TERMS
AND CONDITIONS FOR DEALERSCLOUD SERVICES
Last
Modified: December 1, 2021
These General Terms and
Conditions (the “General Terms”), along with any applicable Service Terms (see
“Service Terms” below) and any applicable Confirmation of Services
(collectively, the “Agreement”) governs your access and use of the DEALERSCLOUD
Services (“Services”, as defined below), provided by DEALERSCLOUD CORP. or an
affiliated company (“DEALERSCLOUD”, “we” or “our”). By accessing or using the
Services, you represent and warrant that (a) you have the power to bind the
entity subscribing to the Services (the “Subscriber”, “you” or “your”), (b)
have read, understand agree to be bound by this Agreement and all terms
incorporated by reference. If you do not agree to this Agreement, you are not
authorized to access or use the Services.
1. Use of the Services
1. Generally. You may access and use
the Services in accordance with this Agreement. Service Terms apply to certain
Services. You will comply with the terms of this Agreement and all applicable
laws, rules and regulations applicable to your use of the Services.
2. Acceptable Use Policy
1. You may not reverse
engineer, decompile, disassemble, or work around technical limitations in a
Service, except to the extent applicable law permits it despite these
limitations.
2. You may not disable, tamper
with, or otherwise attempt to circumvent any billing mechanism that meters your
use of the Services.
3. You may not rent, lease,
lend, resell, transfer, or host the Service, or any portion thereof, to or for
third parties except as expressly permitted in this Agreement.
4. You may not circumvent or
endanger the operation or security of any Service.
5. You may not use any of the
Services in connection with any form of spam, unsolicited mail, fraud, scam,
phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise
engage in unethical marketing or advertising.
6. You may not take any action
that imposes an unreasonable or disproportionately large load on the
infrastructure of the Services or DEALERSCLOUD’s systems or networks connected
to the Services, or otherwise interfere with or disrupt the operation of any of
the Services, or the servers or networks that host them or make them available,
or disobey any requirements, procedures, policies, or regulations of such
servers or networks.
7. You may not access or use
the Services for benchmarking or similar competitive analysis purposes or in
order to build a competitive product or service.
2. Authorized Users. You may permit Authorized
Users to use the Service. You control access by Authorized Users, and you are
responsible for their use of the Services in accordance with this Agreement.
For example, you will ensure Authorized Users comply with the Acceptable Use
Policy, Service Terms, confidentiality, privacy, and security terms of the
Agreement.
3. Responsibility for your
Accounts. Except to the extent caused by our breach of this Agreement:
1. you are responsible for all
activities that occur under your account, regardless of whether the activities
are authorized by you or undertaken by you, your employees or a third party
(including your contractors, agents or Authorized Users), and
2. DEALERSCLOUD is not
responsible for unauthorized access to your account. You are responsible for
maintaining the confidentiality of any non-public authentication credentials
associated with your use of the Services. Authentication credentials for the
Services may not be used by more than one individual. Authentication
credentials may not be sold, transferred, or sublicensed to any other entity or
person except as expressly permitted in this Agreement. You must promptly
notify our customer support team about any actual or possible misuse of your
accounts or authentication credentials or any security incident related to the
Services.
2. Customer and Personal Data
1. Customer Data. You are solely
responsible for the content of all Customer Data. You will secure and maintain
all rights in Customer Data necessary for us to provide the Services to you
without violating the rights of any third party or otherwise obligating DEALERSCLOUD
to you or to any third party. DEALERSCLOUD does not and will not assume any
obligations with respect to Customer Data or to your use of the Services other
than as expressly set forth in this Agreement or as required by applicable law.
You grant DEALERSCLOUD a nonexclusive right to process Customer Data to provide
and support the Services.
2. Personal Data. You will collect and
maintain all Personal Data in compliance with this Agreement and applicable
data privacy and protection laws. You will not include in Personal Data any
personal information covered by data privacy and protection laws from
jurisdictions outside of the United States.
