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Dealer Terms & Conditions

THIS AGREEMENT is effective from May 1st, 2020.

BETWEEN:

We, Motorgy registered in Kuwait, whose registered office is at FLOOR 6 Tijaria Tower, Al Soor Street, Kuwait City, Kuwait ( “Motorgy”), and the “Enrolled Deal.

RECITALS:

(A) Motorgy operates an electronic vehicle platform, through http//:www.motorgy.com website and a smartphone applications (the “App”) , collectively referred to as the “Motorgy Platform”, made available for the Enrolled Dealer for the buying of automotive vehicles (the “Vehicles”) of various types.

(B) The Enrolled Dealer wishes to access and use the Motorgy Platform for the purpose of purchasing Vehicles pursuant to the terms of this Dealer Agreement, the Dealer Vehicle Purchase, and offer Service agreement and its accompanying schedules (the “Agreement”).

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement the following words shall have the following meanings:
 “Agreement” has the meaning given in Recital The Enrolled Dealer wishes to access and use the Motorgy Platform for the purpose of purchasing Vehicles pursuant to the terms of this Dealer Agreement, the Dealer Vehicle Purchase and offer Service agreement and its accompanying schedules (the “Agreement”).

Motorgy operates an electronic vehicle platform, through the web site https://motorgy.com website and their smartphone applications (the “App”) collectively referred to as the MOTORGY Platform”, made available for the Enrolled Dealer for the buying of automotive vehicles (the “Vehicles”) of various types.;

“Approved offering Limit” has the meaning given in clause The Enrolled Dealer shall be required to pay Motorgy a security Deposit. The amount of any deposit shall be determined by Motorgy and be reflective of the amount that the Enrolled Dealer has requested should be its offering limit for potentially purchasing Vehicle(s) on the Platforms (and which amount has been approved by Motorgy (the “Approved offering Limit”).;

“Confidential Information” means any information of a confidential or proprietary nature belonging to a party, including without limitation, details of its business methods, the identity of any of its customers or suppliers, its pricing structure or margins, any financial information or its terms of business with customers or suppliers;

“Deposit” means a deposit amount to be paid by the Enrolled Dealer to Motorgy and which shall be kept by Motorgy pursuant to the terms of this Agreement, in order for the Enrolled Dealer to make offers for Vehicles using the Motorgy Platform.

“Disclosing Party” has the meaning given in clause Subject to clause 11.2, a party receiving Confidential Information (“Receiving Party”) undertakes to the other (“Disclosing Party”) that it shall, and shall use all reasonable endeavors to procure that its employees, contractors and agents shall, using at least the same degree of care (but no less than a reasonable degree of care), at all times during the continuance of this Agreement and for a period of two years after its termination to:;

“Disclosed Agent” has the meaning given in clause 3.4.3

“Direct Purchases” has the meaning given in clause the ability for the Enrolled Dealer to directly purchase Vehicles from Motorgy sellers. 

 “Login Information” means a user ID and a password provided by Motorgy to allow the Enrolled Dealer to access the Motorgy Platform;

 “Offer Acceptance” means the acceptance by Motorgy of an offer placed by the Enrolled Dealer on the Motorgy Platform.

 “Receiving Party” has the meaning given in clause Subject to clause 11.2, a party receiving Confidential Information (“Receiving Party”) undertakes to the other (“Disclosing Party”) that it shall, and shall use all reasonable endeavors to procure that its employees, contractors and agents shall, using at least the same degree of care (but no less than a reasonable degree of care), at all times during the continuance of this Agreement and for a period of two years after its termination to:

“Registration” means registration on the Motorgy Platforms.

“Services” has the meaning given in clause Motorgy agrees to make available to the Enrolled Dealer services through the Platforms. These services may be provided in either of the following manners:

 “Vehicles” has the meaning given in Recital Motorgy operates an electronic trading vehicle offer platform, through the https://motorgy.com website and smartphone applications (the “App”) , collectively referred to as the “Motorgy Platform”, made available for the Enrolled Dealer for the buying of automotive vehicles (the “Vehicles”) of various types.;

“Vehicle Purchase and offer agreement means an agreement for the purchase of a vehicle including all relevant details of the vehicle and the parties involved in the purchase, provided by Motorgy’s efforts;

 “Motorgy Account” means an account created to use the Motorgy Platforms.

“Motorgy Platforms” has the meaning given in Recital Motorgy operates an electronic vehicle platform, through the https://motorgy.com website and their smartphone applications (the “App”) , collectively referred to as the “Motorgy Platforms”, made available for the Enrolled Dealer for the buying of automotive vehicles (the “Vehicles”) of various types.; and

“Motorgy Seller” means a third party seller of a Vehicle, who is not Motorgy.

“Motorgy Seller Portion” means the portion of the Vehicle Purchase Price that the Motorgy Seller would be entitled to prior to discharging any outstanding bank loan, obligations or financing relating to the vehicle being discharged.

1.2 Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and references to any gender shall include all other genders. References to any person (which for the purposes of this Agreement shall include bodies corporate, unincorporated associations, partnerships, governments, governmental agencies and departments, statutory bodies or other entities, in each case whether or not having a separate legal personality) shall include the person’s successors and assigns in accordance with this Agreement.

1.3 References to Recitals, Schedules and clauses are to (respectively) recitals and schedules to and clauses of this Agreement (unless otherwise specified) and references within a schedule to paragraphs are to paragraphs of that schedule (unless otherwise specified).

1.4 The Recitals and Schedules form part of this Agreement and shall have the same force and effect as if set out in the body of this Agreement.

