EvalExpert Terms of Use

Effective Date: 1 September 2016

1. BACKGROUND

1.1 EvalExpert (distributed in Australia & New Zealand by Little Red Wagon Automotive, ABN: 89 603 165 465, in other countries distributed by AlgoDriven Limited, Hong Kong Company Registration: 2399 023) is a software-as-a-service system that provides stock management and vehicle Evaluation functions (“EvalExpert Services”) to motor vehicle professionals and dealerships. Users interact with EvalExpert Services using facilities that EvalExpert or its licensors make available from time to time, which may include the www.eval.expert website and mobile device apps (each a "EvalExpert Portal").

1.2 These EvalExpert Terms of Use (“Terms of Use”) state the terms that govern use of the EvalExpert Services by any person.

1.3 The terms “you” and “your” refer to the person using the EvalExpert Services for any reason. By using the EvalExpert Services, you confirm your acceptance of these Terms of Use, and agree to be legally bound by them. If you do not accept the Terms of Use, you must not use the EvalExpert Services. The Customer must ensure that each user of the EvalExpert Services is aware of, and complies with, these Terms of Use.

2. DEFINITIONS

2.1 In these Terms of Use:

"3P Data Source" means any source of data accessible or utilised by the EvalExpert Services which is made available by a third party, including government and commercial motor vehicle information database and processing services.

"Additional Services Fee" means any amount 1 in addition to Evaluation Fee that Customer may be required to pay to EvalExpert for services EvalExpert supplies to Customer or any Users, which may include initial setup or User support services.

"Agreement" means either the contract formed pursuant to these Terms of Use between the Customer and EvalExpert for the use of EvalExpert Services by Users at a Dealership.

"Analytics Data" means any data processed, compiled, derived or determined by EvalExpert or its licensors about or associated with the EvalExpert Services, and includes aggregated statistics and data derived from the processing of data stored or processed by the EvalExpert Services, provided however that under no circumstances will Analytics Data disclose any Dealer Profile Data, or be capable of being reverse engineered or manipulated to reveal Dealer Profile Data.

"Confidential Information" in relation to a party, means all knowledge, information or know-how pertaining to or concerning that party or any of its related entities, including that party’s or related entities’ business, systems, processes, data, customers, properties, assets and affairs, which is disclosed to the other party.

"Customer Representative" means either the Customer, or a person who is authorised by the Customer to enter into this Agreement on behalf of the Customer, and who may give irrevocable directions to EvalExpert on behalf of the Customer.

"Dealership" means a facility owned or operated by a Customer or another person or entity from which the business of the buying and selling of automobiles and associated goods and services is conducted by or on behalf of the Customer.

"Dealer Profile Data" means any data stored or processed within the EvalExpert Services about the business of a Customer, from which the identity of a Customer or any person or business associated with the Customer (including any customer of a Dealership) can be determined.

"Dealership IP" means all Intellectual Property Rights and moral rights owned or licensed by the Customer in connection with the business of the Dealership, including all Intellectual Property Rights in User Content, logos, branding, trade marks and other materials developed by or on behalf of the Customer, or that the Customer is licensed by third parties to use.

"EvalExpert IP" means all Intellectual Property Rights and moral rights owned or licensed by EvalExpert, including all Intellectual Property Rights in or arising out of EvalExpert Services; all related documentation and marketing material; and all modifications, variations, improvements and/or enhancements in or relating to EvalExpert Services, whether developed by EvalExpert independently or in conjunction with the Customer or any User.

"EvalExpert Portal" is defined in clause 1.1.

"EvalExpert Services" is defined in clause 1.1.

"Evaluation" means an automated process, performed by the EvalExpert Services, to identify a motor vehicle and attempt to retrieve from third party sources information about that motor vehicle, which information may include history and specifications of that motor vehicle.

"Evaluation Fee" means the fee (as amended by EvalExpert from time to time), payable by the Customer to EvalExpert for a quantityof Evaluations in a calendar month (whether or not such quantity of Evaluations are performed in that calendar month).

"Intellectual Property Rights" means all intellectual property rights, including patents, copyright, rights in circuit layouts, registered designs, trade marks and the right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights.

