PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CAR DEALER AGREES TO THESE TERMS AND CONDITIONS.
These Car Dealer Terms of Service constitute an agreement (this “Agreement”) by and between Accel Group Inc, a Delaware Company whose principal place of business is Pasadena, California (“Vendor”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Car Dealer”). This Agreement is effective as of the date Car Dealer clicks “Accepted and Agreed To” (the “Effective Date”). Car Dealer’s use of and Vendor’s provision of Vendor’s System (as defined below in Section 1.13) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CAR DEALER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CAR DEALER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “Customer Data” means data in electronic form input or collected through the Services by or from Car Dealer or the Users including Inventory Information (as defined below) and excluding any Potential Purchaser Data.
1.2. “Derived Data” means (i) any data that is derived by Vendor while processing Customer Data and (ii) Customer Data that is aggregated and anonymized or sufficiently different from Customer Data such that Customer Data cannot be identified from analysis or further processing of such derived data.
1.3. “Documentation” means Vendor’s standard documentation related to use of the Services.
1.4. “DMV Requirements” means all requirements set by the departments of motor vehicles and any relevant competent federal or state agencies that apply to Car Dealer, its activity, the Services or the sale of cars to Potential Purchasers.
1.5. “Feedback” means any suggestion, idea, enhancement request, or recommendation for improving or otherwise modifying any of Vendor’s Services provided by the Car Dealer or a User, excluding any Customer Data and any Confidential Information of Car Dealer. 1.6. “Inventory Information Provider” means https://www.homenetauto.com/ or any equivalent service approved by Vendor, which allows Car Dealer to share real-time Inventory Information (as defined below) with Vendor.
1.7. “Marks” means trademarks, service marks, logos, symbols, and trade dress.
1.8. “Potential Purchaser” means a potential purchaser who uses the System to acquire a car, whether or not a purchase transaction is completed following such use.
1.9. “Potential Purchaser Data” means data in electronic form input or collected through the Services by Car Dealer including without limitation information related to Potential Purchasers.
1.10. “Primary Contact” means an employee designated by the Car Dealer who shall act as the sole point of contact with the Vendor.
1.11. “Services” means services using the System as detailed in the SOW and the SLA, including any improvements, customizations or developments thereto, but for purposes of clarification, excluding any Customer Data and any Confidential Information of Car Dealer.
1.12. “SLA” means Vendor’s standard service level and support terms, available at service-level-agreement
1.13. “SOW” means the Vendor’s statement of work executed by the parties, which includes the description of the Services, as well as the applicable payment schedule.
1.14. “System” means Vendor’s online marketplace for new cars including any improvements, customizations or developments. 1.15. “Term” is defined in Section 11.1 below.
1.16. “Usage Data” means any data reflecting access or use of the Services by the Car Dealer or a User, to the exclusion of any Customer Data.
1.17. “User” means any individual who uses the Services on Car Dealer’s behalf or through Car Dealer’s account or passwords, whether authorized or not.
1.18. “Vendor Associates” means Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.
2.1. Services. During the Term, Vendor will provide Car Dealer with the Services.
2.2. Car Dealer’s Duties
(a) Car Dealer will reasonably cooperate with Vendor in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Vendor may reasonably request to assist in its provision of the Services.
