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.
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.
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