"Privacy Policy" means the EvalExpert Privacy Policy published at www.eval.expert, as amended from time to time.

"Terms of Use" is defined in clause 1.2.

"User" means an employee, contractor or other representative of a Dealership that is authorised by the Customer to use the EvalExpert Services.

"User Content" means data, material or information deposited, entered or added to EvalExpert Services by a User, or by EvalExpert on behalf of a User or the Customer, in a manner authorised by this Agreement.

3. SUPPLY OF EVALEXPERT SERVICES

3.1 On registration for use of the EvalExpert Services, EvalExpert agrees to supply, and the Customer agrees to acquire, the supply of the EvalExpert Services in accordance with this Agreement.

3.2 The Customer acknowledges that every right or obligation of the Customer under this Agreement may be exercised or satisfied by the Customer Representative.

3.3 Customer acknowledges that it must ensure that each User is aware of, and complies with, these Terms of Use, and Customer will be liable for any breach of these Terms of Use by a User as though such breach was made by Customer.

4. EVALUATION FEES AND PERFORMANCE OF EVALUATIONS

4.1 You acknowledge that the EvalExpert Services are provided on a monthly subscription basis, with all Evaluation Fees for each month being due and payable to EvalExpert within 14 days of tax invoice from EvalExpert.

4.2 Following the end of every calendar month ("Access Month"), the Customer Representative will receive, and the Customer must pay, a tax invoice for the:

4.2.1 Evaluation Fee payable for that Access Month; and

4.2.2 any Additional Services Fee due.

4.3 The Customer acknowledges that EvalExpert has no obligation to permit access to the EvalExpert Services by any User if the Customer fails to pay any Evaluation Fee by the due date and EvalExpert will have no liability to any person (including the Customer or any User) if EvalExpert suspends or cancels access to the EvalExpert Services by any User following any failure of the Customer to pay any amount due under this Agreement by the date due.

4.4 The Customer acknowledges that:

4.4.1 for each calendar month, they must buy a minimum quantity of Evaluations ("Monthly Minimum Evaluations"), for which an Evaluation Fee is payable irrespective of whether fewer than that quantity of Evaluations are made by Users;

4.4.2 if the number of Evaluations performed by all Users in a month equals the Monthly Minimum Evaluations:

4.4.2.1 the Evaluation Fee payable by Customer will increase; and

4.4.2.2 at start of the next calendar month, the quantity of Evaluations for the Dealership will be reset for that next month.

4.4.3 for the purposes of this clause 4, an Evaluation is deemed to have been performed immediately on a User initiating an Evaluation through an EvalExpert Portal, irrespective of whether any information sought or expected by the User is actually supplied by the EvalExpert Services; and

4.4.4 if at the end of a calendar month any quantity of Evaluations (including the Monthly Minimum Evaluations) for which Customer is required to pay the Evaluation Fee have not been performed, that unused quantity is not transferrable or refundable under any circumstances. For the avoidance of doubt, if the quantity of Evaluations performed by all Users in a month is less than the quantity for which Evaluation Fee is due, then at the start of the following month the Monthly Minimum Evaluations for that following month will be reset, and any unperformed Evaluations from the previous month will be forfeited.

5. LICENCE TO USE EVALEXPERT SERVICES AND RESTRAINT

5.1 Subject to payment of all applicable Evaluation Fees, a Customer may authorise any person who is an employee, contractor or representative of a Dealership to be registered as a User, and to use the EvalExpert Services in accordance with this Agreement.

5.2 For each User authorised to use EvalExpert Services by the Customer in accordance with clause 5.1, EvalExpert grants to that User a licence to access and use the EvalExpert Services, including each EvalExpert Portal (and to the extent necessary, to install a copy of any app or other software associated with a EvalExpert Portal on a relevant computing device), in the normal course of business of the Dealership and subject to this Agreement.

