DealersGear Customer Terms and Conditions
This document sets forth the terms and conditions pursuant to which DealersGear ("we," "our" or "DealersGear.com") provides advertising, marketing and other products and services to dealerships, and is referred to below as this "Agreement." When a dealership (referred to below as "you," "your" or "Dealership") submits to DealersGear any order form, or an on-line sign-up form, for advertising, marketing or other products and/or services and we accept it (an "Order Form"), this Agreement will govern the provision by DealersGear of the products and/or services specified in that Order Form.
- Order Forms: The specific advertising, marketing or other products and/or services to be provided by DealersGear (collectively, the "Services"), and the fees for the Services (the "Fees"), are set forth in one or more Order Forms, and this Agreement is incorporated into and made a part of each Order Form. In the event of any conflict between the terms of this Agreement and the terms of an Order Form, the terms of that Order Form will control. Hand-written modifications to an Order Form will not be effective or binding on DealersGear unless initialed or otherwise approved in writing by legal counsel for DealersGear. From time to time, DealersGear may elect to reflect in the form of an email or other electronic communication to Dealership (i) the Services that we will be providing, and/or (ii) Dealership's request for a modification of the terms of an Order Form (including a modification to the Fees for a Service). Upon the acknowledgement of, or consent by, Dealership to the provision of those Services, or to such modification, that electronic communication will be deemed an "Order Form" (or a modification to a prior Order Form) for purposes of this Agreement.
- Payment Terms: Dealership agrees to pay the Fees to DealersGear on or before the date such Fees are due. For billing purposes only, Fees payable under each Order Form may be treated by DealersGear as independent of each other. DealersGear may change the Fees for any Service at any time on not less than 30 days' prior notice to Dealership.
- Term and Termination of Order Forms: The term of each Order Form will commence on the actual launch date for the Services specified in that Order Form, and will continue until terminated by one of the parties. If, after an Order Form is accepted by DealersGear, the launch date does not occur within a reasonable time, we may withdraw that acceptance and cancel that Order Form. Should either party choose to terminate the term of an Order Form or any Service specified in an Order Form, such party may do so by giving not less than 30 days' prior notice to the other party in the manner set forth in Section 12(unless otherwise noted in the Order Form). In addition, DealersGear has the right to terminate the term of an Order Form (or, at our election, suspend rendering any or all of the Services specified in that Order Form) immediately in the event: (i) you fail to pay any Fees when due, (ii) you otherwise breach any provision of this Agreement, that Order Form or any document referred to in that Order Form, (iii) any of the Services specified in that Order Form are deemed by DealersGear or alleged or determined by any governmental authority to violate any law, rule or regulation, or (iv) DealersGear determines in the exercise of its reasonable discretion that you have abused any of the Services specified in that Order Form. In the event of termination of an Order Form by either party, all Fees owed under that Order Form will become immediately due and payable. Since DealersGear offers many of the Services as a "package" of services, if either party terminates the term of any Order Form or any Service specified in an Order Form, other than in connection with your termination of all Services, you may not be entitled to any reduction in the total amount of the Fees. Since this Agreement covers all Order Forms, and contains provisions that are intended by the parties to survive the termination of all Order Forms, any provisions of this Agreement that by their nature ought to survive the Order Forms will continue in full force and effect and will not be subject to termination by the parties, even if an Order Form is terminated or if this Agreement is terminated or purported to be terminated.
- Dealer-Supplied Information: You acknowledge and agree that (i) you are responsible for the accuracy, completeness, clarity, applicability, compliance with law, rule and regulation, and non-violation of any third party rights (collectively "Compliance") of all vehicle, dealership and other information, and/or creative content or components thereof, provided or made available to DealersGear (by you, your agents and/or third-party service providers) for use by DealersGear in connection with the advertising and promotion of you or your vehicles, including any disclaimers, conditions or other consumer disclosures to be displayed in such advertising and promotions (collectively, your "Information"), and (ii) you are responsible for updating in a timely manner any of your Information that ceases to be in Compliance. In addition, you acknowledge and agree that (a) DealersGear does not have the ability or obligation to determine the Compliance of your Information and, accordingly, you will bear the consequences to the extent that any of your Information is not in Compliance, and (b) DealersGear does not have the ability or obligation to determine whether the photos provided or made available for a particular vehicle you offer for sale are of that vehicle or are "stock" photos and, therefore, does not label as "stock" in any vehicle advertisement any of the photos provided or made available to DealersGear; and, accordingly, you will bear the consequences to the extent that any of such photos are not in Compliance. In some states, the advertised price for a vehicle is required to include any dealer document/processing/vehicle preparation fee or similar charge. You are responsible for assuring that the advertised price you provide to DealersGear for display includes all such charges. Without limiting the foregoing, you agree that (i) DealersGear may obtain your inventory listings and related inventory data from you, your agents and/or your third-party service providers, including your "Dealership System" (as defined in Section 5) and (ii) DealersGear may use and provide such data to the persons and entities that assist us in providing the Services, including in connection with advertising and marketing services provided on behalf of DealersGear on third-party properties (for example, Facebook), and to other "Service Providers" (as defined in Section 5).