(b) In order for Vendor to deliver the Services, Car Dealer hereby agrees to:
(i) Sign up to an Inventory Information Provider service and maintain such subscription during the Term;
(ii) Provide to Vendor electronic access to its inventory of cars (on a real-time basis) (the “Inventory Information”) through an Inventory Information Provider;
(iii) Hold any item ordered on the System by a Potential Purchaser for three consecutive days from the date of such order and refrain from selling it to any one other than such Potential Purchaser during that time;
(iv) Upon completion of a sale to a Potential Purchaser, deduct an amount equal to the Service Fee specified by Vendor from the transaction amount payable to Car Dealer by Potential Purchaser and notify Vendor of the completion of the transaction;
(v) Refrain from (i) completing any transaction with a Potential Purchaser introduced through the System without informing Vendor, or (ii) contacting any Potential Purchaser introduced through the System other than through the System for a period of no less than 14 days from such Potential Purchaser cancelling its order on the System;
(vi) “Accept” or “Reject” an offer made by a Potential Purchaser within 2 business days, otherwise such offer shall become void and no longer accessible to the Potential Purchaser on the System;
(vii) Commit to selling a car to a Potential Purchaser at no higher than the offer price accepted by Car Dealer through the System;
(viii) Commit to adopting fair and non-deceptive practices with Potential Purchaser and refrain from upselling to a Potential Purchaser if Potential Purchaser expresses his/her intention not to pursue any purchase of any add-on products;
(ix) Accept trade-ins by Potential Purchasers and value any traded cars reasonably in accordance with the ranges set by Kelley Blue Book, Edmunds, the National Appraisal Guide or any other reputable valuation guidelines approved by Vendor;
(x) Offer to Potential Purchasers the best original equipment manufacturer (OEM) rates for financing and car leasing purposes; and
(xi) Prominently affix on all cars sold through the Services sticker decals “Sold by Car Bevy” as specified by the Parties in the SOW.
2.3. Deceptive Practices; Compliance With Laws: Car Dealer will immediately change or discontinue any representation or business practice found to be misleading or deceptive by Potential Purchaser or Vendor immediately upon notice from Vendor. Referral Partner shall comply with all applicable state, federal, and international laws, rules, and regulations applicable.
2.4. No-Exclusivity: This Agreement does not grant any exclusivity rights to any of the Parties.
2.5. Documentation: Car Dealer may reproduce and use the Documentation solely as necessary to support Users’ use of the Services.
2.6. Service Suspensions. Vendor shall use commercially reasonable best efforts to prevent any interruption to the Services. Notwithstanding the foregoing, Vendor may reasonably suspend Car Dealer’s access to the Services: (i) for maintenance, or (ii) while Car Dealer is in breach of this Agreement. Vendor will use commercially reasonable best efforts to give Car Dealer prior written notice of suspension and to minimize any interference with Car Dealer’s full use of the Services.
2.7. Service Levels and Support. Vendor shall provide the Services and support as specified in the SLA.
2.8. Service Revisions. Vendor may revise the features and functions of the Services at any time, provided that if any such revision to the Services materially reduces the features or functionality used by Car Dealer, Car Dealer may within 30 days of notice of the revision terminate this Agreement without cause.
2.9. Primary Contact. Car Dealer shall designate a Primary Contact, who shall be responsible for reporting any failure under Section 2.5. or more generally for reporting any issue in connection with theServices or the Agreement. Car Dealer may change the Primary Contact by providing written notice to Vendor
3.1. Fees. Car Dealer shall pay Vendor the fees set forth in the SOW (the “Fees”) in U.S dollars. Vendor’s invoices will be emailed to the Car Dealer and are due within 30 days of the date they are emailed.
3.2. Taxes. Amounts due under this Agreement are payable to Vendor without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Car Dealer shall separately pay Vendor the withheld or deducted amount. However, the prior two sentences do not apply to Vendor’s payroll taxes or taxes based on Vendor’s net income.
4. CUSTOMER DATA & PRIVACY.
4.1. Risk of Exposure and Data Security. Car Dealer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, Car Dealer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.2. Data Accuracy. Vendor will have no responsibility or liability for the accuracy, reliability and appropriateness of data uploaded by Car Dealer or its Users, including without limitation Customer Data. 4.3. Derived and Usage Data. Notwithstanding the provisions above of this Article 4, Vendor shall be the owner of any Derived Data and Usage Data and shall have the right to use, reproduce, sell, publicize, or otherwise exploit Derived Data and Usage Data in any way, in its sole discretion.
5. CAR DEALER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Car Dealer shall not and will not permit any third party to: (a) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services; (b) provide System passwords or other log-in information to any third party; (c) share non-public Services features or content with any third party; (d) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services; (e) engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler; or (f) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the System or any related software, documentation or data related to the System (provided, that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the System; except as expressly permitted herein. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Vendor may suspend Car Dealer’s access to the Services without advanced notice, in addition to such other remedies as Vendor may have. Vendor shall be free to take any legally allowable action it sees fit against Car Dealer or any User for violating this Section 5.1.