5.3 You acknowledge that your access and use of the EvalExpert Services and that of each User:

5.3.1 is authorised by, and subject to any restrictions on access specified by, the Customer;

5.3.2 may be subject at any time without notice to usage restrictions defined by the Customer, such that your access to some or all facilities or data within the EvalExpert Services may be restricted or prohibited;

5.3.3 may be limited, suspended or cancelled at any time:

(a) by the Customer Representative or other authorised representative of the Customer;

(b) by us if we are directed to do so by the Customer Representative or other authorised representative of the Customer; or

5.3.4 may not be sub-licensed or assigned to any other person without the consent in writing of EvalExpert.

5.4 You must not:

5.4.1 make the EvalExpert Services available to any third party, unless explicitly authorised by this Agreement or otherwise by EvalExpert in writing;

5.4.2 resell or resupply the EvalExpert Services to any person or entity;

5.4.3 modify, adapt, reproduce or otherwise use the EvalExpert Services for any purpose not explicitly authorised by this Agreement;

5.4.4 disassemble, decompile, reverse engineer or otherwise seek to reveal the operating logic of any part of the EvalExpert Services;

5.4.5 use the EvalExpert Services in any manner that will, or is likely to, impede or disrupt the supply of services to any other customer of EvalExpert; or

5.4.6 use or permit (whether directly or indirectly) the use of the EvalExpert Services for any illegal purpose.

5.5 In consideration of the supply of the EvalExpert Services by EvalExpert to the Customer, the Customer agrees and covenants that during the term of this Agreement and for a period of 12 months following termination or expiry of this Agreement for any reason, the Customer will not directly or indirectly engage in any business or activity that competes with the EvalExpert Services.

5.6 For the purposes of clause 5.5, "directly or indirectly engage in any business or activity that competes with the EvalExpert Services" includes, but is not limited to:

5.6.1 reproducing the appearance or function (whether in whole or in part) of the EvalExpert Services or any EvalExpert Portal;

5.6.2 promoting or encouraging the use of any facility or services that performs a materially similar function to any part of the EvalExpert Services;

5.6.3 engaging any person, including any employee or contractor of Customer or any consultant or other third party, to reproduce the appearance or function (whether in whole or in part) of any aspect of the EvalExpert Services or any EvalExpert Portal;

5.6.4 taking an interest in any entity or organisation (directly or indirectly) that does anything referred to in sub-clauses 5.6.1, 5.6.2 or 5.6.3; or

5.6.5 requiring, assisting, authorising or encouraging (directly or indirectly) the doing by any person or entity of anything referred to in sub-clauses 5.6.1, 5.6.2 or 5.6.3.

6. SUPPLY OF EVALEXPERT SERVICES AND INTERRUPTIONS

6.1 Subject to this clause and this Agreement, EvalExpert will use reasonable commercial efforts to make the EvalExpert Services available to Users at all times.

6.2 You acknowledge that:

6.2.1 EvalExpert has no responsibility for the availability, quality or relevance of any data made available through the EvalExpert Services which is derived from 3p Data Sources;

6.2.2 the EvalExpert Services are supplied over the internet, and may be subject to delay, disruption or loss in transmission which is not within the control of EvalExpert;

6.2.3 EvalExpert may monitor your use of the EvalExpert Services for the purposes of maintaining the integrity of EvalExpert Services for all customers and otherwise ensuring compliance with this Agreement;

6.2.4 EvalExpert does not warrant or represent that the EvalExpert Services will be uninterrupted or error free; and

6.2.5 in the event that the EvalExpert Services are disrupted or degraded for any reason beyond the reasonable control of EvalExpert (including, without limitation, due to any failure of a 3P Data Source), EvalExpert will make reasonable efforts to notify you of the problem and of any steps you may take to work around the problem, but EvalExpert otherwise has no responsibility or liability for, or obligation to rectify, such problem. For the avoidance of doubt, reasonable efforts to notify you include giving such notice to the Customer of any problem.

6.3 From time to time, in order to maintain or improve the EvalExpert Services, or rectify defects with the EvalExpert Services (“Maintenance”), EvalExpert may need to disrupt the supply of EvalExpert Services, including to the extent that the EvalExpert Services may temporarily be partially or entirely unavailable.

