, the Customer shall ensure, and shall procure that all Users ensure that either:
  1. consent is obtained from all Consumers for their Consumer Data to be uploaded into the Product(s) or otherwise transferred to Supplier; or
  2. where consent is not obtained, that the Customer has clearly identified one or more other lawful basis (as set out in the Data Protection Legislation) which allow for the Consumer Data to be uploaded into the Product(s) or otherwise transferred to Supplier.
2. The Customer shall keep a written record of such lawful basis and provide evidence of such lawful basis for processing to Supplier on request.
3. It is the Customer’s responsibility, irrespective of whether the Customer is an OEM, a Dealer Group or a Retailer, to ensure compliance with clauses 7.1 and 7.2. Supplier accepts no responsibility or liability to the Customer and/or any Consumer for the Customer failing to obtain the necessary authority and permission to share Consumer Data with Supplier. Where a Dealer Group or an OEM have entered into this Agreement in order to purchase subscriptions to use the Products on behalf of its Retailers, it is the Dealer Group / OEM’s responsibility to procure each Retailer in its group has obtained the necessary authorisation and permission before any Consumer Data is uploaded to the Product or otherwise transferred to Supplier.
4. The Customer shall indemnify Supplier for any losses, costs, claims, damages or expenses incurred by Supplier and/or other members of the CitNOW Group caused by disclosure of Consumer Data by the Customer without the necessary authorisation and permission being obtained in advance of disclosure.
5. Except as provided in Data Protection Legislation, Supplier shall not use or allow use of the Consumer Data other than to fulfil its obligations under the Agreement and/or in accordance with the Customer’s written instructions.
6. Supplier confirms that all employees involved in the processing of the Consumer Data shall be prohibited from processing the Consumer Data outside the scope of the instructions detailed in clause 7.5 above. Supplier confirms that any person entitled to process Consumer Data is bound by a contractual commitment to confidentiality or is subject to an appropriate statutory obligation to confidentiality.
7. If either party becomes aware of any unauthorised or unlawful processing of the Consumer Data or if the Consumer Data is lost or destroyed, or if either party learns or suspects of a personal data breach affecting the Consumer Data has occurred, that party shall promptly notify the other party and fully cooperate with the other party to take the necessary remedial action as soon as practicable.
8. Where Employee Data is uploaded by the Customer (as controller) into the Product it shall be accessible by Supplier and, in this circumstance only, Supplier shall act as a joint controller of the Employee Data. Both the Customer and Supplier shall process the Employee Data to the extent necessary to enable fulfilment of their contractual obligations under the Agreement.
Ownership and Intellectual Property Rights
1. The Products and Program Documentation contain confidential and proprietary information of Supplier and all copyright, trademarks and other intellectual property rights in them are the property of Supplier or of its third party licensors, and do not belong to the Customer. Nothing in the Agreement operates to transfer the aforementioned intellectual property rights to the Customer.
2. The Customer shall not incorporate and/or use any of the Product(s) and/or Program Documentation except as set out in the Agreement or without the prior written permission of Supplier.
3. If the Supplier makes any developments or improvements to any of the Products following feedback or suggestions from the Customer, CitNOW or the licensor of relevant Product will own all intellectual property rights in such Product development/ improvement without any obligation to acknowledge the Customer’s feedback / suggestions, and the Customer shall have no ownership, proprietary, or other rights in such Product development or improvement.
4. Ownership:
  1. Supplier is the owner or licensee, unless otherwise stated, of all Intellectual Property Rights that subsist in the Products, subscriptions and any training materials provided in relation to the Products whether created, developed or produced before, on or after the date of the Order Form. Any rights not expressly granted herein are reserved to the Supplier.
  2. Customer shall not incorporate and/or use any of the Products except as set out in these Terms and Conditions or any applicable Licensing Agreement without the prior written permission of Supplier.
  3. To the extent that any Intellectual Property Rights in the Products, subscriptions or any training materials vest in Customer, Customer hereby irrevocably, unconditionally and absolutely assign to Supplier, with full title guarantee, and without restriction, all right, title and interest in any such Intellectual Property Rights.
5. Ownership of Content. In the event the Product is one of which can create Content, Customer is solely responsible for the Content created and distributed through the Products (where applicable), and for seeking consent or other lawful basis from any individuals who may appear or whose property may appear within that Content. Customer agrees to defend and hold Supplier harmless against any claim by any third party alleging that Content uploaded by Customer breaks regulations or is illegal, defamatory or infringes any third party’s rights.
6. Recipients. In accordance with clause 8.5 (Ownership of Content), in the event the Product is that of which can create Content, Customer agrees that Supplier has no liability to the recipients to which Customer sends any Content to and has no liability in respect of possible further distribution by the recipient of any Content. Customer agrees to indemnify Supplier for any losses incurred pursuant to any claims made by any recipients to whom Customer sends Content, or for any claims against CitNOW from third parties to whom Content is further distributed to.
