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DealersGear Terms and Conditions

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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. 

  1. 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. 
  2. 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.   
  3. 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. 
  4. 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). 
  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.
  6. 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. 
  7. 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. 
  8. 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.   
  9. 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. 

  1. 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. 
  2. 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.   
  3. 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. 
  4. 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. 

 

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