6.4 Where it is commercially practical to do so, prior to performing Maintenance EvalExpert will:

6.4.1 provide reasonable notice of the estimated time of performance, duration, and extent of any interruption to the EvalExpert Services; and

6.4.2 make reasonable efforts to schedule such Maintenance at a time that will minimise the impact of such interruption to the EvalExpert Services on you.

6.5 Despite clause 6.4, you acknowledge that where EvalExpert determines in its absolute discretion that Maintenance is required as soon as possible to protect the integrity or quality of the EvalExpert Services (“Emergency Maintenance”), EvalExpert may perform such Emergency Maintenance immediately and without notice to you.

6.6 You acknowledge that the EvalExpert Services are provided using internet accessible infrastructure operated by third party service providers, and EvalExpert has no liability to you (unless otherwise explicitly accepted under this Agreement) for any failure or disruption of EvalExpert Services to the extent caused or contributed to by a failure of, or disruption to, any third party supplier, third party system or 3p Data Source.

6.7 You acknowledge that EvalExpert will not be in breach of this Agreement, and will have no liability to you or any other person (including the Customer or any User) arising from any loss or damage suffered, in connection with any disruption, interruption or degradation of the Services arising from Maintenance.

7. EVALEXPERT SERVICE UPDATES

7.1 You acknowledge that the EvalExpert Services are being continuously enhanced and improved, and EvalExpert may update the EvalExpert Services at any time without notice to you.

7.2 From time to time, at its discretion, EvalExpert may provide you with notice of an update to the EvalExpert Services, either before or after such update is made, in order to provide you with information about the nature and effect of such update.

8. USER CONTENT

8.1 EvalExpert acknowledges that User Content is at all times, and will remain, your property.

8.2 In order to supply the EvalExpert Services to you and only to the extent necessary to do so, you grant to EvalExpert a licence to use, reproduce, modify and communicate all User Content. EvalExpert may sub-licence these rights to third party suppliers of EvalExpert to the extent necessary or desirable to allow the proper supply of the EvalExpert Services.

8.3 You acknowledge that in the course of your use of the EvalExpert Services, you are solely responsible for complying with all laws, including privacy laws and Intellectual Property Rights laws, of any relevant jurisdiction, and that User Content must not infringe any such laws.

8.4 You acknowledge that EvalExpert may be obliged by law to disclose some or all User Content to government or regulatory authorities. If it is legally entitled to do so, EvalExpert will make best efforts to advise you prior to, and where possible consult with you and otherwise use reasonable endeavours to minimise any, such mandatory disclosure.

8.5 You acknowledge that you are solely responsible for the accuracy and appropriateness of User Content.

8.6 You agree that EvalExpert will have no responsibility or liability to you or any other person (including the Customer or any User) arising from any error, defect or inaccuracy in any User Content, and such responsibility will lie with you at all times.

8.7 The Customer indemnifies EvalExpert, and will keep EvalExpert indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) suffered by the Customer, any User, or any other person, resulting from or in connection with:

8.7.1 User Content (including the accuracy of User Content); and

8.7.2 any infringement of any law arising from or in connection with User Content; or

8.7.3 the use or disclosure of personal information of any customer of the Dealership.

9. ANALYTICS DATA

9.1 Except to the extent prohibited by clause 9.2, you acknowledge that Analytics Data:

9.1.1 may be collected and generated by EvalExpert and its licensors;

9.1.2 may be derived or compiled from Dealer Profile Data; and

9.1.3 may, subject to clause 9.2, be used by EvalExpert or its licensors for any purpose permitted by law, including publication and aggregation with other data or sale of Analytics Data or any reports generated from Analytics Data to any third party.

9.2 EvalExpert acknowledges that it must not, and must procure that its licensors must not, except to the extent agreed with a Customer in writing:

9.2.1 manipulate Analytics Data in a way that generates Dealer Profile Data;

9.2.2 identify the Customer or any Dealership as a source of any Analytics Data; or

9.2.3 make available to any person any Analytics Data which allows that person to identify the Customer or any Dealership as a source of any Analytics Data, or enable the reverse engineering of such Analytics Data to identify the Customer or any Dealership or reveal any Dealer Profile Data.