1.5 The table of contents and headings and subheadings in this Agreement are for convenience only and shall not affect the construction of this Agreement.

1.6 When used in this Agreement, “other” and, except in relation to the computation of periods of time, “include” and “including”, do not connote limitation in any way.

1.COUNTRY

1.1This agreement is valid in the state of Kuwait.

2. COMMENCEMENT AND TERM

2.1 This Agreement shall commence on the date of its signing by the parties and shall continue in full force and effect unless otherwise amended in writing by the parties or terminated earlier in accordance with clause Termination.

2.2 A copy of this Agreement (including any updated versions) shall be made available on the App and Website from time to time.

3. SERVICES

3.1 Motorgy agrees to make available to the Enrolled Dealer services through the Motorgy Platforms. These services may be provided in either of the following manners:

            •           3.1.1 the ability for the Enrolled Dealer to directly purchase Vehicles from Motorgy and which have been previously purchased by Motorgy from a Motorgy Seller (the “Direct Purchases”); and

            •           3.1.2 the facilitation of the sale of Vehicles by a Motorgy Seller to the Enrolled Dealer (the “E-Marketplace Service”) (collectively, the “Services”).

3.2 The terms of this Agreement apply to the Enrolled Dealer’s use of the Services. Schedule 1 shall apply to any Direct Purchases by the Enrolled Dealer. Schedule 2 shall apply to any use by the Enrolled Dealer of the E-Marketplace Service.

3.3 The Enrolled Dealer shall have the opportunity to digitally view Vehicles on the Motorgy Platform. The Enrolled Dealer shall determine how much it is prepared to offer for a particular Vehicle. If the seller accepts an offer for a Vehicle, notification shall be made to the Enrolled Dealer through the App.

3.4 By signing this Agreement, the Enrolled Dealer acknowledges and agrees that:

            •           3.4.1 it accepts and shall comply with the terms and use of the App and Motorgy Platform (and that Motorgy may change from time to time); and

            •           3.4.2 there may be other features and services that are available on the Motorgy Platform which may be governed by a separate set of policies or terms, and that in using such features and services the Enrolled Dealer shall be bound by such additional applicable policies or terms.

4. MOTORGY ACCOUNT

4.1 An Enrolled Dealer becomes a user of the Motorgy Platform, and consequently a user of the Services, when:

            •           4.1.1 accessing the Motorgy Platform;

            •           4.1.2 creating a Motorgy Account through Registration; and

            •           4.1.3 searching a Vehicle listing on the Motorgy Platform.

4.2 An Enrolled Dealer, in the course of Registration (and in all circumstances within no later than 10 days of the date of Registration), shall:

            •           4.2.1 visit the offices of Motorgy and meet in person with the Motorgy dealership management team (with such visit being undertaken by the relevant individual in the case of an Enrolled Dealer who is an individual, or an authorized representative (and such person being able to evidence this to the satisfaction of Motorgy) in the case of an Enrolled Dealer who is a corporate body);

            •           4.2.2 submit any customer due diligence required by Motorgy and to the reasonable satisfaction of Motorgy (including but not limited to: commercial licenses or certificates of incorporation; passport copies of individuals; passport copies of directors, shareholders or ultimate beneficial owners of corporate bodies; proof of registered addresses; and Kuwait Tax Authority Tax Registration Numbers/Certificates) (where such documents are applicable); and

            •           4.2.3 sign an original version of this Agreement together with the “Onboarding Requirements”).

4.3 This Agreement and the obligations in it (other than the Surviving Clauses) are conditional in all respects upon the Onboarding Requirements having been met to the satisfaction of Motorgy.

4.4 If the Onboarding Requirements have not been fulfilled to the satisfaction of Motorgy (or waived wholly or in part by Motorgy) in the time period specified in clause An Enrolled Dealer, in the course of Registration (and in all circumstances within no later than 10 days of the date of Registration), shall: (or such later date as notified to the Enrolled Dealer by Motorgy), then other than with respect to this clause If the Onboarding Requirements have not been fulfilled to the satisfaction of Motorgy (or waived wholly or in part by Motorgy) in the time period specified in clause 4.2 (or such later date as notified to the Enrolled Dealer by Motorgy), then other than with respect to this clause 4.4 and the Surviving Clauses (which shall survive and shall remain in full force and effect and the Surviving Clauses (which shall survive and shall remain in full force and effect) this Agreement shall be void and all rights and obligations of the parties under this Agreement shall cease and neither party shall have any claim or cause of action against the other party for costs, damages, compensation or otherwise in respect of any provision of the Agreement.

4.5 Once the process of Registration is complete, the Enrolled Dealer shall receive Login Information. To the extent permitted by applicable law, Motorgy shall not be liable for any loss or damage resulting from misplaced, lost, stolen, or forgotten Login Information.

4.6 The Enrolled Dealer shall notify Motorgy of any unauthorized use of its Account or its Login Information immediately upon suspicion by the Enrolled Dealer of such unauthorized use.

 

5. GENERAL WARRANTIES AND CONDITIONS APPLICABLE TO THE SERVICES

5.1 By registering with Motorgy and using the Motorgy Platform and the Services, the Enrolled Dealer warrants and represents to Motorgy that:

            •           5.1.1 all information provided by the Enrolled Dealer upon Registration is true, accurate, not misleading, complete and up to date;

            •           5.1.2 the Enrolled Dealer is a professional vendor in Vehicles (whether new or used) and holds all necessary licenses and approvals from the relevant authorities to buy and sell Vehicles and to be a recipient of the Services (to the extent required) (and such licenses and approvals shall be made available at all times for inspection by Motorgy upon reasonable request);

            •           5.1.3 the Enrolled Dealer holds the necessary certificates required by applicable certificates issued by the Kuwait Authority (and such certificates shall be made available at all times for inspection by Motorgy upon reasonable request) (to the extent the Enrolled Dealer is required to have the same); and

            •           5.1.4 in the case of an Enrolled Dealer who is an individual, the Enrolled Dealer is at least eighteen years of age at the time of Enrolment.