3. Nonpublic Personal Data. In the course of
accessing or using the Services, you may receive nonpublic personal information
(i.e., any and all personal financial and/or health information) associated
with the completion of a transaction authorized by the consumer including, but
not limited to, (a) collection of delinquent accounts, (b) employment
application information verification, (c) property leasing application
information, and (d) insurance application information verification under the
Fair Credit Reporting Act (15 U.S.C. Sections 1681 et seq.). You will limit the
use of such nonpublic information solely to the completion of the
above-described transaction. You must hold such nonpublic information in the
strictest confidence, and you must not use this information for any purpose
other than the performance of your official duties and obligations hereunder.
Such nonpublic information must be held in the strictest confidence by the
Subscriber and its agents, employees, affiliates, and representatives and must
not be used for any purpose other than the performance of the duties and
obligations hereunder. Subscriber must establish and adopt appropriate procedures
to protect the privacy, confidentiality, and security of all such information,
requirements of the Gramm-Leach-Bliley Act, 15 U.S.C. Section 6801 et. seq.
(2000) (the “GLB Act”) and any other applicable privacy laws or regulations.
4. Access to Customer Data.
a. During the Subscription
Term. You can
access Customer Data at any time. You may export and retrieve Customer Data in
a standard format supported by the Service’s self-service export tools. Export
and retrieval may be subject to technical limitations, in which case DEALERSCLOUD
and Subscriber will find a reasonable method to provide Subscriber access to
Customer Data.
b. At the end of the
Subscription Term. DEALERSCLOUD reserves the right to delete the Customer Data
remaining on servers hosting the Service unless applicable law requires
retention. Retained data is subject to the confidentiality provisions of this
Agreement.
5. Public Customer Data. You hereby authorize DEALERSCLOUD
to use and share with third parties, your publicly available inventory data for
the purpose of analysis and advertising whether received from your inventory
data feed, entered directly in a Service, received from a third party, or
collected from a public website. Publicly available inventory data includes
information customarily found on vehicle listing websites, e.g., year, make,
model, trim, price, equipment, seller’s note, mileage, etc., but will not
include dealer’s cost. You can revoke or modify this consent at any time by
contacting your DEALERSCLOUD support representative at 703-870-3964
3. Modifications
1. To the Services. DEALERSCLOUD may make
commercially reasonable updates to the Services from time to time. If DEALERSCLOUD
makes a material change to the Services, DEALERSCLOUD will inform Subscriber,
if Subscriber has registered with DEALERSCLOUD to be informed about such
change.
2. To the Terms. DEALERSCLOUD may make
changes to this Agreement, including pricing, General Terms, and Service Terms
(collectively “Terms”) from time to time. Unless otherwise noted by DEALERSCLOUD,
material changes to the Terms will become effective 30 days after they are
posted, except if the changes apply to new functionality, in which case, they
will be effective immediately. If you do not agree to the revised Terms, please
stop using the Services. DEALERSCLOUD will post any modification to this
Agreement to the Terms URL.
4. Fees and Payment
1. Service Fees. Your use of the Services
shall be subject to the fees set forth in the Confirmation of Services. DEALERSCLOUD
calculates and bills fees and charges monthly, unless otherwise specified in
the Confirmation of Services. Payment is due on the Due Date. DEALERSCLOUD may
increase or add new fees and charges for any existing Services you are using by
giving you at least 30 days’ prior notice.
2. Taxes. You are responsible for
any Taxes, and you will pay DEALERSCLOUD for the Services without any reduction
for Taxes. If DEALERSCLOUD is obligated to collect or pay Taxes, the Taxes will
be invoiced to you, unless you provide DEALERSCLOUD with a timely and valid tax
exemption certificate authorized by the appropriate taxing authority. In some
states the sales tax is due on the total purchase price at the time of sale and
must be invoiced and collected at the time of the sale. If you are required by
law to withhold any Taxes from your payments to DEALERSCLOUD, you must provide DEALERSCLOUD
with an official tax receipt or other appropriate documentation to support such
withholding.