9.3 You acknowledge that EvalExpert or its licensors may be obliged by law to disclose some or all Analytics Data to government or regulatory authorities. If it is legally entitled to do so, in circumstances where EvalExpert considers such mandatory disclosure is likely to be of material interest to you, EvalExpert will advise you prior to, and consult with and otherwise use reasonable endeavours to minimise any, such mandatory disclosure.

10. ACCURACY OF EVALEXPERT RESULTS

10.1 The EvalExpert Services may include functions to perform (whether automatically, semi-automatically, or as part of a manual process) certain calculations or to provide assessments or reports using data (including User Data, Dealer Profile Data and data from 3P Data Sources) stored in, or processed by, the EvalExpert Services ("EvalExpert Results").

10.2 You acknowledge that, while EvalExpert will make practical commercial efforts to achieve a reasonable accuracy for EvalExpert Results, EvalExpert Results:

10.2.1 are estimates only, which are provided as a convenience to you to assist in the efficient conduct of daily business activities of the Dealership;

10.2.2 rely upon generalised data, including data from 3p Data Sources, which may contain errors, inaccuracies, or fail to take account of material variations in design or specification, and the presence of such errors, inaccuracies or failures may not be obvious to Users;

10.2.3 cannot and must not under any circumstances be relied upon for any accounting, business critical, taxation, commission, salary, wage or regulatory purpose; and

10.2.4 can otherwise only be relied upon if those EvalExpert Results are directly cross checked and verified against further expert assessment by methods unrelated to EvalExpert Services that are known to be reliable.

10.3 You acknowledge that:

10.3.1 the legal obligations upon any business, including the business of the Dealership, will vary depending on factors pertinent to that business including without limitation its business activities, geographic location and the laws, regulations and industry guidelines that may apply in any particular circumstance, and you are solely responsible for determining and ensuring your compliance with those laws and obligations;

10.3.2 EvalExpert Services are prepared on a general basis and may not be appropriate or complete for your specific circumstances or requirements, or those of the Dealership; and

10.3.3 EvalExpert does not guarantee or warrant the completeness, accuracy or currency of any part of the EvalExpert Services, including without limitation the EvalExpert Results.

10.4 The Customer indemnifies EvalExpert, and will keep EvalExpert indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) suffered by the Customer, any User, or any other person, resulting from the reliance upon such person on any EvalExpert Results.

11. SECURITY

11.1 You acknowledge that you are solely responsible for the use, supervision, management and control of your access to EvalExpert Services and you will ensure that access to the EvalExpert Services are protected at all times from misuse, damage, destruction or any other form of unauthorised use.

11.2 You acknowledge and agree that EvalExpert has no liability to you for any loss or damage suffered by you or any other person (including the Customer or any User) resulting from any unauthorised use or misuse of EvalExpert Services by any person (other than a representative of EvalExpert).

11.3 You acknowledge that EvalExpert has no obligation to refund or restate any quantity of Evaluations to you, in circumstances where any person who purports to be a User has performed evaluations without the knowledge or approval of the relevant User or Customer.

12. TERM AND TERMINATION

12.1 This Agreement starts on the day you first use the EvalExpert Services, and continues until terminated in accordance with this clause.

12.2 Either EvalExpert or the Customer may by notice in writing to the other party terminate this Agreement at the end of the then-current calendar month.

12.3 Either EvalExpert or the Customer may terminate their Agreement immediately if:

12.3.1 the other party breaches any material provision of this Agreement and fails to remedy the breach within 5 business days (for the avoidance of doubt, the obligation to pay Evaluation Fees by their due date is a material provision);

12.3.2 the other party breaches a material provision of this Agreement where the breach is not capable of remedy; or

12.3.3 an event of insolvency affecting the other party occurs.

12.4 If you are a User, you acknowledge that EvalExpert may terminate your Agreement immediately and without notice to you if EvalExpert' agreement with your Customer is terminated for any reason.

12.5 Unless instructed to do so sooner by the Customer Representative, EvalExpert will permanently destroy all User Content stored on or in connection with the EvalExpert Services within 12 months of the end of this Agreement.

