Autotrader Connect Plus Terms and Conditions

Lead Generation Guarantee Terms

Background

  1. These lead generation guarantee terms (Lead Generation Guarantee Terms) are intended to supplement, and should be read in conjunction with, the terms set out in the advertising insertion order (AIO) between the Advertiser and Gumtree AU Pty Ltd ABN 33 616 996 840 (Gumtree Group) (together, the parties).
  2. The Advertiser has agreed to place some of its listings (Advertiser’s Listings) on the Gumtree Websites under the terms of a subscription agreement agreed between the parties (Subscription Agreement).
  3. Under the AIO, Gumtree Group has agreed to display the Advertiser’s Listings on Third Party Platforms in exchange for the price set out in the AIO.
  4. Gumtree Group has agreed to guarantee the Advertiser a minimum number of Leads per month in exchange for the Advertiser agreeing to maintain a minimum number of the Advertiser’s Listings on the Gumtree Websites.

Operative provisions

1. DEFINITIONS

1.1 Definitions

  1. Consumer Law: means the Competition and Consumer Act 2010 (Cth) as amended from time to time including the Australian Consumer Law set out in Schedule 2, and all related regulations.
  2. Gumtree Websites: means, as applicable, any of the Gumtree website (www.Gumtree.com.au), the CarsGuide website (www.CarsGuide.com.au) and the Autotrader website (www.Autotrader.com.au) as determined by Gumtree in its absolute discretion.
  3. Lead: means a communication initiated by a User who expresses interest in purchasing a vehicle that is the subject of the Advertiser’s Listing by phone call, email, SMS or completing a lead form.
  4. Third Party Platforms: means the platforms on which the Advertiser’s Listings will be advertised by Gumtree Group as set out in the AIO.
  5. User means a user of a Third Party Platform.

1.2 Incorporation by Reference and Interpretation

  1. The following documents are incorporated into these Lead Generation Guarantee Terms by reference:
    1. any executed AIO between the parties; and
    2. Gumtree Group’s Terms & Conditions available at: https://www.gumtreeforbusiness.com.au/advertising-terms-and-conditions/ (Gumtree’s Advertising Terms), as amended from time to time on notice to the Advertiser.
  2. Unless the context permits otherwise, capitalised terms will have the meaning given to them in the AIO or Gumtree’s Advertising Terms.

1.3 Hierarchy in Event of Conflict

In the event of any inconsistency between the documents forming part of the Agreement, these Lead Generation Guarantee Terms will take precedence over the terms in the AIO or Gumtree’s Advertising Terms.

2. TERM

  1. These Lead Generation Guarantee Terms and the Agreement commence on the Start Date set out in the AIO and continue for a 3-month period (Trial Term) unless terminated earlier in accordance with clause 6 or extended in accordance with clause 2(b).
  2. Unless the parties agree otherwise in writing, the Agreement will roll-over on a month-to-month basis (Roll-over Term).
  3. These Lead Generation Guarantee Terms and the Agreement will apply to each Trial Term and Roll-over Term unless otherwise agreed.

3. GUARANTEE

3.1 Advertising Services

  1. The Advertiser will post the Advertiser’s Listings on the Gumtree Websites in accordance with the Subscription Agreement, or on the subscription terms as subsequently agreed between the parties;
  2. The Advertiser guarantees it will maintain a minimum level of active listings for the duration of the Agreement, being no less than 85% of the Advertiser’s average (mean) number of active listings over the preceding three (3) months (Listings Guarantee), calculated by Gumtree Group at month-end in accordance with the below formula:

Minimum Listings Volume = 0.85 x 3-Month Live Listings Average

where:

  1. 3-Month Live Listings Average = (Month 1 Live Listings Average + Month 2 Live Listings Average + Month 3 Live Listings Average) / 3.
  2. Month [X] Live Listings Average = the average (mean) number of daily live listings across that calendar month, calculated daily by Gumtree Group.
  3. Decimals will be rounded up or down to the nearest whole number.

Example:

  1. If Gumtree Group wishes to calculate the 3-Month Live Listings Average in February, it will calculate the average daily live listings for each of November, December and January and compare the 3-Month Live Listings Average with that of February’s average of daily live listings.
  2. If November’s Live Listings Average = 900, December’s Live Listings Average = 1,000 and January’s Live Listings Average = 1,100, the 3-Month Live Listings Average would be 1,000.
  3. The Minimum Listings Volume would be 0.85 x 1,000 = 850.
  4. The Advertiser will comply with the Listings Guarantee if February’s Live Listings Average is 850 or more.