3. Late Payments and Failure
to Pay. If DEALERSCLOUD
receives payment from Subscriber more than 10 days after the Due Date, DEALERSCLOUD
may impose a late fee of $30.00. If any check or ACH is returned for
insufficient funds, DEALERSCLOUD may impose a processing charge of $30.00 plus
applicable taxes and any late fees. If Subscriber has not paid an invoice for
more than 90 days, DEALERSCLOUD may refer collection of the unpaid amount to an
attorney or collections agency. If DEALERSCLOUD refers Subscriber’s unpaid
invoices to an attorney or collections agency, Subscriber shall pay all
reasonable attorney’s fees or collections agency fees. If Subscriber requires a
payment plan, Subscriber must contact DEALERSCLOUD before the Due Date. If
Subscriber requests a payment plan after the Due Date, DEALERSCLOUD may assess
late fees, attorney’s fees, or any applicable combination of the two. Nothing
in this section requires DEALERSCLOUD to accept any payment plan.
4. Invoice Disputes and
Refunds. Any
invoice disputes must be submitted prior to the Due Date. If the parties
determine that certain billing inaccuracies are attributable to DEALERSCLOUD, DEALERSCLOUD
will not issue a corrected invoice, but will instead issue a credit memo
specifying the incorrect amount in the affected invoice. If the disputed
invoice has not yet been paid, DEALERSCLOUD will apply the credit memo amount
to the disputed invoice and Subscriber will be responsible for paying the
resulting net balance due on that invoice. To the fullest extent permitted by
law, Subscriber waives all claims relating to Fees unless claimed within sixty
days after charged (this does not affect any Subscriber rights with its credit
card issuer). Refunds (if any) are at the discretion of DEALERSCLOUD and will
only be in the form of credit for Services. If Subscriber initiates a
chargeback on a payment that is rightfully due, DEALERSCLOUD may impose a
charge of $25.00 plus applicable taxes and any late fees. Nothing in this
Agreement obligates DEALERSCLOUD to extend credit to any party.
5. Payment Information. For your convenience, you
may elect to have DEALERSCLOUD, together with its payment processing provider,
retain your payment information including, but not limited to, your billing
name, address, telephone number, credit card/debit card/charge card information
or numbers, bank or financial institution information, and applicable
expiration dates in a Payment Card Industry Data Security Standard compliant
manner, and permit such information to be used in future transactions with DEALERSCLOUD
that you authorize. You are responsible for adding, updating, maintaining,
deleting, and verifying the accuracy of any payment information that you ask DEALERSCLOUD
to retain for you. You are responsible for any transactions rejected due to
erroneous or outdated payment information including applicable fees and
interest under Section 4.3. You also agree that DEALERSCLOUD will not be liable
for any use, misuse, lost, stolen or incorrect account or payment information.
Regarding payments made by credit card, DEALERSCLOUD reserves the right to only
accept certain card providers and may modify the list of such providers,
including no longer accepting any credit card payments of any kind from any
card providers, at any time without prior notice to you. If you provide DEALERSCLOUD
your credit card information, you authorize DEALERSCLOUD to automatically
charge your provided credit card for all charges on your account, and DEALERSCLOUD
will automatically charge your credit card for all such charges on the
applicable billing due date shown on your billing statement. If DEALERSCLOUD is
unable to charge your provided credit card for any reason, the provisions of
Section 4.3 apply on the amount due until that amount is paid and, as a result,
your account may be subject to suspension under Section 5.1(c) or termination.
