MASTER SERVICE AGREEMENT
GENERAL TERMS AND CONDITIONS
1. License Granted. Service Provider and its licensors hereby agree to provide Dealer access to the selected Licensed Services for the specified dealership location(s)/rooftop(s) herein, under a non-exclusive, non-transferable, non-sublicensable, revocable license during the term of this Agreement, in accordance with and subject to the terms of this Agreement.
2. Connection to Licensed Services. The terms and conditions of this Agreement are effective as of the date of Dealer’s signature herein (“Effective Date”). The products and services that Dealer subscribes to in any Service Order are collectively referred to herein as the “Licensed Services”. Service Provider and its licensors will provide connection access to the selected Licensed Services by providing Dealer’s users with access accounts accessible by internet using a browser, subject to Service Provider’s evaluation and approval of Dealer’s technical infrastructure and internet connectivity. The Licensed Services may require the use of technology such as, without limitation, communication through telephone, electronic mail, File Transfer Protocol, and/or other methods of delivery. Dealer acknowledges that use of the Licensed Services depends on Dealer’s use of a browser via the Internet service provider of Dealer’s choice (must be 5mbs or greater), and that additional hardware, software, and telephone systems may be necessary as Service Provider or its licensors may require from time to time. Dealer shall be responsible for the cost of procuring and maintaining all hardware, software, equipment and Internet connections to the Licensed Services. Service Provider and its licensors may at their sole option and for agreed fees, assist Dealer in setting up Dealer’s equipment and software. Dealer agrees that Dealer will utilize a reputable antivirus software program on Dealer’s equipment and that Dealer will update such antivirus software periodically in accordance with a commercially reasonable schedule.
4. Service Order Total Investment Billing Terms:
4.1. One-Time Investment. Dealer will pay One-Time Investment fees, covering the following: (i) all applicable upfront Licensed Service setup fees, (ii) and Service Provider training fees, excluding Service Provider travel expenses arising from training that will be invoiced separately.
4.2. Fees. Dealer’s access to Licensed Services is subject to timely payment of all Service Order fees outlined as One-time Investment and Monthly Recurring Software Services. Service Provider reserves the right to periodically review and adjust Monthly Recurring Software Services fees to reflect inflation and increased costs of production and to change any of its recurring fees stated in a Service Order by giving Dealer thirty (30) day prior written notice, which may be provided in invoice form. Dealer will be charged a $20 service fee for each returned check.
4.3. Billing Cycle. Service Provider will invoice Dealer for Monthly Recurring Software Services upon delivery of access to any Licensed Services that include web-based instruction or delivery of access to Licenses Services following onsite product training.
4.4. Payment Terms. Dealer will pay Service Provider a deposit equal to the One-Time Investment fees and first month’s Monthly Recurring Software Services fees at time of signing this Agreement. Dealer will pay all billed amounts upon receipt of invoice. All fees paid to Company shall be in U.S. dollars. Service Provider will invoice Dealer by postal mail, unless Dealer requests to be invoiced by email.
4.5. Taxes. All Service Provider fees are subject to applicable sales, use, excise or similar taxes, whether or not included at the time the fees are billed. Dealer assumes exclusive liability for, and will pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Licensed Services except for taxes based on the net income of Service Provider. Service Provider’s invoice may include any such taxes that Service Provider determines it is obligated to collect from Dealer with respect to the Licensed Services, and Dealer agrees to timely remit the same to Service Provider.
5. Desired Set-Up Date. Desired Set-Up Date means the date which Service Provider will commence setting up Dealer’s access to Licensed Services. Dealer will execute any additional documents and supply additional information as deemed necessary by Service Provider to commence Dealer’s access to Licensed Services, and notwithstanding Dealer’s delays to provide such necessary information to Service Provider, Dealer will pay all One-Time Investment fees, regardless of Dealer’s request for cancellation following the Desired Set-up Date.
6. Cancellation. Service Provider will only accept dealer’s cancellation requests by email from a dealer principal or general manager to: email@example.com. Service Provider will acknowledge receipt of Dealer’s cancellation notice. Should a dispute arise regarding whether Dealer submitted a cancellation notice, the Dealer shall bear the burden of supplying a copy of Service Provider’s acknowledgment of receipt of Dealer’s cancellation notice email.
7. Confidentiality. Dealer shall cause its users, parent, subsidiaries, affiliates, employees, agents and independent contractors, to keep confidential any and all proprietary information of Service Provider and its licensors acquired in connection with this Agreement, and not publish or disclose in any manner whatsoever such proprietary information to any other person nor use such proprietary information except as expressly set forth herein. Any proprietary information of Service Provider shall remain the property of Service Provider. Dealer shall return to Service Provider and its licensors upon request following termination of this Agreement, or destroy upon such request, any proprietary information supplied by Service Provider under this Agreement to Dealer and/or its users, parent, subsidiaries, affiliates, employees, agents or independent contractors, or acquired through use of the Licensed Services. Dealer acknowledges and agrees that: (i) irreparable injury will result to Service Provider and its licensors in the event of breach by Dealer of this obligation of confidentiality; (ii) the remedy at law for such breach is inadequate; (iii) in addition to any money damages for any such breach, Service Provider and its licensors shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages, and; (iv) that Service Provider nor its licensors shall not be required to post bond as a condition of such relief.