5.2 The Enrolled Dealer shall notify Motorgy of any change in the information provided by the Enrolled Dealer following Registration immediately following such change (and in any case no later than 48 hours).

5.3 The Enrolled Dealer agrees that:

            •           5.3.1 the Services are used by the Enrolled Dealer at its own risk, and that such Services are being provided on an “AS IS” and “WHERE IS” basis;

            •           5.3.2 it is solely responsible for any loss or damage incurred as a result of its use of the Services and the Motorgy Platform, as well as any information, material or data obtained (whether in respect of a Vehicle or otherwise), downloaded from or otherwise provided through the Services or from the Motorgy Platform;

            •           5.3.3 no information or advice, whether written or oral or express or implied, obtained by the Enrolled Dealer from Motorgy or through or from the Services or the Motorgy Platform shall create any warranty or representation by Motorgy or any Motorgy Seller;

            •           5.3.4 it is responsible for reading the full details of a Vehicle before making an offer on the Motorgy Platform. Notwithstanding the fact that Motorgy or one of its approved representatives has appraised a Vehicle posted on the App to its best ability, Motorgy as a neutral facilitator in this mechanism has no control over the accuracy, legality, safety, truth or quality of postings;

            •           5.3.5 any purchase of a Vehicle made by it through the Services or the Motorgy Platform is made entirely and solely based on its own verifications, investigations, checks and research, and such verifications may include vehicle checking services by private third parties such as Interpol, CARFAX, RATA or HPI (or such similar organization). Motorgy shall not be liable for any damage arising out of the Enrolled Member’s verifications and investigations using a third party;

            •           5.3.6 prior to using the Services and or purchasing a Vehicle on the Motorgy Platform, the Enrolled Dealer has verified any and all information (including the price, ownership history details of any charges or liens and condition of the Vehicle) that it considers influential in its decision to purchase such Vehicle;

            •           5.3.7 not all Vehicles advertised on the Motorgy Platform are available for immediate purchase. All Vehicles are subject to acceptance of a Motorgy Seller in the case of the E-Marketplace Service or, in the case of Direct Purchases, Motorgy, agreeing to the sale of a Vehicle, and signing all required documents (including any formal documentation required by the relevant Authority and Receipt by the Motorgy Seller of a Vehicle of the Vehicle Purchase Price.

            •           5.3.8 despite Motorgy’s reasonable endeavors to provide relevant and precise information in respect of the Vehicles, errors may emerge occasionally, and Motorgy shall not be held liable whatsoever for any such errors;

            •           5.3.9 Motorgy does not, in providing the Services, make any recommendation (nor warranties) regarding any Vehicle provided for sale by Motorgy or the Motorgy Seller through the Motorgy platform;

            •           5.3.10 Motorgy reserves the right to move, edit or remove any post or listing in relation to a Vehicle or the Services;

            •           5.3.11 all and any transaction involving a Vehicle is subject to a Motorgy Seller agreeing and handing over possession of a Vehicle. Motorgy is not responsible for the actions of a Motorgy Seller and shall, under no circumstances be liable in any way, in the event a Motorgy Seller decides not to sell / transfer ownership of a Vehicle (or a Motorgy changing his mind prior to the transfer of legal ownership of a Vehicle); and

            •           5.3.12 any licenses, registration/number plates, insurances or vehicle registrations in place in respect of a Vehicle purchased by the Enrolled Dealer from a Motorgy Seller as part of E-Marketplace Service transaction shall be cancelled as soon as practicable following Delivery (as defined in Schedule 2) of such Vehicle and in any case no later than 5 days. Furthermore, the Enrolled Dealer accepts the accrual of fees or penalties on any Vehicle until such time.

5.4 In addition to these general conditions and warranties, the conditions and warranties set out in paragraph Conditions and warranties of Schedule 1 shall apply to Direct Purchases by Enrolled Dealers and the conditions and warranties set out in paragraph Conditions and warranties of Schedule 2 shall apply to Enrolled Dealers using the E-Marketplace Service.

6. EXCLUSION OF WARRANTIES

6.1 Except as otherwise provided in this Agreement, Motorgy makes no representations, warranties and conditions of any kind, whether expressed or implied, in respect of the subject matter of this Agreement (including any Vehicle), including but not limited to representations, implied warranties and conditions of merchantability, non-infringement and fitness for a particular purpose and any warranty arising out of a prior course of dealing. Any representations, warranties or conditions implied by law shall be excluded so far as permitted by applicable law.

7. REGISTRATION FEE

7.1 The Enrolled Dealer may be subject to a registration fee for the use of the Services (the “Registration Fee”) from time to time. The amount of any Registration Fee shall be notified to the Enrolled Dealer from time to time by Motorgy through an annexure in the Motorgy Platform in its absolute and sole discretion and as it sees fit.

8. VEHICLE PURCHASE

8.1 The Enrolled Dealer, upon a successful offer for a Vehicle on the Motorgy Platform, shall:

            •           8.1.1 in respect of Direct Purchases sign and enter into a Vehicle Purchase and offer Services Agreement with Motorgy.