7. Claims. In the event of a Third Party Claim against Supplier is received by Customer for any ownership or Intellectual property infringement relating to the Product(s), Customer agrees to notify Supplier without undue delay, and shall not act on the Suppliers behalf. For the avoidance of doubt, Customer shall not assume, claim or otherwise state the Suppliers acceptance of claim.
8. Usage of Marks. The Customer agrees that the Supplier has the right to use the Customers name and company logo for the Suppliers portfolio for self-promotion of the Suppliers business, in particular on the Internet, including the Suppliers social media presences. At any time, if the Customer wishes to exclude certain types of use from this release or to limit the period of such a release, the Customer may inform the Supplier in writing.
Confidentiality
1. The Customer shall:
  1. keep confidential any information relating to the Products, (including without limitation their object and source code), Program Documentation, Services and Additional Features and limit access to the same to those of its employees who work at or in respect of the Customer Sites and who have a need to know and use such information; and
  2. without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of Supplier in the Products and Program Documentation.
2. Confidential Information. Each party may acquire confidential information that is of value to the other during the term of this Agreement, in respect of the other Party’s business, technology and/or customers. Each party agrees to keep the other Party’s confidential information secret, to the extent permitted by law.
3. OEMs. The Parties agree that information relating to the Customer’s use of the Products shall not be considered confidential information for the purposes of this clause. In particular, Supplier shall be entitled to disclose this information to any OEM with whom the Customer cooperates.
4. CitNOW Group. The Parties agree that the Customer’s contact information and the Customer’s use of the Products may be shared with other entities and companies within the CitNOW Group and Supplier shall procure that such entities handle any such information in accordance with the confidentiality commitments given in this clause.
Warranties
1. Supplier warrants that:
  1. it has the right to enter into this Agreement and to grant to the Customer a license to use the Products.
  2. it shall comply with all applicable laws and regulations in respect of its activities under this Agreement.
2. The Customer warrants and agrees that:
  1. it has the authority to enter into this Agreement.
  2. it will ensure all Users which are using the Products are aware of their obligations contained in the Agreement.
  3. it has the consent of Users to provide Supplier with the User’s personal data including, but not limited to, their names, job roles, contact details and location of work in order that an individual can be set up as a User of the Product and to provide support throughout the term of the Agreement.
  4. it shall comply with all applicable laws and regulations in relation to its business and its use of the Products;
  5. where the Customer is an entity regulated by the Financial Conduct Authority, it shall ensure that when using any Product, its processes are compliant with the requirements of the Financial Conduct Authority (or any successor regulator);
  6. it shall not subcontract, share, rent or allow access to, or use of, any part of the Product(s) and/or the Program Documentation with any third party (including, but not limited to any retailer, or employee of a retailer), for any purpose.
3. The Customer warrants that it shall not, and it shall procure that its Users do not:
  1. adapt, modify or translate (compile or decompile) Product(s) and/or the Program Documentation save to the extent permitted by law;
  2. reproduce or distribute copies of the Product(s) and/or the Program Documentation;
  3. use the Product(s) or the Program Documentation otherwise than for the Customer’s own internal business purposes;
  4. remove, cover, replace or alter any copyright or other proprietary notice on any of the Product(s) and/or Program Documentation; and/or
  5. sell, rent, offer for sale or rent, dispose of, pledge, or part with possession of the Product(s) and/or the Program Documentation in any circumstances or distribute, or allow any other person to use or have the benefit of the Product(s), Program Documentation or any part thereof.
4. Supplier does not give any warranty or guarantee in relation to any Third Party Software (including any third party software accessed through the use of, the Product(s)).
5. The Customer warrants and accepts that it is solely responsible for selection of the Product(s) and satisfying itself that the Product(s) meets its business needs prior to entering into the Agreement.
6. The Customer shall fully indemnify Supplier against any third party claims and/or associated losses, costs, expenses and other sums suffered or incurred by Supplier and/or other members of the CitNOW Group arising due to the Customer’s breach of the Agreement or its negligent acts or omissions, or those of its Users.
Limitation of liability
1. Parties Liability. Nothing in the Agreement excludes or limits either party’s liability for:
  1. death or injury caused by negligence;
  2. fraud or fraudulent misrepresentation; or
  3. any other liability which cannot be limited by law.
2. Exclusion of Liability. Subject to clause 11.1, Supplier shall not be liable for any indirect or consequential losses including (but not limited to any indirect or consequential losses relating to:
  1. loss of use;
  2. lost profits;
  3. loss of anticipated savings;
  4. loss of or corruption of data or content; (v) loss or damage arising from false or inaccurate or out of date information obtained by the Customer from third parties (for example HPI searches) and accessed through the use of the Product(s),
  5. loss of use or failure of the Product relating to products or services supplied by a third party with whom the Customer has instructed Supplier to cooperate on its behalf, and/or
  6. loss of use or failure relating to third party software which the Customer has required is connected to or interacts with the Products.