5.2. Unauthorized Access. Car Dealer shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Car Dealer shall notify Vendor immediately of any known or suspected unauthorized use of the or breach of its security and shall use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the Services, Car Dealer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4. User Access. Car Dealer is responsible and liable for: (a) Users’ use of the Services, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Car Dealer; and (b) any use of the Services through Car Dealer’s account, whether authorized or unauthorized.
5.5. Inventory Information: Car Dealer is responsible and liable for any information, particularly the accuracy of such information, provided by an Inventory Information Provider to Vendor.
6. IP & FEEDBACK.
6.1. IP Rights to the Services and Car Dealer’s Feedback. Vendor alone (and its licensors, where applicable) retains all right, title, and interest in and to the Services, the Feedback, the Derived Data and the Usage Data, including without limitation all software used to provide the Services, the Feedback, the Derived Data and the Usage Data and all graphics, user interfaces, logos, and trademarks reproduced through the Services. Car Dealer recognizes that the Services, the Feedback, the Derived Data and the Usage Data, their components and the Feedback are protected by copyright and other laws and agrees not to copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
6.2. License to Use the Services. Vendor hereby grants Car Dealer during the Term, a limited, non-exclusive, non-transferable (other than pursuant to Section 12.4 of this Agreement), non-sublicensable license to use the Services in compliance with the terms of this Agreement.
6.3. IP Rights to Customer Data. Car Dealer and its licensors shall (and Car Dealer hereby represents and warrants that they do) have and retain all right, title, and interest in and to Customer Data.
6.4. IP Rights to Potential Purchaser Data. Vendor shall have and retain all right, title, and interest in and to Potential Purchaser Data.
6.5. License to Use Customer Data. Car Dealer, on behalf of itself and its suppliers and licensors (as applicable) hereby grants Vendor during the Term a limited, non-exclusive, non-transferable (other than pursuant to Section 12.4 of this Agreement), non-sublicensable (other than to subcontractors bound by confidentiality obligations at least as restrictive as those set forth herein, for whose actions Vendor remains responsible) license to use, view, copy, reformat, distribute, display and analyze the Customer Data solely for purposes of providing and improving the Services.
6.6. Limited Right to Use Potential Purchaser Data. Vendor hereby grants Car Dealer a limited right to use Potential Purchaser Data for the sole purpose of completing a car purchase transaction. Car Dealer shall delete such Potential Purchaser Data if so requested by the Vendor or Potential Purchaser and agrees that such Potential Purchaser Data shall be treated as Confidential Information (as defined below) for all purposes. Except as set forth in this Section 6.6, Car Dealer shall have no right to use, reproduce, sell, publicize, or otherwise exploit Potential Purchaser Data.
6.7. Car Dealer Marks; Marketing. Car Dealer hereby grants to Vendor a worldwide, non-exclusive, non-transferable license to use and display all Marks provided by Car Dealer to Vendor for inclusion in the Services solely for the purpose of Vendor’s provision of the Services. Vendor is permitted to disclose that Car Dealer is one of its customers to any third-party at its sole discretion, and, to place Car Dealer’s name and logo on its website and marketing materials for this purpose, subject to compliance with any logo or branding guidelines provided by Car Dealer.
6.8. Vendor Marks; Marketing. Vendor hereby grants to Car Dealer a worldwide, non-exclusive, non-transferable license to use and display all Marks provided by Vendor to Car Dealer for the purpose of affixing such marks on the cars marketed by the Car Dealer through the Services pursuant to Section 2.2. (b) hereof, as selected by Vendor from time to time. Car Dealer’s hereby agrees to place Car Dealer’s name and logo on its website and marketing materials for this purpose, subject to compliance with any logo or branding guidelines provided by Vendor.