5. Temporary Suspension
1. Generally. DEALERSCLOUD may suspend
your or any Authorized User’s right to access or use any portion or all of the
Services immediately upon notice if we determine:
a. your or an Authorized
User’s use of a Service (i) poses a security risk to the Service or any third
party, (ii) could adversely impact our systems, the Service or the systems or
Content of any other DEALERSCLOUD customer, (iii) could subject DEALERSCLOUD,
our affiliates, licensors, or any third party to liability, or (iv) could be
fraudulent;
b. you are, or any Authorized
User is, in breach of this Agreement, (including failing to respond in a timely
manner to a compliance or regulatory audit or documentation request);
c. you are in breach of your
payment obligations under this Agreement; or
d. you have ceased to operate
in the ordinary course, made an assignment for the benefit of creditors or
similar disposition of your assets, or become the subject of any bankruptcy,
reorganization, liquidation, dissolution or similar proceeding.
2. Effect of Suspension. If DEALERSCLOUD suspends
your right to access or use any portion or all of the Services:
a. you remain responsible for
all fees and charges you incur during the period of suspension; and
b. you will not be entitled to
any service credits for any period of suspension.
6. Term and Termination
1. Term. The Subscription Term is
as stated in the Confirmation of Services and shall automatically renew in
periods equal to the first Subscription Term unless otherwise stated in the
Confirmation of Services.
2. Termination.
a. Subscriber may terminate
this Agreement at any time by delivering 30 days advanced notice to DEALERSCLOUD
a written notice of cancellation. The effective date of such termination shall
be at the expiration of the Subscription Term.
b. DEALERSCLOUD may terminate
this Agreement at any time by delivering a written notice to Subscriber in
accordance with this Section 13.1. The effective date of such termination shall
be the date the notice is deemed delivered under this Section 13.1.
3. Effect of Termination on
Payment.
a. For termination by
Subscriber, Subscriber will remain responsible for all fees due through the end
of the Subscription Term and all transaction charges incurred, with no refund
for a partially unused Subscription Term.
b. For termination by DEALERSCLOUD,
Subscriber will remain responsible for all fees due through the date of
termination and all transaction charges incurred.
4. Effect of Termination or
Expiration. Upon the effective date of termination or expiration of the
Agreement:
a. Subscriber’s right to use
the Service and all DEALERSCLOUD Confidential Information will end, and
b. Confidential Information of
the disclosing party will be returned or destroyed as required by the
Agreement, and
c. termination or expiration
of the Agreement does not affect other agreements between the parties, and
d. Sections 1.4, 4, 6.3, 6.4,
7, 8, 9, 10, 11, 12, and 13 will continue to apply in accordance with their
terms, and
e. during the thirty (30) days
following the effective date of termination or expiration we will allow you to
retrieve your Customer Data from the Services only if you have paid all amounts
due under this Agreement.
7. Proprietary Rights.
1. Your Content. Except as provided in
this Section 7, we obtain no rights under this Agreement from you or your
licensors to Customer Data. You consent to DEALERSCLOUD’s use of Customer Data
to provide the Services to you and any Authorized Users.
2. Services License. DEALERSCLOUD or its
licensors own all right, title, and interest in and to the Services, and all
related technology and intellectual property rights. Subject to the terms of
this Agreement, DEALERSCLOUD grants you a limited, revocable, non-exclusive,
non-sublicensable, non-transferrable license to do the following:
a. access and use the Services
solely in accordance with this Agreement; and
b. copy and use the Service
Content solely in connection with your permitted use of the Services. Except as
provided in this Section 7.2, you obtain no rights under this Agreement from DEALERSCLOUD,
its affiliates or its licensors to the Services, including any related
intellectual property rights. Some Service Content and Third-Party Content may
be provided to you under a separate license. In the event of a conflict between
this Agreement and any separate license, the separate license will prevail with
respect to the Service Content or Third-Party Content that is the subject of
such separate license.
3. Suggestions. If you provide any
Suggestions to DEALERSCLOUD or its affiliates, DEALERSCLOUD and its affiliates
will be entitled to use the Suggestions without restriction. You hereby
irrevocably assign to us all right, title, and interest in and to the
Suggestions and agree to provide us any assistance we require to document,
perfect, and maintain our rights in the Suggestions.