3. Maximum Liability. Subject to clauses 11.1 and 11.2 Supplier’s maximum aggregate liability to the Customer for any claim arising in connection with the Agreement shall not exceed the limits set out below:
  1. In respect of liability for Supplier’s breach of clause 6 (Data Protection), a sum equivalent to 500% of the aggregate Fees paid by the Customer during the twelve months immediately preceding the event giving rise to the claim. Notwithstanding the foregoing, if the Customer has contributed or caused the loss as a result of it failing to comply with Data Protection Legislation, Supplier’s liability shall be adjusted accordingly and its liability shall be capped at the amount specified in clause 11.3.2.
  2. In respect of all other claims arising under the Agreement, Supplier’s liability shall be limited to 125% of the aggregate of the Fees paid and payable by the Customer during the twelve months immediately preceding the event giving rise to the claim.
4. Rights of Third Parties. Supplier’s employees, sub-contractors, licensors and suppliers shall have the benefit of the limits and exclusions of liability set out in this clause 11.
5. The Customer acknowledges that unless specifically stated otherwise in a Licensing Agreement, the Products and Services are supplied on an “as is” basis without any guarantees as to availability and Supplier does not guarantee or warrant that Products and Services will at all times be uninterrupted or error free. Furthermore, Supplier accepts no liability for loss of availability resulting from improper use, scheduled maintenance, external causes outside Suppliers control, including services or modifications not performed by Supplier, or from use of Products or Services other than permitted within these Terms and Conditions or corresponding Licensing Agreements.
Technical Support and Updates
1. Technical Support. Subject to clause 13.2 (Limitation of Availability), during the term of the Agreement and depending on the Product subscription purchased by the Customer, Supplier may make available to the Customer technical support for the Product(s). Where applicable, technical support service levels shall be detailed on the relevant Product page of the CitNOW website. Websites applicable to the Product purchased can be found through the CitNOW Group website.
2. Updates. Supplier releases software in an iterative manner; as such the Products will update and change over time as new features are released. Supplier may, at its reasonable discretion modify or upgrade the Services and Products. Supplier shall use commercially reasonable efforts to provide reasonable advance notice of such downtime. This may have an ongoing impact on these Terms and Conditions as a result and Supplier reserves the right to amend these Terms and Conditions accordingly, pursuant to clause 14.4.
3. Contact. The Customer and its Users may contact Supplier for support using the methods detailed on the Product page of the CitNOW website (www.citnowgroup.com). The Customer agrees that Supplier may use the contact details a User provides in order to provide ongoing support.
Availability
1. Availability. Supplier shall endeavour to make the Products available within core business hours of the Customer and shall advise customer (where possible) before any maintenance work is carried out which could affect the availability of the Product(s).
2. Limitation of Availability. Non-availability of the Products arising from improper use of the Products, scheduled maintenance and external causes outside Supplier’s control, including service or modifications not performed by Supplier, are excluded from the availability target.
3. Operation of the Products. Supplier does not guarantee that the use or operation of the Products will at all times be uninterrupted or error free. Unless specifically stated otherwise in a Licensing Agreement, the Products are supplied on an “as is” basis without any guarantees as to availability or performance.
4. Technical Support. Supplier will use its reasonable endeavours to remedy any interruptions or errors in the Products which are brought to its attention as part of the Technical Support.
5. Connections. Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. The Customer is solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Supplier's data centres.
General
1. Force Majeure. If a Party is prevented from performing any of its obligations under the Agreement by the occurrence of an event beyond its reasonable control (a Force Majeure Event), that Party may, as soon as it becomes aware of the Force Majeure Event, claim relief from liability in respect of any delay in performance or any non-performance of any such obligation to the extent that the delay or non-performance is due to a Force Majeure Event. A party may terminate the Agreement on notice to the other if it is affected by a Force Majeure Event for 30 days or more.
2. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy. No waiver of either Party in the exercise of any right under these Terms and Conditions shall prevent such Party from exercising that right in the future.
3. Survival of Clauses. If any provision of these Terms and Conditions is found to be unenforceable, the remaining provisions shall remain valid.
4. Changes. Supplier reserves the right to make changes to these Terms and Conditions and/or any Licensing Agreement. The changes shall take effect following the provision of reasonable notice (being no less than 30 days’ prior notice). If any changes to the documents have the effect of materially reducing the functionality of the Products, or imposing additional obligation on the Customer with which the Customer is unable to comply, the Customer shall be entitled to terminate the Agreement by giving notice to Supplier in writing without penalty, and any Monthly Fees already paid by the Customer in respect of the period after termination shall be refunded. The latest version of these Terms and Conditions and the Licensing Agreement will be available on the CitNOW Group website at all times.
5. Governing Law. The Agreement is governed by the law applicable to the entity as named on the Order Form(s) and these Terms and Conditions and shall be subject to the exclusive jurisdiction to the courts of which said entity is registered.

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