7. CONFIDENTIAL INFORMATION
7.1. “Confidential Information” refers to any confidential information shared by one Party with the other in connection with its business or clients and reasonably regarded as being of a confidential nature. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the receiving Party’s possession at the time of disclosure; (ii) is independently developed by the receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the receiving Party’s improper action or inaction; or (iv) is approved for release in writing by the disclosing Party. Car Dealer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.
7.2. Nondisclosure. Neither Party will disclose any Confidential Information to any third party other than to its employees or contractors in performance of this Agreement, without the express written consent of the other Party. Each Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Each Party shall promptly notify the other Party of any misuse or misappropriation of Confidential Information that comes to its attention and take reasonable steps to contain and mitigate against the harm caused by such breach.
7.3. Use of Confidential Information. Either Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The receiving Party shall give the disclosing Party prompt notice of any such legal or governmental demand, to the extent allowable by law, and reasonably cooperate with the disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the disclosing Party’s expense.
7.4. Injunction. The Parties agree that breach of this Article 7 would cause the non-breaching Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.5. Termination & Return. Upon termination of this Agreement, and subject to any contrary obligations under applicable laws, the Parties shall return or destroy all copies of Confidential Information of the other Party in their possession.
7.6. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), the Parties are on notice and acknowledge that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1. From Vendor. Vendor represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) the performance of its obligations and/or exercise of its rights hereunder will not violate or conflict with (1) any agreements, contracts or other arrangements to which it is a Party, or (2) any applicable law and/or regulation; (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained, (d) it will provide the Services in a professional manner consistent with the levels of performance that would be reasonably expected of similar companies; and (e) it will comply with all applicable laws and regulations.
8.2. From Car Dealer. Car Dealer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) the performance of its obligations and/or exercise of its rights hereunder; (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained; (d) it will comply with all applicable laws and regulations including the DMV Requirements; (e) it shall refrain from engaging in any deceptive or unfair selling practices through the Services; (f) all information entered by it on the System or communicated to a Potential Purchaser (including car specifications and price and Inventory Information) shall be up to date, complete, reliable and accurate; and (g) it will not, directly or indirectly make or give, offer or promise to make or give, or authorize the making or giving of any payment, gift, or other thing of value or advantage to any person or entity for the purpose of wrongfully influencing decisions or for any other purpose that is otherwise unlawful.
8.3. Warranty Disclaimers. Except to the extent set forth in the Agreement, CAR DEALER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE, (c) VENDOR DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL COMPLY WITH THE DMV REQUIREMENTS OR ANY OTHER APPLICABLE REGULATORY OR LEGAL REQUIREMENTS. AS BETWEEN VENDOR AND CAR DEALER, CAR DEALER AGREES TO SOLE RESPONSIBILITY FOR ANY COMPLIANCE WITH DMV REQUIREMENTS AND ANY OTHER APPLICABLE LEGAL OR REGULATORY REQUIREMENTS.