8. Confidential Information
1. Obligations. The recipient will not
disclose the Confidential Information, except to Affiliates, employees, agents
or professional advisors who need to know it and who have agreed in writing (or
in the case of professional advisors are otherwise bound) to keep it
confidential. The recipient will ensure that those people and entities use the
received Confidential Information only to exercise rights and fulfill
obligations under this Agreement, while using reasonable care to keep it
confidential.
2. Required Disclosure. Notwithstanding any
provision to the contrary in this Agreement, the recipient may also disclose
Confidential Information to the extent required by applicable Legal Process;
provided that the recipient uses commercially reasonable efforts to:
a. promptly notify the other
party of such disclosure before disclosing; and
b. comply with the other
party’s reasonable requests regarding its efforts to oppose the disclosure.
Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if
the recipient determines that complying with (i) and (ii) could: (a) result in
a violation of Legal Process; (b) obstruct a governmental investigation; and/or
(c) lead to death or serious physical harm to an individual. As between the
parties, Subscriber is responsible for responding to all third-party requests
concerning its use and Authorized Users’ use of the Services.
9. Representations and Warranties
1. Each party represents and
warrants that:
a. it has full power and
authority to enter into the Agreement; and
b. it will comply with all
laws and regulations applicable to its provision, or use, of the Services, as
applicable.
10. Indemnification
1. By Subscriber. You will defend,
indemnify, and hold harmless DEALERSCLOUD, its affiliates, successors or
assigns, and licensors, and each of their respective employees, officers,
directors, agents, and representatives from and against any Losses arising out
of or relating to any third-party claim concerning:
a. Your or any of your
Authorized Users’ use of the Services (including any activities under
Subscriber’s Account and use by Subscriber’s employees, personnel, and agents);
b. breach of this Agreement or
any of Subscriber’s representations, warranties, or covenants by Subscriber,
its officers, directors, subcontractors, contractors, agents, employees, or
Authorized Users;
c. violation of applicable law
by Subscriber or its Authorized Users, including, without limitation, the
Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328
(1990);
d. Customer Data, including
but not limited to action alleging that Customer Data violates any consumer
protection or any other applicable law or regulation, and action alleging that
Customer Data violates a third party’s intellectual property, contractual or
other proprietary rights, including claims of piracy, plagiarism or idea
misappropriation;
e. a dispute between you and
any Authorized User or third party.
2. By DEALERSCLOUD. DEALERSCLOUD will defend
and indemnify Subscriber against any Losses arising out of or relating to any
third-party claim alleging that Subscriber’s use of DEALERSCLOUD’s Service or
Service Data infringes or misappropriates the third party’s patent, copyright,
trade secret, or trademark.
3. Exclusions. This Section 10 will not
apply to the extent the underlying allegation arises from:
a. the indemnified party’s
breach of this Agreement;
b. modifications to the
indemnifying party’s technology by anyone other than the indemnifying party;
c. combination of the
indemnifying party’s technology or content with materials not provided by the
indemnifying party;
d. use of non-current or
unsupported versions of the Services;
e. Subscriber’s use of a DEALERSCLOUD
trademark without DEALERSCLOUD’s express written consent;
f. Subscriber’s use of the
Service or Service Data after DEALERSCLOUD notifies Subscriber to stop due to a
third-party claim;
4. Counsel and Defense. For all claims arising
under this Section 10 DEALERSCLOUD shall have the right to employ its own
counsel and direct the defense and/or litigation, including make any decisions
regarding strategy and settlement; provided that for claims arising under
Section 10.1, DEALERSCLOUD shall consult with Subscriber in good faith regarding
the selection of counsel.
5. Obligations.
a. Each party must notify the
other promptly of a claim under this Section.
b. The indemnified party must
give reasonable help in defending the claim.
c. The indemnifying party will
(i) reimburse the other for reasonable out-of-pocket expenses that it incurs in
giving that help and (ii) pay the amount of any resulting adverse final
judgment or settlement. The parties’ respective rights to defense and payment
of judgments (or settlement the other consents to) under this Section 10 are in
lieu of any common law or statutory indemnification rights or analogous rights,
and each party waives such common law or statutory rights.
