1. About these Terms
1.1 These Terms and Conditions (“Terms”) set out the terms on which carsales.com.au Pty Ltd (“carsales”) will provide you, or the customer on whose behalf you have signed the Insertion Order (the “Client”), with carsales match Services. By submitting an Insertion Order, the Client acknowledges that it has read, understood, and agreed to be bound by these Terms and the Insertion Order.
1.2 These Terms are supplemental to the General Advertising Terms referenced in your Insertion Order, and any other contracts you may have entered into governing the advertising services.
2. Definitions
2.1 In these Terms:
(a) “carsales Data Set” means the de-identified data provided or made available by carsales for the purpose of performing or facilitating the carsales match Services.
(b) “carsales match Services” means the matching of the Client Data Set and the carsales Data Set as described in the Insertion Order.
(c) “Client Data Set” means the hashed email addresses, phone numbers or other data specified in the Insertion Order to be provided by the Client for the purpose of obtaining the carsales match Services.
(d) “Confidential Information” means:
(i) the details of the carsales match Services;
(ii) these Terms;
(iii) Client Data Set;
(iv) information or material proprietary to or deemed to be proprietary, including without limitation information about corporate opportunities, business plans, business budgets, research, technology, financial and sales data, client lists, contractual documentation, pricing and trading terms, concepts, accounts, business development strategies, market research information, editorial plans, membership or subscriber information, circulation details, promotional strategies, acquisition prospects, marketing and merchandising techniques, trade secrets, prospective names and trade marks;
(v) information designated as confidential;
(vi) information that ought to be reasonably regarded by carsales as confidential; and extends to all forms of storage or representation of the Confidential Information including, but not limited to, loose notes diaries, memoranda, drawings, photographs, electronic storage and computer print-outs.
Information is not Confidential Information if:
(vii) it is in the public domain, unless it came into the public domain as the result of a breach of confidentiality;
(viii) it is already known by carsales at the time this agreement is entered into;
(ix) it is lawfully obtained by carsales from a third party without any breach of confidentiality; or
(x) it is developed by carsales independently without using or referring to the Confidential Information of the Client.
(e) “General Advertising Terms” means the general advertising service terms hosted at https://business.carsales.com.au/advertising-service-terms/.
(f) “Matched Data Segments” means those components of the Client Data Set and the carsales Data Set that carsales’ Platform identifies as sharing common properties.
(g) “Permitted Purposes” means the purposes set out in the Insertion Order in respect of the carsales match Services, which may include the following:
(i) utilising the Matched Data Segments to develop and implement targeted advertising campaigns for the Client across carsales’ Properties;
(ii) providing insights to the Client on the number of Client customer records that are in the Matched Data Segments;
(iii) utilising the Matched Data Segments as building blocks to fuse specific traits or for look-a-like modelling with the carsales Data Set to increase the scale of the audience segment; and
(iv) conducting analytics on Client Data Sets and the carsales match Services (provided that no confidential information, including client-specific performance data, is disclosed by carsales to third parties).
(h) “Personal Information” has the meaning given to that term in the Privacy Act.
(i) “Platform” means the third party platform used by carsales for the purpose of performing the carsales match Services.
(j) “Privacy Act” means the Privacy Act 1988 (Cth).
(k) “Privacy Laws” means the Privacy Act and any other applicable privacy laws, including any determination, code or guideline issued under those laws.
(l) “Properties” means all websites owned or operated by carsales.com Ltd or its Related Bodies Corporate (as that term is defined in the Corporations Act 2001 (Cth)).
2.2 Capitalised terms that are not defined in these Terms have the meaning given to those terms in the General Advertising Terms.
3. carsales match Services
3.1 To obtain the carsales match Services, the Client will provide the Client Data Set in accordance with the timeframes and processes set out in the applicable Insertion Order.
4. carsales’ confidentiality obligations
4.1 carsales agrees to use Confidential Information disclosed to it by the Client solely for the purpose of performing its obligations and exercising its rights under these Terms, and agrees not to disclose that Confidential Information to any third party (other than carsales’ Platform provider, its officers, employees and professional advisers with a need to know) without the prior written consent of the Client. carsales may disclose Confidential Information to the extent required to comply with any law, court order or other mandatory legal requirement, or the listing rules of a recognised stock exchange.
4.2 carsales must protect the Client’s Confidential Information using the same degree of care that is used in protecting its own proprietary and confidential information, but always at least a reasonable degree of care.
4.3 Upon completion of the carsales match Services, or upon the termination of the carsales match Services, carsales shall return or destroy all Confidential Information as directed by the Client. Nothing in this clause requires carsales to return or destroy any Confidential Information which is required for compliance or corporate governance purposes, or which is incorporated as data in storage media as part of carsales’ standard backup and storage procedures, and it is not reasonably practicable to recover or delete that data.