            •           8.1.2 in respect of a transaction involving the E-Marketplace Service, sign a Vehicle Purchase and Offer Services Agreement with Motorgy, in its capacity of a Disclosed Agent of the Motorgy Seller, who is the owner of the Vehicle; and

            •           8.1.3 pay Vehicle Purchase Price of the Vehicle to Motorgy in terms and within the allotted time frame of Schedules 1 and 2,

9. DEPOSIT

9.1 The Enrolled Dealer shall be required to pay Motorgy a security Deposit. The amount of any Deposit shall be determined by Motorgy and be reflective of the amount that the Enrolled Dealer has requested should be its offering limit for potentially purchasing Vehicle(s) on the Motorgy Platform (and which amount has been approved by Motorgy) (the “Approved offering Limit”).

9.2 The Deposit Motorgy shall make each Approved offering Limit available to the Enrolled Dealer in an annexure in the Motorgy Platform at all times. The Deposit in relation to each Approved offering Limit may be amended from time to time by Motorgy in its absolute and sole discretion as it sees fit and without notice. Following any such adjustment, the Enrolled Dealer shall, where necessary, be required to increase the amount of the Deposit held by Motorgy in relation to its Motorgy Account in order to comply with the adjusted Deposit level. The Enrolled Dealer is required at all times to maintain the Deposit with Motorgy, a failure to do may mean that the Enrolled Dealer may be prevented from further use of the Services until such time as the Enrolled Dealer rectifies the deficit by increasing the amount of the Deposit to the required level, or to the suspension or termination of this Agreement and the Services.

9.3 If the Enrolled Dealer, following a successful offer for a Vehicle:

            •           9.3.1 fails to sign a Vehicle Purchase and offer Services Agreement within the allotted timeframe in respect of a Direct Purchase (and as set out in paragraph Following an Offer Acceptance (as notified through the Motorgy Platforms), the Enrolled Dealer shall within a period of no longer than 24 hours from the Offer Acceptance: of Schedule 1); and

            •           9.3.2 fails to pay the Vehicle Purchase Price within the allotted timeframe (as set out in paragraph price and payment of Schedule 1 in respect of a Direct Purchase and paragraph price and payment of Schedule 2 in respect of the E-Marketplace Service); or

            •           9.3.3 cancels the purchase of a Vehicle for any reason, Motorgy shall be able to deduct (as compensation for Services rendered) all or any amount of the Deposit and the Enrolled Dealer may be required to provide further monies to Motorgy in order to ensure it has the requisite Deposit in order to be benefit from the Services going forward.

9.4 Enrolled Dealers who have their Motorgy Account closed shall be entitled to a refund of the Deposit (subject to any deductions that Motorgy shall make pursuant to this Agreement (including any deductions pursuant to clause If the Enrolled Dealer, following a successful offer for a Vehicle: and Motorgy reserves the right to suspend or terminate a Motorgy Account of an Enrolled Dealer immediately and without notice (including a suspension or closure of its Motorgy Account and a denial of use of the Services), if any of the following occur (but such list shall not be exhaustive in nature):) within 21 days of the latest of:

            •           9.4.1 the notice of the cancellation of their Motorgy Account.

            •           9.4.2 the bank account details of the Enrolled Dealer being notified to Motorgy as the account to remit the returned Deposit.

10. SUSPENSION OR TERMINATION OF ACCOUNT AND DENIAL OF USE OF THE SERVICES

10.1 Motorgy reserves the right to decline registration of a Motorgy Account to any individual or corporate body for any reason in its sole and absolute discretion.

10.2 Motorgy reserves the right to suspend or terminate a Motorgy Account of an Enrolled Dealer immediately and without notice (including a suspension or closure of its Motorgy Account and a denial of use of the Services), if any of the following occur (but such list shall not be exhaustive in nature):

            •           10.2.1 if the Enrolled Dealer provides any information that is untrue, inaccurate, misleading, incomplete or out of date, as determined by Motorgy at its sole discretion;

            •           10.2.2 if the Enrolled Dealer does not carry out all the steps required for Registration set out in clause An Enrolled Dealer, in the course of Registration (and in all circumstances within no later than 10 days of the date of Registration), shall: of this Agreement;

            •           10.2.3 if the Enrolled Dealer repeatedly, in the sole opinion of Motorgy, fails to pay the Vehicle Purchase Price within the allotted timeframe (as set out in paragraph price and payment of Schedule 1 in respect of Direct Purchases and paragraph price and payment of Schedule 2 in respect of the E-Marketplace Service);

            •           10.2.4 if the Enrolled Dealer does not adhere to any terms for the use of the Services, the Motorgy Platform (as may be amended from time to time) or this Agreement;

            •           10.2.5 any illegal or improper use of the Motorgy Platform as deemed by Motorgy; and

            •           10.2.6 for any other reason as determined by Motorgy in its sole and absolute discretion.

10.3 Motorgy may if it so chooses, permit an Enrolled Dealer who has had its access to the Motorgy Platform terminated to re-register at a later date on such terms as they may see fit.

10.4 Any refund of a Deposit by Motorgy pursuant to the terms of this Agreement shall be in Kuwaiti Dinar (KD) only. Any bank transfer or exchange rate fees incurred in relation to a refund of a Deposit shall be borne by the Enrolled Dealer.