9.1. Car Dealer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates against any third party claim, suit, or proceeding arising out of or related to Car Dealer’s alleged or actual use of, misuse of, or failure to use the Services, including without limitation: (a) claims by Users, Car Dealer’s employees, or Car Dealer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data or Potential Purchaser Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by the Car Dealer Marks, written material, images, logos or other content provided by Car Dealer to Vendor through the Services, including without limitation by Customer Data; (d) claims that use of the Services through Car Dealer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; (e) claims by any Potential Purchaser in connection with any use of the Services including without limitation claims resulting from the sale of any defective or deceptive product or any violation of any representation or warranty granted by the Car Dealer to the Potential Purchaser; (f) any breach of Section 8.2 (e) by the Car Dealer ; (g) any claim that the Car Dealer has violated the DMV Requirements and (h) the completion of any transaction with a Potential Purchaser without notifying Vendor or otherwise in breach of Section 2.2. The foregoing obligations do not apply to the extent such claims are caused by Vendor’s gross negligence, fraud or intentional misconduct. Car Dealer’s obligations set forth in this Section 9.1 include retention and payment of attorneys and payment of court costs, as well as settlement at Car Dealer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
9.2. Vendor shall defend, indemnify, and hold harmless Car Dealer against third party claim, suit, or proceeding arising out of or related to any infringement or violation of intellectual property right by Vendor’s Services provided Vendor is promptly notified of any and all threats, claims, proceedings related thereto and given reasonable assistance and sole control over the defense and settlement thereof. Vendor’s obligations set forth in this Section 9.2 include retention and payment of reasonable attorney fees and payment of court costs, as well as settlement at Vendor’s expense and payment of judgments. The foregoing obligations do not apply (i) to the extent such claims are caused by Car Dealer’s gross negligence, fraud or intentional misconduct, or (ii) with respect to portions or components of the Services (a) not created by or on behalf of Vendor, (b) resulting in whole or in part from Vendor’s compliance with Car Dealer’s specifications, if such claim, suit or proceeding would have been avoided without such compliance with Car Dealer specifications, (c) that are modified by Car Dealer or any third party not under the control of Vendor, where the alleged infringement arises out of such modification, (d) combined with other products, processes or materials not approved in writing by Vendor (including, without limitation, Customer Data) where the alleged infringement arises out of such combination, (e) where Car Dealer continues allegedly infringing activity after being notified in writing thereof or after being informed in writing of modifications that would have avoided the alleged infringement, and/or (f) where Car Dealer’s use of the Services is in violation of this Agreement.
10. LIMITATION OF LIABILITY.
10.1. Dollar Cap. VENDOR’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO VENDOR IN THE PREVIOUS TWELVE-MONTH PERIOD UNDER SECTION 3 HEREOF
10.2. Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL VENDOR BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CAR DEALER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 10 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. Term & Termination.
11.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for twelve (12) months (the “Initial Term”). Thereafter, the Term will renew for successive twelve (12) month periods, unless either Party refuses such renewal by written notice thirty (30) or more days before the renewal date.
11.2. Termination for Cause. Either Party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in thirty (30) days unless the other Party first cures such breach, or effective immediately if the breach is not subject to cure. For purposes of clarification, Car Dealer’s breach of Sections 2.2. (b) and 8.2 shall constitute a material breach of the Agreement.
11.3. Effects of Termination. Upon termination of this Agreement:
(a) Car Dealer shall cease all use of the Services and the Potential Purchaser Data and delete, destroy, or return all copies of the Documentation and the Potential Purchaser Data in its possession or control;
(b) all rights and licenses granted hereunder to Car Dealer will immediately cease; and
(c) all rights and licenses granted hereunder to Vendor will immediately cease.
11.4. Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Car Dealer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. Vendor may send notices pursuant to this Agreement to Car Dealer’s email contact points provided by Car Dealer, and such notices will be deemed received 24 hours after they are sent. Car Dealer may send notices pursuant to this Agreement to Vendor’s email contact point: email@example.com, and such notices will be deemed received 24 hours after they are sent. Moreover, each Party may send notices in writing to the address of the other Party or such other addresses as such Party may designate by like notice from time to time and such notice will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed, if transmitted by facsimile, and upon receipt, if sent by certified or registered mail (return receipt requested), or postage prepaid.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that a Party may, upon prior written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement to any of its affiliates or to an entity with or into which it is merged or consolidated or to which it sells its stock or other equity interests or all or substantially all of its assets or to the surviving entity of any similar transaction. Any other assignment or transfer in violation of this Agreement will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties’ permitted successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.8. Conflicts. In the event of any conflict between this Agreement, the SLA and the SOW or any agreement related hereto, the terms of this Agreement will govern unless such conflicting terms are explicitly superseded in the SLA, SOW or such other agreement
12.9. Technology Export. Car Dealer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Car Dealer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12.11. Amendment. Vendor may amend this Agreement from time to time by posting an amended version at its Website and sending Car Dealer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Car Dealer first gives Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Car Dealer’s next Term following the Proposed Amendment Date (unless either party first terminates this Agreement pursuant to Article 11, Term & Termination). Car Dealer’s continued use of the Service following the effective date of an amendment will confirm Car Dealer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.