11. Disclaimer
1. THE SERVICES ARE PROVIDED
“AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY
RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, DEALERSCLOUD AND ITS
AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR THE
THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR
EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF
ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES, SERVICE
CONTENT OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF
HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE
LOST OR ALTERED.
12. Limitation of Liability
1. DEALERSCLOUD AND IS
AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR
LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA),
EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER,
NEITHER DEALERSCLOUD NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE
FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A)
YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I)
TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE
SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY
UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR
ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C)
ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS
AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED
ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE
TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT
OBLIGATIONS UNDER SECTION 10, DEALERSCLOUD AND ITS AFFILIATES’ AND LICENSORS’
AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU
ACTUALLY PAY DEALERSCLOUD UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE
TO THE CLAIM DURING THE 6 (SIX) MONTHS BEFORE THE LIABILITY AROSE. THE
LIMITATIONS IN THIS SECTION 12 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW.
13. Miscellaneous
1. Notice. Notices must be in
writing, must be delivered to such other address as a party may designate by
notice to the other party, and will be deemed given on the date of delivery
when delivered by a nationally recognized overnight courier or by certified
mail, return receipt requested. Notice shall also be deemed to have been
delivered immediately upon the transmission of electronic mail to the following
e-mail addresses:
a. If to DEALERSCLOUD: supportATdealerscloudDOTcom
b. If to Subscriber: the
e-mail address on file with DEALERSCLOUD.
2. Force Majeure. Neither party will be
liable to the other for any delay or interruption in performance as to any
obligation hereunder resulting from governmental emergency orders, judicial or
governmental action, emergency regulations, sabotage, riots, vandalism, labor
strikes or disputes, acts of God, fires, electrical failure, major computer
hardware or software failures, equipment delivery delays, acts of third
parties, or delays or interruptions in performance beyond its reasonable
control.
3. Entire Agreement. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter contained herein and may not be amended except by a written agreement
that acknowledges modification of this Agreement, and that is signed by an
authorized representative of Subscriber and of DEALERSCLOUD, or as otherwise
expressly provided herein. Each party has had an opportunity to have legal
counsel in the course of negotiation of this Agreement. Therefore, this
Agreement will not be more strongly construed against either party, regardless
of who is more responsible for its preparation.
4. Severability. If any part of this
Agreement is found to be illegal or unenforceable, then that part will be
curtailed only to the extent necessary to make it, and the remainder of the
Agreement, legal and enforceable.
5. No Waiver. A waiver of any provision
of this Agreement, or any claimed breach thereof, shall not be deemed a waiver
of any other provision or breach.
6. Governing Law. This agreement shall be
subject to and interpreted under the laws of the state of VA applicable to
agreements wholly to be performed therein as well as the Copyright law or other
law or laws of the United States, where applicable.
7. Attorney’s Fees. In any action under this
Agreement, the prevailing party shall be entitled to attorney’s fees and court
costs.
8. Independent Contractor. Nothing in this Agreement
creates a joint venture, partnership, principal-agent or mutual agency relationship
between the parties. No party has any right or power under this Agreement to
create any obligation, expressed or implied, on behalf of the other party.
9. Headings. The titles or captions
used in this Agreement are for convenience only and will not be used to
construe or interpret any provision hereof.
14. Disputes
1. Generally. Most Subscriber concerns
can be resolved by contacting a DEALERSCLOUD representative or DEALERSCLOUD
support. If DEALERSCLOUD is unable to resolve your concerns and a dispute
remains between Subscriber and DEALERSCLOUD, it will be resolved under the
terms of this Section 14.
2. Arbitration. SUBSCRIBER AND DEALERSCLOUD
AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN THE PARTIES IN INDIVIDUAL
BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING
OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THIS
AGREEMENT AND ANY THE SERVICE TERMS THEREOF; OR (iii) SUBSCRIBER’S USE OR
SUBSCRIBER’S AUTHORIZED USER’S USE OF THE SERVICES, YOUR ACCOUNT OR THE
SERVICES. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT,
TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL
THEORY.