11. CONFIDENTIALITY

11.1 Subject to clause The Receiving Party may disclose Confidential Information to any regulatory, law enforcement agency or other third party if it is required to do so by law or court order, provided that: (i) the Receiving Party (provided that it is practical and lawful to do so) notifies the Disclosing Party in writing as soon as practicable before the disclosure; (ii) the parties use reasonable endeavors to consult with each other with a view to agreeing the timing, manner and extent of the disclosure; and (iii) the Receiving Party uses reasonable endeavors to obtain written confidentiality undertakings in its favor from the third party., a party receiving Confidential Information (“Receiving Party”) undertakes to the other (“Disclosing Party”) that it shall, and shall use all reasonable endeavors to procure that its employees, contractors and agents shall, using at least the same degree of care (but no less than a reasonable degree of care), at all times during the continuance of this Agreement and for a period of two years after its termination to:

            •           11.1.1 keep confidential all Confidential Information and to safeguard, and to prevent the disclosure of such Confidential Information;

            •           11.1.2 not disclose any Confidential Information to any other party; and

            •           11.1.3 not use any Confidential Information for any purpose other than as contemplated by this Agreement except if it is necessary:

            •           (11.1.3.a) as required by law or an order of a court of competent jurisdiction;

            •           (11.1.3.b) where the Receiving Party can show by written or other records that such Confidential Information was independently developed by or on behalf of the Receiving Party; or

            •           (11.1.3.c) where such Confidential Information is or becomes public knowledge through no fault of the Disclosing Party or its employees, contractors or agents.

11.2 The Receiving Party may disclose Confidential Information to any regulatory, law enforcement agency or other third party if it is required to do so by law or court order, provided that: (i) the Receiving Party (provided that it is practical and lawful to do so) notifies the Disclosing Party in writing as soon as practicable before the disclosure; (ii) the parties use reasonable endeavors to consult with each other with a view to agreeing the timing, manner and extent of the disclosure; and (iii) the Receiving Party uses reasonable endeavors to obtain written confidentiality undertakings in its favor from the third party.

11.3 The provisions of this clause Confidentiality shall continue in force following termination or expiry of this Agreement for any reason.

11.4 Each party acknowledges that damages alone may not be an adequate remedy in the event of a breach by the other party of the provisions of this clause Confidentiality. Accordingly, it is agreed that each party may be entitled, without proof of special damages, to seek an injunction or other interim remedy for any threatened or actual breach of this clause Confidentiality by the other party, without prejudice to any other rights and remedies, which that party may have.

12. LIMITATION OF LIABILITY AND INDEMNITY

12.1 Motorgy shall not be liable for any direct, indirect, special, incidental, consequential or exemplary damages, including but not limited to, damages for loss of profits, use, data, goodwill or other intangible losses (even if Motorgy has been made aware of the possibility of such damages), resulting from:

            •           12.1.1 the use or inability to use the Services or the Motorgy Platform by the Enrolled Dealer;

            •           12.1.2 the cost of acquisition of substitute services and goods (including Vehicles) resulting from any data, goods, services or information purchased or obtained, or transactions entered, or messages received, into, through or from the Services or the Motorgy Platform;

            •           12.1.3 unauthorized access to or alteration of the Enrolled Dealer’s transmissions or data;

            •           12.1.4 conduct of any third party in relation to the Services or the Motorgy Platform; and

            •           12.1.5 any other matter correlating to the Services or the Motorgy Platform.

12.2 The total liability of Motorgy or its parent, subsidiaries, group companies, agents, affiliates, contractors and licensors’ in relation to: (i) the use of the Services; (ii) the Motorgy Platform; and (iii) under the terms of this Agreement, shall not exceed the Approved Biding Limit or the specific transaction amount, whichever is the lower.

12.3 The Enrolled Dealer shall be responsible and liable for any claims against Motorgy from Motorgy Sellers relating to, or arising (directly or indirectly) from the negligence or willful misconduct of the Enrolled Dealer.

12.4 The Enrolled Dealer shall indemnify and keep indemnified Motorgy against all costs, claims and losses to which Motorgy may become subject to in respect of all matters for which the Enrolled Dealer is responsible or liable under this Agreement or in relation to the Services or the Motorgy Platform.

13. NON-SOLICITATION

13.1 The Enrolled Dealer shall not actively encourage Motorgy Sellers who have interacted or communicated with the Enrolled Dealer as a result of the Services (whether or not a sale of a Vehicle has been completed) to directly place orders of Vehicles with the Enrolled Dealer.

14. TERMINATION

14.1 This Agreement may be terminated by either party:

            •           14.1.1 without cause upon giving 30 days written notice to the other party; or

            •           14.1.2 immediately without notice if the other party commits any material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within seven days after being given written notice, including full particulars of the breach and requiring such breach to be remedied.

14.2 This Agreement may also be terminated by Motorgy immediately and without notice if any of those matters in clause Motorgy reserves the right to suspend or terminate a Motorgy Account of an Enrolled Dealer immediately and without notice (including a suspension or closure of its Motorgy Account and a denial of use of the Services), if any of the following occur (but such list shall not be exhaustive in nature): occur.

15. NO WAIVER

15.1 No waiver by Motorgy of any breach by the Enrolled Dealer of this Agreement shall be considered as a waiver of any subsequent breach. A waiver of any term of this Agreement shall be effective only if given in writing and signed by Motorgy

15.2 No failure or delay on the part of either party in exercising any right under this Agreement shall operate as a waiver of such right.

16. ENTIRE AGREEMENT

16.1 This Agreement constitutes the entire Agreement between the parties and supersedes, cancels and replaces any and all prior Agreements, understanding or arrangements of any nature whatsoever between the parties, whether written, oral or implied relating to the subject matter hereof and thereof.

17. SEVERABILITY

17.1 In the event that one or more of the provisions of this Agreement are found to be unlawful or otherwise unenforceable, those provisions shall be deemed severed from the remainder of this Agreement.

18. ASSIGNMENT

18.1 Except as may be agreed by the parties in writing, neither party shall assign any of its rights and/or obligations under this Agreement to any third party without the prior written consent of the other party, provided that Motorgy shall have the right to assign this Agreement to any of its affiliates.