- Sharing of Data and Information: DealersGear may, in the course of performing the Services, obtain data relating to you and your business. You agree that (i) DealersGear may use and provide such data to our Service Providers, and (ii) DealersGear may provide such data (excluding, however, any such data that is generally regarded as "personally identifiable information") to other third parties in the conduct of our business. If one of your stores holds a franchise to sell new vehicles, DealersGear may share data and information it obtains from you, as well as any other information concerning your websites or customers that DealersGear may have or obtain — with the manufacturer or distributor who granted you that franchise and with any of their affiliates and their respective agents and third-party service providers. In addition, if you engage or have engaged a third party to operate or manage any of your websites, DealersGear may share any such data and information with that third party and, at Dealership's request, with other third parties engaged by Dealership. You consent to the sharing of data and information as set forth in this Section.
- Consent to Recording of Calls: From time to time DealersGear may engage Service Providers to provide a toll-free number that DealersGear may display for purposes of inducing calls to you. These Service Providers may, at DealersGear direction and for its benefit, track and make a recording of those calls. Those recordings may be used for quality assurance, training and related purposes. When recording of such a call is activated, each caller to you will be notified of the fact that recording is occurring (unless you expressly request that these Service Providers not include such a notification, in which case you agree to yourself provide that notification). In addition, from time to time, DealersGear may arrange for the recording of calls made by you to our staff, or by our staff to your personnel, also to be used for quality assurance, training and related purposes. When recording of such a call is activated for calls to DealersGear, each caller to DealersGear will be notified of the fact that recording is occurring. However, for calls made by DealersGear to your personnel, we will be relying on your notice to your personnel as provided in the following paragraph. You agree that (i) you will provide written notice to all "Call Handlers" (that is, all employees or agents who work for you and who may make such recorded calls, or who may receive and answer such recorded calls) that calls from DealersGear may be monitored and recorded and may be stored and disclosed to third parties, (ii) you will obtain the prior, express written consent of all Call Handlers to such recording before they are allowed to answer such recorded calls, and (iii) you will be solely responsible for providing and maintaining such notices and consents.
- DealersGear Products: If we list your vehicles on Facebook Marketplace, you agree to, and will comply with, the Facebook Commerce Product Merchant Agreement (currently available at www.facebook.com/legal/commerce_product_merchant_agreement). The Marketplace Posting service, together with certain other products and services, generate vehicle "Leads" (that is, expressions of interest by a consumer in a specific vehicle identified by year/make/model or by vehicle identification number that are submitted to you. DealersGear is not obligated to provide you with a minimum number of Leads. DealersGear does not guarantee any sales as a result of your use of the DealersGear products and your obligation to pay the Fees is unconditional and not dependent on any such sales. You agree not to resell or otherwise transfer to another dealership or any other person or entity any Leads (or any data included in any Leads) delivered to you by DealersGear products.
- Dealership License: Dealership hereby grants to DealersGear a non-exclusive, worldwide, royalty-free license to use, copy, encode, store, archive, distribute, transmit and publicly display Dealership logos, marks, trademarks and/or other Dealership intellectual property (the "Marks") provided to and used by DealersGear in performing the Services. DealersGear is further granted the right to sub-license the Marks to its Service Providers. Such right to use the Marks will be limited to those uses reasonably required to perform the Services. Dealership further grants DealersGear all additional rights and licenses (and the right to sub-license such rights and licenses) reasonably required to perform the Services.
- Warranties/ Limitation of Liability/Indemnification: You represent and warrant that you have all licenses required by applicable laws, rules and regulations to operate your automobile dealership, and possess the required franchise(s) to represent the new vehicle brands you sell, and that you are, and will remain, in compliance with all applicable laws, rules and regulations in your regular business and the use of the Services.