13. CONFIDENTIAL INFORMATION AND PRIVACY

13.1 Each party must maintain the confidentiality of the other party's Confidential Information and will not without the prior written consent of the other, use, disclose, copy or modify the other party's Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement. Each party must take all precautions reasonably necessary to prevent any unauthorised use, disclosure, copying, publication or dissemination of the other party's Confidential Information, including at a minimum those taken by that party to protect its own Confidential Information.

13.2 Despite clause 13.1, you acknowledge that the EvalExpert Services are provided using cloud-hosted infrastructure operated by a third party service provider, and all data stored or processed by the EvalExpert Services, including any data incorporating your Confidential Information, will by technical necessity be provided to, and stored by, the third party service provider in accordance with its security and confidentiality protocols. You acknowledge that EvalExpert will have no liability to you under this Agreement if any Confidential Information is disclosed to any person or body due to an act or omission of the third party service provider that provides the infrastructure on which the EvalExpert Services operate.

13.3 Personal information collected, used or disclosed by EvalExpert for the purposes of providing EvalExpert Services will only be collected, used or disclosed in the following manner:

13.3.1 for the purposes of meeting EvalExpert’s obligations under this Agreement (which may include providing personal information to third party suppliers of Services);

13.3.2 to respond to any queries that you or the Customer may have;

13.3.3 in accordance with the EvalExpert Privacy Policy, as varied by EvalExpert from time to time; or

13.3.4 in accordance with the Privacy Act 1988 (Cth).

14. INTELLECTUAL PROPERTY RIGHTS

14.1 Subject to clause 14.2, EvalExpert warrants that no third party Intellectual Property Rights will be infringed by your use of the EvalExpert Services in accordance with this Agreement.

14.2 You acknowledge that:

14.2.1 certain material available to you through the EvalExpert Services will be supplied from 3P Data Sources, and may be subject to licence conditions and restrictions specified by the operator of the 3P Data Source;

14.2.2 you are solely responsible for ensuring that your use of any material supplied from 3P Data Sources will be in compliance with any licence conditions or restrictions specified by the operator of the 3P Data Source.

14.3 You warrant that:

14.3.1 to the extent any User Content or Dealership IP includes any material in which a third party owns Intellectual Property Rights, including without limitation any third party Intellectual Property Rights in any logos, trade marks or copyright material, you have all rights and licences necessary or desirable to use such material with the EvalExpert Services; and

14.3.2 no third party Intellectual Property Rights are or will be infringed by your use of the EvalExpert Services, including any such third party Intellectual Property Rights in any Dealership IP or User Content.

14.4 Each party acknowledges and agrees that:

14.4.1 any Intellectual Property Rights existing prior to the date of this Agreement will not be affected by this Agreement;

14.4.2 all Intellectual Property Rights in EvalExpert IP are owned by EvalExpert (or its licensors as the case may be) and nothing in this Agreement assigns or otherwise transfers any right, title or interest in any of the EvalExpert IP to you; and

14.4.3 all Intellectual Property Rights in Dealership IP are owned by the Customer (or its licensors as the case may be) and nothing in this Agreement assigns or otherwise transfers to EvalExpert any right, title or interest in any of the Dealership IP.

14.5 During the term of this Agreement, you grant to EvalExpert a worldwide, royalty free licence to use, reproduce, modify and adapt Dealership IP and User Content to the extent necessary for EvalExpert to supply the EvalExpert Services.

14.6 Subject to clause 14.2, EvalExpert will be liable for and will indemnify you from and against any liability and/or any loss or damage arising directly from any claim that your use of the EvalExpert Services in accordance with this Agreement infringes the Intellectual Property Rights of any person, except and to the extent that any liability, loss or damage arises as the result of your act or omission, or those of your representatives or any of your subcontractors (other than EvalExpert) or the Customer or any User.

14.7 The Customer will be liable for and will indemnify EvalExpert against any liability and/or any loss or damage of any kind whatsoever arising directly or indirectly from any claim that the use of Dealership IP or User Content in accordance with this Agreement or any directions of the Customer, the Customer Representative or any User infringes the Intellectual Property Rights of any person, except and to the extent that any liability, loss or damage arises as the direct result of an act or omission of EvalExpert, its representatives or any of its subcontractors.