19. NO PARTNERSHIP

19.1 Nothing contained or implied in this Agreement shall constitute or be deemed to constitute a partnership between the parties and neither party shall have any authority to bind or commit the other party in any way, except as expressly set forth herein.

20. LANGUAGE

20.1 This Agreement shall be executed in English only. If there is a conflict between the original English language and any translation of this Agreement, the original English shall prevail.

21. NOTICES

21.1 All notices under this Agreement shall be in writing and be deemed duly given:

            •           21.1.1 on the same day when delivered, if delivered by hand (including by courier or messenger) during normal business hours of the recipient;

            •           21.1.2 on the same day when sent, if transmitted by facsimile or telex, if sent during normal business hours of the recipient and a successful transmission report or return receipt is generated; or

            •           21.1.3 on acknowledgment by the recipient of the e–mail, if sent by e-mail.

21.2 In each case, notices shall be addressed to the most recent address or e-mail address notified in writing to the other party.

22. GOVERNING LAW AND JURISDICTION

22.1 This Agreement shall be governed by and construed in accordance with the law of Kuwait

22.2 In the event of any dispute, difference, claim, controversy or question among the parties, directly or indirectly, arising at any time under, out of, in connection with or in relation to this Agreement (or the subject matter of this Agreement) or any term, condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of this Agreement (a “Dispute”), the parties shall first endeavor an amicable settlement by good faith consultation and negotiation. In the event that the parties are unable to resolve the Dispute by good faith consultation and negotiation within 30 days from the date the Dispute has arisen, such Dispute shall be referred to the Kuwait Courts.

SCHEDULE 1

Direct Purchases

1.1.1 GENERAL

(1.1.1.a) The Motorgy Platform is a service that allows Enrolled Dealers to buy Vehicles directly from Motorgy and in such cases Motorgy is not acting as a “Disclosed Agent” as per clause 3.4.3 of this Agreement.

(1.1.1.b) The contract for the sale of a Vehicle shall be the Vehicle Purchase and Services Agreement entered into between the Enrolled Dealer and Motorgy (and shall be subject to the terms of this Agreement).

1.1.2 TRADING PLATFORM OFFERS

(1.1.2.a) If the Enrolled Dealer places an offer for a Vehicle using the MOTORGY Platform, the Enrolled Dealer shall have an obligation to complete the transaction and purchase that Vehicle provided Motorgy acknowledges and accepts the offer.

(1.1.2.b) An offer is placed once the [‘offer’] button is clicked on the Motorgy Platform and is acknowledged by Motorgy (whether or not the Enrolled Dealer receives such acknowledgement). Once Motorgy has acknowledged an offer, it cannot be deleted, forfeited, cancelled or retracted. Motorgy is solely responsible for determining Offer Acceptance.

(1.1.2.c) Following an Offer Acceptance (as notified through the Motorgy Platform), the Enrolled Dealer shall within a period of no longer than 24 hours from the Offer Acceptance:

            •           (1.1.2.c.i) physically inspect the Vehicle and confirm that he accepts the condition of the Vehicle; and

            •           (1.1.2.c.ii) sign a Vehicle Purchase and Offer Services Agreement in the form provided by Motorgy.

(1.1.2.d) Motorgy reserves the right to void, reject or cancel any offers for any reason at its sole and absolute discretion. Motorgy has no obligation to accept the highest offer made for any Vehicle.

(1.1.2.e) Should a dispute arise in relation to an offer, Motorgy is solely responsible for determining the outcome of the dispute (subject to clause Governing Law and of this Agreement).

(1.1.2.f) The Enrolled Dealer agrees (and shall continue for the lifetime of this Agreement) to indemnify, defend and hold harmless, Motorgy for any liability (including any potential claims by MOTORGY Sellers) arising from decisions made whilst disputes are in the process of being resolved.

(1.1.2.g) Motorgy may at its sole and absolute discretion and with or without any prior notice cancel or postpone a sale or withdraw a Vehicle from sale. Motorgy shall not be liable to the Enrolled Dealer as a result of any Vehicle retraction, sale cancellation or postponement by a Motorgy Seller or otherwise.

(1.1.2.h) Motorgy shall not be responsible for any damage to a Vehicle that is brought to the attention of Motorgy following Delivery (as defined at paragraph The Enrolled Dealer agrees that: of this Schedule).

1.1.3 CONDITIONS AND WARRANTIES

(1.1.3.a) The Enrolled Dealer, in using the Motorgy Platform, agrees that:

            •           (1.1.3.a.i) it enters into a legally binding contract to purchase a vehicle when it commits to purchasing a Vehicle (being the point where an offer from the Enrolled Dealer is acknowledged and accepted by Motorgy); and

            •           (1.1.3.a.ii) an offer made by the Enrolled Dealer on the Motorgy Platform represents a non-binding offer to buy a Vehicle and does not create a formal contract between the Enrolled Dealer and Motorgy

1.1.4 PRICE AND PAYMENT

(1.1.4.a) The Vehicle Purchase Price for any successful offer must be paid to Motorgy (in cleared funds) within a period no later than 24 hours of the Enrolled Dealer being notified by Motorgy of a successful offer. If the Enrolled Dealer fails to make such payment within the allotted timeframe (in the form and bank account stipulated by Motorgy), the Enrolled Dealer agrees and acknowledges that Motorgy shall be released from its obligation to sell the Vehicle to the Enrolled Dealer (and that Motorgy has the option of re-advertising the Vehicle on the Motorgy Platforms to other Enrolled Dealers within its network). The Enrolled Dealer agrees and acknowledges that the Vehicle remains the property of Motorgy who may sell the Vehicle to another interested party as it so chooses up until Motorgy receives full payment for the Vehicle from the Enrolled Dealer and that the Enrolled Dealer acknowledges that it will forfeit any Deposit paid to Motorgy in the process for services already rendered.