DEALERSGEAR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND LICENSES PROVIDED HEREUNDER AND ALL WARRANTIES INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT WILL DEALERSGEAR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (AND WHETHER OR NOT WE OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF USE OF MONEY, LOSS OF DATA OR INTERRUPTION IN ITS USE OR AVAILABILITY, STOPPAGE OF WORK, IMPAIRMENT OF ASSETS OR OTHERWISE ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHERWISE, AND WHETHER BASED ON ANY PROVISION OF THIS AGREEMENT, ANY ORDER FORM OR ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE SERVICES OR ANY TRANSACTION PERFORMED OR UNDERTAKEN UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM. IF YOU SUBSCRIBE FOR DEALERSGEAR SERVICE, THE PRICES WE DISPLAY FOR VEHICLES ADVERTISED BY YOU ARE RECEIVED BY INTERMEDIARIES WHO TRANSMIT DATA FROM OR ON BEHALF OF YOU TO US, AND BY THE VEHICLE MANUFACTURERS AND OTHER THIRD PARTIES; WE ARE NOT RESPONSIBLE FOR ANY ERRORS IN SUCH DATA OR RULES, OR FOR ANY ERRORS THAT MAY OCCUR IN THE MANNER IN WHICH WE APPLY SUCH DATA AND RULES TO DETERMINE THE VEHICLE PRICES DISPLAYED. DEALERSGEAR AGGREGATE LIABILITY FOR ACTUAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY DEALERSHIP DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. You agree to indemnify and hold harmless DealersGear and its affiliates, and their respective officers, directors, shareholders, members, employees and agents (each of the foregoing, a "Covered Party") from and against any and all liabilities, losses, damages, judgments, costs and expenses (including reasonable attorneys' fees and costs of any
investigation or action related thereto) incurred by, or imposed on or asserted against, a Covered Party in connection with a claim, suit or other proceeding by a third party arising out of or relating to (i) your performance under this Agreement or any Order Form, (ii) your breach of this Agreement or any Order Form, including the breach of any representation or warranty, (iii) any claim by a Customer relating to the purchase, lease or servicing of any vehicle or other product or service from you, (iv) any error, omission, misconduct or negligence by you or your franchisees, or any of their officers, directors, shareholders, members, employees or agents, or (v) your failure to comply with any law, rule or regulation applicable to your business or your performance hereunder.
- Governing Law; Venue: This Agreement and the Order Form(s) will be governed by and construed and enforced in accordance with the laws of the State of California applicable to agreements made and to be performed in such state. Each party hereby consents and agrees that the state or federal courts located in the county of Los Angeles, State of California will have exclusive jurisdiction to hear and determine any and all claims or disputes between or among the parties pertaining to this Agreement or any Order Form or to any matter arising out of or relating thereto; provided, however, that nothing in this Agreement or any Order Form will be deemed or operate to preclude DealersGear from bringing suit or taking other legal action in any other jurisdiction, or to enforce a judgment or other court order in favor of DealersGear. Each party expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and each party hereby waives any objection that such party may have based upon lack of personal jurisdiction, improper venue or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Each party hereby waives personal service of the summons, complaint or other process issued in any such action or suit and agrees that service of such summons, complaint or other process may be made by overnight courier or delivery service addressed to such party (i) if to Dealership, at the address set forth in an Order Form; and (ii) if to DealersGear, at 10440 Central Ave Suit B, Montclair, CA 91763, Attention: legal; and that service so made will be deemed completed upon such party's actual receipt or refusal thereof.
- Severability: In the event any provision of this Agreement becomes or is determined by a court of competent jurisdiction to be illegal, invalid, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, will be severed from this Agreement; and the balance of this Agreement will be enforceable in accordance with its terms.
- Notices: All notices and other communications called for or contemplated by this Agreement or any Order Form and sent by Dealership to DealersGear will be sent by email to [email protected], and will be deemed given to DealersGear when actually received at that email address. All notices and other communications called for or contemplated by this Agreement or any Order Form and sent by DealersGear to Dealership will be deemed given to Dealership (i) when delivered to Dealership by hand or by overnight courier or delivery service, or (ii) when sent to dealership by email. Dealership's contact information for all notices is as set forth on the corresponding Order Form.
- Miscellaneous: The individual who signs an Order Form on behalf of Dealership represents to DealersGear that he/she is fully authorized to sign that Order Form and to bind Dealership to the obligations described in that Order Form and in this Agreement. This Agreement and the Order Form(s) constitute the entire agreement between the parties regarding the subject matter hereof, and will supersede all prior understandings and documents in connection with such subject matter, and may not be amended except by an instrument in writing signed on behalf of both you and DealersGear or email as described in Section 1. No waiver of any provision of this Agreement or any Order Form will be effective unless set forth in an instrument in writing signed by the party to be bound thereby or an email from an authorized representative of such party. No delay by either party in exercising any right, power or remedy under this Agreement or any Order Form will operate as a waiver thereof, nor will any single or partial exercise of any such right, power or remedy preclude any other or further exercise of that or any other right, power or remedy. No provision of this Agreement or any Order Form will be construed in favor of or against either of the parties by reason of the extent to which either such party or its counsel participated in the drafting hereof. The word "including" will be deemed to be followed by the phrase "without limitation" or "but not limited to." Section headings have been inserted for convenience of reference only, are not a part of this Agreement or any Order Form and will not be used in construing this Agreement or any Order Form. You agree to pay any tax (other than income or any equivalent tax) imposed by any governmental taxing authority as a result of the rendering of the Services. DealersGear and Dealership are independent contractors in connection with this Agreement and the Order Form(s), and nothing will be deemed to make them partners or joint venturers. This Agreement and the Order Form(s) are non-transferable and non-assignable by you without prior written approval by DealersGear. This Agreement and the Order Form(s) and the rights and duties hereunder and thereunder may be assigned by DealersGear to any of its affiliates without notice to you. We may engage third-party service providers selected by DealersGear in its sole discretion, including affiliates of DealersGear, to assist in performing the Services. The provision by DealersGear of any of the Services does not constitute a license to use any of the data displayed in or by those Services.