3.2 Monthly Lead Guarantee

  1. Subject to, and consideration for, the Advertiser’s compliance with clause 3.1(b), Gumtree Group agrees to deliver to the Advertiser, in each calendar month the number of Leads set out in the AIO (under the heading of ‘“Lead” Quantity) (the Monthly Lead Guarantee).
  2. If, subject to clause 3.2(c), in any given month, Gumtree Group fails to deliver the Monthly Lead Guarantee, Gumtree Group agrees to use reasonable endeavours to ‘make good’ the following month by guaranteeing an equivalent number of Leads the following month, in addition to providing the Monthly Lead Guarantee.
  3. If Gumtree Group delivers less than 85% of the Monthly Lead Guarantee in any month, Gumtree Group will work cooperatively with the Advertiser and in good faith to address the shortfall and ‘make good’ on a reasonable and staged basis.
  4. The parties acknowledge and agree that:
    1. the Monthly Lead Guarantee applies to aggregate Lead volume only and does not extend to the geographic distribution of Leads, including distribution by state or territory;
    2. Lead delivery is not guaranteed to be evenly distributed across individual vehicles, listings, or models;
    3. Gumtree Group makes no guarantee that any Leads will result in the purchase of any vehicles included in an Advertiser’s Listing; and
    4. if:
      1. the Advertiser knows or reasonably suspects that it will not achieve the Listings Guarantee; or
      2. Gumtree Group knows or reasonably suspects it will not meet the Monthly Lead Guarantee in any given month,
      3. the relevant party must promptly notify the other and work cooperatively to ensure the relevant issue is promptly resolved.

3.3 Measurement and Reporting

Gumtree Group will complete a monthly report of the final Lead count figures using its own tracking and analytics systems and will notify the Advertiser of the verified figures within 5 business days of month-end.

3.4 Communications between Users and the Advertiser

  1. The parties agree that Gumtree Group will be entitled to review any communications and/or the terms and conditions between a User and the Advertiser that relate to the purchase of their vehicle.
  2. The parties acknowledge and agree that no User is bound by these Lead Generation Guarantee Terms or the Agreement.

4. APPLICABLE CONSUMER AND FAIR TRADING LAWS

In carrying out any obligations in connection with the Agreement, the Advertiser must:

  1. without limitation, comply with:
    1. the Consumer Law;
    2. fair trading laws; and
    3. any other applicable laws, regulations and standards;
  2. ensure that it interacts with Users in good faith and in accordance with all applicable laws under clause 4(a);
  3. disclose or bring to the attention of each User the substance and effect of any terms and conditions that the Advertiser requires the User to enter into, which may substantially prejudice the User’s interests; and
  4. not, and must not attempt to, mislead, deceive, or harass any User or act in a manner that is likely to mislead, deceiver or harass any User, including in a manner that may breach the Consumer Law.

5. PRIVACY

  1. Each party must comply with its obligations under the Privacy Act 1988 (Cth) including the Australian Privacy Principles (Privacy Act).
  2. If the Advertiser becomes aware of a breach of ‘Personal Information’ relating to any User that constitutes an ‘eligible data breach’ (as those terms are defined in the Privacy Act) and must comply with Gumtree Group’s ‘Data Breach Response’ requirements as communicated to it by Gumtree Group from time to time.

6. TERMINATION

6.1 Termination for Convenience

  1. During the Trial Term, either party may terminate the Agreement by written notice, provided that:
    1. such notice must be delivered no later than 1 Business Day after the end of the month; and
    2. termination will take effect from the last day of the previous month.
  2. After the end of the Trial Term, either party may terminate the Agreement with 30 days’ written notice to the other party.

6.2 Termination for Guarantee Shortfall

If the Advertiser fails to meet the Listings Guarantee in any month, Gumtree Group may terminate the Agreement immediately by written notice to the Advertiser.

6.3 Termination for Breach

Either party may immediately terminate the Agreement by written notice to the other party if the other party is in material breach of these Lead Generation Guarantee Terms and has failed to remedy that breach within 5 business days of receiving written notice of the breach.

6.4 Consequences of Termination

  1. Upon termination, Gumtree Group must promptly provide a final monthly report in accordance with clause 3.3.
  2. If:
    1. Advertiser has terminated due to Gumtree Group’s unremedied breach under clause 6.3; or
    2. Gumtree Group has terminated for convenience under clause 6.1, and

Gumtree Group has not meet the Monthly Lead Guarantee (which will be pro-rated if termination occurs mid-month), Gumtree Group agrees to use all reasonable endeavours to ‘make good’ and deliver an equivalent number of Leads to the shortfall the following month, time being of the essence and the parties acknowledge and agree that the Agreement will continue until the date that is the later of the shortfall has been ‘made good’.

6.5 No effect on Subscription Agreement

Termination of these Lead Generation Guarantee Terms or the Agreement will have no effect on the terms of any other agreement between the parties, including the Subscription Agreement.

7. GENERAL

7.1 Dispute Resolution

If a dispute arises between the parties under these Lead Generation Guarantee Terms, the parties agree to negotiate in good faith to resolve the dispute and will refer resolution of the dispute to the chief executive officer of each party, or their nominees. If a dispute is not settled within 20 Business Days, either party may refer the matter to mediation in accordance with the rules of the Australian Disputes Centre.

7.2 Variation

These Lead Generation Guarantee Terms may only be amended by mutual written agreement.

7.3 Governing Law

The laws applicable in New South Wales, Australia govern these Lead Generation Guarantee Terms. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia and any courts competent to hear appeals from those courts.