(1.1.4.b) The Enrolled Dealer accepts that it may be required to make additional payments to Motorgy for associated fees and payments for services rendered and which are associated with the sale and purchase of Vehicles; including but not limited to de-registration, transfer, purchasing, entry, sales, handling cash, releasing, storage and late payment fees and any other associated charges and fees.

(1.1.4.c) Notwithstanding the provisions of clause The Enrolled Dealer agrees that: of this Agreement, Motorgy agrees that to the extent that the Enrolled Dealer notifies Motorgy (prior to the official registration of the Vehicle into the name of the Enrolled Dealer, and no later than Delivery of the Vehicle (as specified in paragraph “Delivery” of the Vehicle shall be deemed to take place within 21 days of the Vehicle Purchase Price Receipt Date, or if such day is a business day in which private sector businesses in the Kuwait are closed, the next business day in which private sector businesses in the Kuwait are open. Between the Vehicle Purchase Price Receipt Date and the date of Delivery, where the Vehicle has an outstanding lien or charge attached to it, Motorgy shall attempt to release of discharge such outstanding lien or charge. Any Delivery shall be delayed until such lien or charge has been removed of this Schedule)) that there is a major discrepancy in respect of a Vehicle in that: (i) the mileage has been tampered with (as evidenced by a testing report); (ii) the original annual vehicle testing failure report shows that that the Vehicle has failed its inspection due to a major issue in respect of the Vehicle; or (iii) that there is engine or transmission failure with the Vehicle, then subject to the above being verified to the satisfaction of Motorgy quality inspection team (and the Enrolled Dealer completing all requested paperwork by Motorgy), Motorgy may refund the Vehicle Purchase Price to the Vehicle, provided the Vehicle is returned or is in the possession of Motorgy.

1.1.5 SALE AND DELIVERY

(1.1.5.a) “Delivery” of the Vehicle shall be deemed to take place within 21 days of the Vehicle Purchase Price Receipt Date, or if such day is a business day in which private sector businesses in the Kuwait are closed, the next business day in which private sector businesses in the Kuwait are open. Between the Vehicle Purchase Price Receipt Date and the date of Delivery, where the Vehicle has an outstanding lien or charge attached to it, Motorgy shall attempt to release of discharge such outstanding lien or charge. Any Delivery shall be delayed until such lien or charge has been removed.

(1.1.5.b) Following the notification of Delivery by Motorgy to the Enrolled Dealer, the Enrolled Dealer shall have 24 hours to collect the Vehicle (by sending an approved person to the address agreed with Motorgy, during Motorgy business hours to collect the Vehicle) before late payment or storage fees are applicable and payable by the Enrolled Dealer (details of which will be available through an annexure in the Motorgy Platform and which may be deductible from the Deposit).

SCHEDULE 2

E-Marketplace Service

1.1.1 GENERAL

(1.1.1.a) The E-Marketplace Service allows the Enrolled Dealer to make an offer for a Vehicle advertised on the Motorgy Platform which is owned by a Motorgy Seller.

(1.1.1.b) The contract for sale of a Vehicle shall be between the Enrolled Dealer and the Motorgy Seller alternatively the Enrolled Dealer and Motorgy in its capacity as a Disclosed Agent of the Motorgy Seller. In cases where Motorgy is a party to the contract, the Enrolled Dealer Acknowledges that Motorgy is acting as a Disclosed Agent on behalf of the Motorgy Seller.

(1.1.1.c) In all cases Motorgy shall accept no liability for any contract entered into between the Motorgy Seller and the Enrolled Dealer or Motorgy acting as a disclosed agent for the Motorgy Seller and the Enrolled Dealer in respect of a Vehicle.

1.1.2 E-MARKETPLACE SERVICE

(1.1.2.a) If the Enrolled Dealer places an offer for a Vehicle using the Motorgy Platform, the Enrolled Dealer shall have an obligation to complete the transaction and purchase that Vehicle provided Motorgy acknowledges and accepts the offer (on behalf of the Motorgy Seller).

(1.1.2.b) An offer is placed once the offer button is clicked on the Motorgy Platform and is acknowledged by Motorgy (whether or not the Enrolled Dealer receives such acknowledgment). Once an offer has been acknowledged by Motorgy, it cannot be deleted, forfeited, canceled or retracted. Motorgy is solely responsible for determining Offer Acceptance.

(1.1.2.c) Motorgy reserves the right to void, reject or cancel any offers for any reason at its sole and absolute discretion. Motorgy has no obligation to accept the highest offer made for any Vehicle.

(1.1.2.d) Following an Offer Acceptance, the Enrolled Dealer shall within a period of no longer than 24 hours (from the Offer Acceptance):

            •           (1.1.2.d.i) physically inspect the Vehicle and confirm that he accepts the condition of the Vehicle; and

            •           (1.1.2.d.ii) countersign a Vehicle Purchase and Services Agreement in the form provided by Motorgy.

(1.1.2.e) Should a dispute arise in relation to an offer, Motorgy is solely responsible for determining the outcome of the dispute (subject to clause Governing Law and of this Agreement).

(1.1.2.f) The Enrolled Dealer agrees (and shall continue for the lifetime of this Agreement) to indemnify, defend and hold harmless, Motorgy for any liability (including any claims by Motorgy Sellers) arising from decisions made whilst disputes are in the process of being resolved.

