1. 20 GROUP DEALER TRADES SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, throughout the Term (as hereinafter defined), Company will use commercially reasonable efforts to provide Dealer then-current information though an on-line portal (the “Portal”) regarding the availability of inventory from the different feeds supplied by the inventory management systems of each other dealership which has executed an agreement with Company substantially similar to this Agreement (collectively, “Dealerships”). As part of the registration process for the Portal, Dealer will identify an administrative user name and password for Dealer’s account. Company reserves the right to refuse registration of, or cancel accounts it deems inappropriate for non-performance.
1.2 Subject to the terms and conditions of this Agreement, throughout the Term, Dealer will use commercially reasonable efforts to provide Company with a feed supplied by Dealer’s inventory management system indicating its then-current available inventory (“Dealer’s Inventory”), which information Company shall be entitled to post on the Portal for access by other Dealerships.
1.3 Subject to the terms and conditions hereof, throughout the Term, as part of the Services Company will provide Dealer with reasonable technical support in accordance with Company’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Dealer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Dealer represents, covenants, and warrants that the information that Dealer provides pursuant to Section 1.2 above shall be accurate in all material respects and that Dealer will use the Services only for the purpose for which the Portal was created and in accordance with all applicable laws and regulations. Dealer hereby agrees to indemnify and hold harmless Company and its software developers / suppliers, members, managers, officers, affiliates, representatives, contractors and employees against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) relating to any claim or action that arises from an alleged violation of the foregoing or otherwise from Dealer’s use of Services or from or relating to any of Dealer’s Inventory and any inventory of any other Dealership procured by Dealer via the Portal. Although Company has no obligation to monitor Dealer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
2.3 Dealer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like. Dealer shall also be responsible for maintaining the security of the Dealer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Dealer account.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Dealer understands and agrees that information regarding Dealer’s Inventory will be made available to other Dealerships via the Portal. Except as set forth in the preceding sentence, each party agrees (i) to take reasonable precautions to protect any business, technical or financial information of the other party to which such party becomes aware in connection with this Agreement or the performance of the Services, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such information. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed relating to the Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.2 Notwithstanding anything to the contrary, Company shall have the right to analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies and Company will be free (during the Term) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes relating to the Services. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Dealer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term as specified in the Order Form or then current renewal term, upon thirty (30) days prior notice to Dealer (which may be sent by email). If Dealer believes that Company has billed Dealer incorrectly, Dealer must contact Company no later than 60 days after the date of the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to Company’s dealer support department.
4.2 Company may choose to bill through an invoice, in which case full payment for invoices issued in any given month must be received by Company within fourteen (14) days of the invoice date. Unpaid amounts will lead to Service cancellation.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY REGARDING ANY INFORMATION PROVIDED BY ANY DEALERSHIP THAT IS POSTED ON THE PORTAL OR AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND THE INFORMATION POSTED ON THE PORTAL ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, COMPANY AND ITS SOFTWARE DEVELOPERS / SUPPLIERS, MEMBERS, MANAGERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE: (A) WITH RESPECT TO ANY INFORMATION PROVIDED BY ANY DEALERSHIP THAT IS POSTED ON THE PORTAL OR FOR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY; (B) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (C) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (D) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY DEALER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 1 MONTH PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Dealer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created because of this Agreement and Dealer does not have any authority of any kind to bind Company in any respect whatsoever. All notices under this Agreement will be in writing to the address set forth in the order form to which these Terms and Conditions are attached, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of State of Delaware, without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties hereby agree to arbitrate any and all disputes arising under or related to this Agreement, including disputes related to the interpretation of this Agreement (each a “Dispute”), under the Delaware Rapid Arbitration Act, 10 Del. C. § 5801, et seq. (the “DRAA”). The parties agree to take all steps necessary or advisable to submit any Dispute that cannot be resolved by the parties for arbitration under the DRAA (the “Arbitration”) in accordance with this Section 8, and each party represents and warrants that it is not a “consumer” as such term is defined in 6 Del. C. § 2731. By executing this Agreement, (i) each party hereby waives, and acknowledges and agrees that it shall be deemed to have waived, any objection to the application of the procedures set forth in the DRAA, (ii) consents to the procedures set forth in the DRAA, and (iii) acknowledges and agrees that it has chosen freely to waive the matters set forth in subsections (b) and (c) of Section 5803 of the DRAA. In connection therewith, each party understands and agrees that it shall raise no objection to the submission of the Dispute to Arbitration in accordance with this Section 8 and that it waives any right to lay claim to jurisdiction in any venue and any and all rights to have the Dispute decided by a jury. The Arbitration shall take place in Wilmington, Delaware, or such other location as the parties and the Arbitrator may agree. The parties agree to submit to the personal jurisdiction of the courts of competent jurisdiction in any applicable court within the State of Delaware to the extent reasonably necessary for any dispute to be fully and finally resolved pursuant to the DRAA. The parties further agree that the delivery of any process in accordance with notice provisions of this Section 8 shall constitute valid and lawful process against such party. Moreover, to the extent necessary or appropriate to establish personal jurisdiction over a party hereto, such party hereby irrevocably appoints and constitutes the Secretary of State of the State of Delaware as the person’s agent for the acceptance of legal process in any connection with the Arbitration and any civil action against such party arising in connection with this Agreement, and any process when so served shall have the same legal force and validity as if served upon such party personally within the State of Delaware. Dealer agrees to reasonably cooperate with Company to serve as a reference account upon request.