4.4 This clause survives termination of these Terms.
5. Client’s acknowledgments, obligations, and warranties
5.1 The Client represents and warrants that:
(a) all data comprising the Client Data Set has been collected by the Client in compliance with all laws, including Privacy Laws;
(b) the Client’s supply of the Client Data Set to carsales and carsales’ Platform provider complies with all laws, including Privacy Laws;
(c) the Client has all necessary consents, rights, title and authority to supply the Client Data Set to carsales and the Platform provider for the purpose of the carsales match Services;
(d) the Client Data Set will not include any ‘sensitive information’ as that term is defined in the Privacy Act;
(e) the Client Data Set is free from any malicious code or corruption; and
(f) carsales’ use of the Matched Data Segments in accordance with the Permitted Purposes and these Terms will not breach any laws, including Privacy Laws, or obligations owed by the Client to any third party.
5.2 The Client is responsible for ensuring the Client Data Set matches the required format specified by carsales or the Platform provider and will be required to fix any incompatibility at its cost.
5.3 The Client agrees it will not:
(a) reverse engineer, derive personal information from, or attempt to re-identify, any Matched Data Segments;
(b) use any Matched Data Segments to create any user profiles or other identifiers; or
(c) merge Personal Information with any non-personal data which carsales makes available.
6. Intellectual property and privacy
6.1 carsales agrees the Client will retain all rights, title and interest (including all Intellectual Property Rights) in the Client Data Set.
6.2 The Client grants carsales a non-exclusive, royalty-free licence (with the right to sub-license to carsales’ Platform provider) to use the Intellectual Property Rights in the Client Data Set for the purpose of performing the carsales match Services.
6.3 To the extent the Client Data Set contains Personal Information, the Client must comply with the Privacy Act in all respects as though the Client is an APP entity as defined in the Privacy Act.
7. How and when the Fees are payable
7.1 The Client will pay the Fees as set out in the Insertion Order.
7.2 Fees are:
(a) invoiced in respect of the month the Insertion Order is received; and
(b) payable within 30 days of invoice.
7.3 All rates and charges are quoted exclusive of GST unless expressly stated otherwise. carsales will issue the Client with a valid tax invoice and the Client will pay to carsales any applicable GST in addition to the rates and charges quoted.
8. Termination
8.1 These Terms apply for the duration of the Client’s carsales match Services.
8.2 If the Client breaches these Terms, carsales may terminate the carsales match Services.
9. Liability
9.1 The Client acknowledges that carsales’ ability to provide the carsales match Services is dependent on the Client and third parties performing their obligations. Without limiting clause 9.2, the Client will have no remedy against carsales for any delay or failure to provide the carsales match Services where the delay or failure is the result of any act or omission of the Client or any third party.
9.2 carsales match Services are provided on an “as is” basis. To the full extent permitted by law, all implied warranties and guarantees are hereby excluded and carsales will only be liable to the Client:
(a) pursuant to any guarantee, right or term that arises, is created or is implied by operation of law and cannot be excluded, provided that, to the full extent permitted by law, any such liability of carsales is limited, in aggregate in respect of all claims or causes of action, to the sum of Fees paid or payable in respect of the services to which the claim or cause of action relates; or
(b) if the Client’s claim arises from any deliberate breach of these Terms or fraud by carsales.
9.3 carsales’ liability in respect of the advertising component of the carsales match Services is otherwise as set out in the General Advertising Terms.
9.4 This clause survives termination of these Terms.
10. Indemnity
10.1 This indemnity applies in addition to any indemnity set out in the General Advertising Terms or any other contracts the Client has entered into with carsales.
10.2 The Client indemnifies carsales, its Related Bodies Corporate and each of their directors, officers, agents and employees against all actions, claims, proceedings, demands and any other liability (including the cost of defending or settling any actions, claims and demands) which may be instituted against, claimed or demanded from carsales arising wholly or partially, directly or indirectly, out of the Client’s breach of:
(a) clause 5 (Client’s acknowledgments, obligations, and warranties); or
(b) clause 6 (Intellectual property and privacy);
except to the extent that such actions, claims, proceedings, demands or liability are caused by carsales’ own acts or omissions, and subject to a maximum liability cap of $10 million.
11. General
11.1 (Assignment) Subject to clause 11.2 below, neither party may assign or transfer its rights or obligations under these Terms without the other party’s prior written consent which shall not be unreasonably withheld. However, nothing in this clause requires carsales to obtain prior written consent from the Client to novate its rights or obligations under these Terms to a Related Body Corporate.
11.2 (Subcontractors) carsales may subcontract its obligations under these Terms but will remain liable for acts and omissions of subcontractors as if they were carsales’ acts and omissions.
11.3 (Governing Law) These Terms are governed by and construed in accordance with the laws of the state of Victoria, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts in that state.
11.4 (Variation) These Terms may be varied by carsales from time to time by publishing them at https://business.carsales.com.au/terms/. The Client is bound by the version that is published at the time it signs the Insertion Order.
11.5 (Entire Agreement) These Terms, together with the other documents referred to in these Terms, set out the entire agreement and understanding between the parties with respect to the carsales match Services and supersede all prior agreements, understandings and representations with respect to the carsales match Services.