(1.1.2.g) Motorgy may at its sole and absolute discretion and with or without any prior notice cancel or postpone a sale or withdraw a Vehicle from sale. Motorgy shall not be liable to the Enrolled Dealer as a result of any Vehicle retraction, sale cancellation or postponement by a Motorgy Seller or otherwise.

(1.1.2.h) Motorgy shall not be responsible for any damage to a Vehicle that is brought to the attention of Motorgy following Delivery (as defined at paragraph “Delivery” of the Vehicle shall be deemed to take place within 4 days of the Vehicle Purchase Price Receipt Date, or if such day is a business day in which private sector businesses in Kuwait are closed, the next business day in which private sector businesses in Kuwait are open. Between the Vehicle Purchase Price Receipt Date and the date of Delivery, where the Vehicle has an outstanding lien or charge attached to it, Motorgy shall attempt to release of discharge such outstanding lien or charge. Any Delivery shall be delayed until such lien or charge has been removed. of this Schedule).

1.1.3 E-MARKETPLACE SERVICE CONDITIONS AND WARRANTIES

(1.1.3.a) In using the E-Marketplace Service, the Enrolled Dealer agrees that:

            •           (1.1.3.a.i) an offer made by the Enrolled Dealer represents an option i.e. non-binding offer, for Motorgy and/or the Seller to sell the Vehicle, at the price offered by the Enrolled Dealer and does not create a formal contract between the Enrolled Dealer and Motorgy, or the Motorgy Seller

            •           (1.1.3.a.ii) it enters into a legally binding obligation to purchase a vehicle when it commits to purchasing a Vehicle (being the point where an offer from the Enrolled Dealer is acknowledged); and

1.1.4 PRICE AND PAYMENT

(1.1.4.a) The Vehicle Purchase Price for any successful offer must be paid to Motorgy (in cleared funds) within a period no later than 24 hours of the Enrolled Dealer being notified by Motorgy of a successful offer. If the Enrolled Dealer fails to make such payment within the allotted timeframe (in the form and bank account stipulated by Motorgy), the Enrolled Dealer agrees and acknowledges that Motorgy has the option of re-advertising the Vehicle on the Motorgy Platform to other Enrolled Dealers within its network up until Motorgy receives full payment for the Vehicle from the Enrolled Dealer.

(1.1.4.b) The Enrolled Dealer acknowledges that whenever it purchases a Vehicle using the E-Marketplace Service, that Motorgy fee shall be an amount equal to the difference between the amount paid by the Enrolled Dealer for a Vehicle and the amount received by the Motorgy Seller for that Vehicle (the “E-Marketplace or Service Fee”).

(1.1.4.c) The Enrolled Dealer acknowledges that the E-Marketplace Fee for Motorgy may vary from Vehicle to Vehicle and that the amount of any E-Marketplace Fee shall be at the discretion of Motorgy at all times.

(1.1.4.d) The Enrolled Dealer accepts that it may be required to make payments to Motorgy for associated fees and payments for services rendered and which are associated with the sale and purchase of Vehicles; including but not limited to de-registration, transfer, purchasing, entry, sales, handling cash, releasing, storage and late payment fees and any other associated charges and fees.

(1.1.4.e) Notwithstanding the provisions of clause The Enrolled Dealer agrees that: of this Agreement, Motorgy agrees that to the extent that the Enrolled Dealer notifies Motorgy (prior to the official registration of the Vehicle into the name of the Enrolled Dealer, and no later than Delivery of the Vehicle (as specified in paragraph “Delivery” of the Vehicle shall be deemed to take place within 4 days of the Vehicle Purchase Price Receipt Date, or if such day is a business day in which private sector businesses in the Kuwait are closed, the next business day in which private sector businesses in Kuwait are open. Between the Vehicle Purchase Price Receipt Date and the date of Delivery, where the Vehicle has an outstanding lien or charge attached to it, Motorgy shall attempt to release of discharge such outstanding lien or charge. Any Delivery shall be delayed until such lien or charge has been removed. of this Schedule)) that there is a major discrepancy in respect of a Vehicle in that: (i) the mileage has been tampered with (as evidenced by a testing report); (ii) the original annual Vehicle testing failure report shows that that the Vehicle has failed its inspection due to a major issue in respect of the Vehicle; or (iii) that there is engine or transmission failure with the Vehicle, then subject to the above being verified to the satisfaction of Motorgy quality inspection team (and the Enrolled Dealer completing all requested paperwork by Motorgy), Motorgy may refund the Vehicle Purchase Price to the Vehicle, provided the Vehicle is returned or is in the possession of Motorgy.

1.1.5 SALE AND DELIVERY

1.1 “Delivery” of the Vehicle shall be deemed to take place within 2 days of the Vehicle Purchase Price Receipt Date, or if such day is a business day in which private sector businesses in Kuwait are closed, the next business day in which private sector businesses in Kuwait are open. Between the Vehicle Purchase Price Receipt Date and the date of Delivery, where the Vehicle has an outstanding lien or charge attached to it, Motorgy shall attempt to release or discharge such outstanding lien or charge. Any Delivery shall be delayed until such lien or charge has been removed.

            •           (1.1.5.a) Following the notification of Delivery by Motorgy to the Enrolled Dealer, the Enrolled Dealer shall have 24 hours to collect the Vehicle (by sending an approved person to the address agreed with Motorgy or the Motorgy Seller, during Motorgy business hours to collect the Vehicle) before late payment or storage fees are applicable and payable by the Enrolled Dealer (details of which will be available through an annexure in the Motorgy Platform and such amounts may be deductible from the Deposit).