15. LIABILITY

15.1 Other than express terms of this Agreement and warranties, conditions, rights or guarantees implied by relevant legislation, including the Competition and Consumer Act 2010 (Cth), the exclusion of which from an agreement would contravene a statute or cause part or all of this clause to be void (“Non-excludable Rights”), you agree that EvalExpert excludes all liability arising from any implied or express representations, terms, conditions or warranties that would otherwise apply to the EvalExpert Services.

15.2 Except for liability in relation to breach of any Non-excludable Rights and liability under clause 15.4, EvalExpert’s maximum aggregate liability to you in contract, including for one or more breaches of any express term or terms of this Agreement, tort (including negligence), statute or otherwise, is limited to an amount equal to the Evaluation Fees actually paid to EvalExpert by the Customer in the month during which the event giving rise to the liability occurred.

15.3 For breach of any Non-excludable Rights (other than where by law liability for breach of Non-excludable Rights cannot be limited), EvalExpert’s liability is limited, at its option to, where the breach relates to goods, repairing or replacing those goods, or paying the cost to have those goods repaired or replaced, and where the breach relates to services, supplying those services again, or paying the cost to have those services supplied again.

15.4 Except for liability in relation to breach of any Non-excludable Rights, EvalExpert excludes all liability to you for lost profits, lost revenue, lost savings, lost data (including loss of any User Content) and any consequential or indirect loss arising out of, or in connection with the EvalExpert Services and any claims by any third person (including a User or any customer of the Dealership) or otherwise arising under this Agreement, even if EvalExpert knew that the loss was possible, or the loss was otherwise foreseeable.

16. VARIATION

16.1 These Terms of Use (including the Evaluation Fees) may be varied by EvalExpert at any time without notice by publishing updated Terms of Use on the EvalExpert website at www.eval.expert, or by otherwise providing notice to the Customer in writing, and the Agreement will be amended in accordance with those varied Terms of Use on and from the first day of the calendar month following their publication or written notice. You will confirm your acceptance of, and agreement to, the amended Agreement on and from the date it becomes effective by paying Evaluation Fees in respect of the month from which the amended Agreement will take effect.

16.2 If you do not accept proposed amendments to the Terms of Use published in accordance with clause 16.1, you may terminate this Agreement by ceasing your use of the EvalExpert Services at any time prior to the amended Agreement taking effect.

16.3 Other than as permitted by clause 16.1, this Agreement may only be varied by written agreement between EvalExpert and the Customer.

17. GENERAL

17.1 This Agreement constitutes the entire agreement between the parties in relation to any matter dealt with in this Agreement and supersedes any earlier agreement or understanding between the parties and any earlier condition, warranty, indemnity or representation imposed, given or made by a party, in relation to that subject matter.

17.2 Notwithstanding any other provision of this Agreement, EvalExpert will not be liable for any loss or damage caused by its failure or delay to supply the EvalExpert Services due to anything outside the reasonable control of EvalExpert including but not limited to your acts or omissions, system or network failure, failure of any telecommunications facilities or the act or omission of any third party.

17.3 You must not assign or novate the benefit of this Agreement without EvalExpert’s prior written consent (which will not be unreasonably withheld).

17.4 You agree that EvalExpert may assign or novate this agreement to any person at any time, without further notice to you, and this Agreement constitutes your prior consent in writing to such assignment or novation.

17.5 Waiver of any power or right under this Agreement must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.

17.6 If part or all of any clause of this Agreement is found to be illegal or unenforceable, that part of the Agreement will be deemed severed from the Agreement and will not affect the continued operation of the remaining provisions of the Agreement.

17.7 The parties agree that:

17.7.1 this Agreement may be formed, and will in all respects be binding on the parties if so formed, by any electronic means; and

17.7.2 any requirement under this Agreement that a document or notice be given “in writing” may be satisfied by a document displayed, stored and retrieved by electronic means.

17.8 This agreement is governed by and construed in accordance with the laws in force in the State of Queensland, Australia, and the parties agree that any legal action will be heard in, and subject to the exclusive jurisdiction of, the courts of Queensland.