3. Limitations. This Section does not
apply to the following types of claims or disputes, which Subscriber or DEALERSCLOUD
may bring in any court with jurisdiction: (i) claims of infringement or other
misuse of intellectual property rights, including such claims seeking
injunctive relief; and (ii) claims related to or arising from any alleged
unauthorized use, piracy, or theft.
4. Waiver of Right to Sue. An arbitration is a
proceeding before a neutral arbitrator, instead of before a judge or jury.
Arbitration is less formal than a lawsuit in court and provides more limited
discovery. It follows different rules than court proceedings and is subject to
very limited review by courts. The arbitrator will issue a written decision and
provide a statement of reasons if requested by either party. SUBSCRIBER
UNDERSTANDS THAT SUBSCRIBER AND DEALERSCLOUD ARE GIVING UP THE RIGHT TO SUE IN
COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY.
5. Prior Informal Resolution. Subscriber and DEALERSCLOUD
agree to make reasonable, good faith efforts to informally resolve any dispute
before initiating arbitration. A party who intends to seek arbitration must
first send the other a written notice that describes the nature and basis of
the claim or dispute and sets forth the relief sought. If Subscriber and DEALERSCLOUD
do not reach an agreement to resolve that claim or dispute within 30 days after
the notice is received, Subscriber or DEALERSCLOUD may commence an arbitration.
Written notice to DEALERSCLOUD must be sent as specified above.
6. Arbitration Rules.
a. The Federal Arbitration Act
applies to this Section. The arbitration will be governed by the Commercial
Arbitration Rules of the American Arbitration Association (“AAA”) and, where
applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes,
as modified by this Agreement, both of which are available at
http://www.adr.org. The arbitrator is bound by the terms of this Agreement.
b. The AAA will administer the
arbitration. It may be conducted through the submission of documents, by phone,
or in person in the county where you live or at another mutually agreed
location.
c. The arbitration costs,
including arbitrator compensation, will be split between Subscriber and DEALERSCLOUD
according to the AAA Commercial Arbitration Rules and the AAA’s Supplementary
Procedures for Consumer Related Disputes, if applicable. If the arbitrator
determines Subscriber’s claims are frivolous or costs are unreasonable as
determined by the arbitrator, Subscriber agrees to reimburse DEALERSCLOUD for DEALERSCLOUD’s
share of the arbitration costs, including the arbitrator compensation, at the
conclusion of the proceeding. The prevailing party shall be entitled to
attorney’s fees.
7. Class Action Waiver.
a. SUBSCRIBER AND DEALERSCLOUD
AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE
ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA’s PROCEDURES OR
RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR
OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S
INDIVIDUAL CLAIM. SUBSCRIBER AND DEALERSCLOUD ALSO AGREE NOT TO SEEK TO COMBINE
ANY ACTION OR ARBITRATION WITH ANY OTHER ACTION OR ARBITRATION WITHOUT THE
CONSENT OF ALL PARTIES TO THIS AGREEMENT AND ALL OTHER ACTIONS OR ARBITRATIONS.
b. If the agreement in this
Section not to bring or participate in a class or representative action,
private attorney general action or collective arbitration should be found
illegal or unenforceable, Subscriber and DEALERSCLOUD agree that it shall not
be severable, that this entire Section shall be unenforceable and any claim or
dispute would be resolved in court and not in collective arbitration.
c. Notwithstanding this
Section, Subscriber has the right to litigate any dispute in small claims
court, if all the requirements of the small claims court, including any
limitations on jurisdiction and the amount at issue in the dispute, are
satisfied.
d. This Section shall apply to
the maximum extent permitted by applicable law. If the laws of Subscriber’s
jurisdiction prohibit the application of some or all of the provisions of this
Section, such provisions will not apply to Subscriber.