8. Indemnification. Dealer shall defend, and indemnify Service Provider, and its licensors, affiliates, suppliers, parent, subsidiaries, employees, agents and independent contractors, from and against any and all claims, losses, damages, liabilities, counterclaims, costs or expenses (including reasonable attorneys’ fees), whether asserted judicially or administratively, arising out of or related to: (i) breach by Dealer or any of its users of any terms of this Agreement, or applicable law; (ii) unauthorized disclosure of any information, content or materials accessed through the Licensed Services, or; (iii) negligence by Dealer or any of its users related to the performance of obligations under this Agreement.
9. Ownership of Proprietary Rights. Dealer may have feedback, suggestions, or comments that may be incorporated into the Licensed Services and related intellectual property. Service Provider and its licensors may, in their sole discretion, decide to incorporate some or all of Dealer’s feedback, suggestions, or comments into the Licensed Services or related intellectual property. Service Provider and its licensors shall own exclusively and in perpetuity all worldwide right, title and interest in and to the Licensed Services, including any and all versions of the Licensed Services and related intellectual property, including enhancements, modifications, upgrades, customizations or derivative works of the Licensed Services, including any enhancements suggested by Dealer. Dealer hereby assigns all of their right, title and interest in any such enhancements suggested to Service Provider or its licensors. Dealer will execute such documents as may be deemed reasonably necessary to accomplish the objectives of this paragraph. The Licensed Services, and any furnished work or materials created in the delivery of the Licensed Services, are not considered “work for hire” under copyright laws. Service Provider owns the Licensed Services, and the results provided to Dealer in connection with this Agreement.
10. Copyright and Trademark Notice. All works of authorship comprising the Licensed Services as existing and created for Dealer, along with the results provided to Dealer hereunder, are owned by Service Provider and its respective licensors, affiliates or suppliers as applicable, and may not be stored, copied, altered, distributed, decompiled, disassembled or reverse engineered, in whole or in part in any manner, without Service Provider’s prior written consent except as permitted by applicable law. All trademarks and trade names used in connection with the Licensed Services are the property of Service Provider, except where such trademarks and trade names identify the goods and services of licensors or third party providers, which are the trademarks of their respective owners. Dealer hereby licenses all content and material provided to Service Provider for its use in the Licensed Services, in accordance with and subject to the terms of this Agreement.
11. DISCLAIMER OF WARRANTIES. ALL INFORMATION AND RESULTS OBTAINED THROUGH THE LICENSED SERVICES ARE PROVIDED “AS IS” TO DEALER WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. ALL WARRANTIES AND CONDITIONS IMPLIED BY LEGISLATION ARE HEREBY DISCLAIMED BY SERVICE PROVIDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICE PROVIDER DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE LICENSED SERVICES WILL BE DELIVERED WITHOUT INTERRUPTION OR BE ERROR-FREE OR THAT THE LICENSED SERVICES MEET DEALER’S REQUIREMENTS. FURTHERMORE, SERVICE PROVIDER WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECTS IN THE LICENSED SERVICES, OR FOR THE INCOMPATIBILITY BETWEEN THE LICENSED SERVICES AND THE DEALER’S BROWSER OR OTHER SITE ACCESSING PROGRAM, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY DEALER.
12. LIMITATION OF LIABILITY. SERVICE PROVIDER WILL NOT HAVE ANY TORT, CONTRACT OR ANY OTHER LIABILITY TO DEALER AND/OR ANY THIRD PARTY ARISING IN CONNECTION WITH ACCESS TO OR USE OF (OR INABILITY TO USE) THE LICENSED SERVICES, OR RELIANCE ON ANY INFORMATION, RESULTS OR SERVICES PROVIDED BY THE LICENSED SERVICES. SERVICE PROVIDER WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO DEALER AND/OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, FOR ANY LOST PROFITS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SERVICE PROVIDER’S AGGREGATE LIABILITY FOR DAMAGES IN ANY AND ALL ACTIONS, ARISING OUT OF OR IN CONNECTION WITH A LICENSED PRODUCT, EXCEED THE FEES AND CHARGES DUE TO SERVICE PROVIDER IN THE PRECEDING ONE MONTH UNDER THIS SERVICE AGREEMENT. DEALER ACKNOWLEDGES AND AGREES THAT SERVICE PROVIDER’S PRICING IS PREDICATED ON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
14. Privacy and Safeguarding of Dealer’s Customer Information. Service Provider presently maintains, and will continue to maintain, reasonably appropriate physical, electronic and procedural safeguards to guard all information and data relating to Dealer’s customers to which Service Provider has access pursuant to the terms of this Agreement. Such safeguards shall include appropriate measures designed to: (i) protect the security and confidentiality of such information, (ii) protect against anticipated threats or hazards to the security or integrity of such information, and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer of Dealer. Dealer will implement similar safeguards to protect all of Dealer’s customer data. Service Provider will share Dealer’s customer information as permitted by law, and with authorized third parties only as necessary to perform the Licensed Services and ancillary services ordered by Dealer in a Service Order, or to enable third party services that Dealer contracted for with third parties. Further, Service Provider may share certain Dealer customer information and Dealer data related to use of Licensed Services with Dealer’s brand OEM as applicable or as requested by Dealer’s OEM. NOTICE TO NORTH CAROLINA DEALERS: THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.
15. Notices. Service Provider will only accept dealer’s cancellation requests by email as provided in the Cancellation section herein. Dealer’s request for service or repair via e-mail is sufficient. All other notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Service Order to this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
16. Interpretation. This Agreement is the result of negotiations between the parties, with each party having been given the opportunity to have it reviewed by their respective legal counsel, and it shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument. The addendums referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
17. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
18. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Entire Agreement. This Agreement, together with Service Provider’s End User License Agreement (“Service Provider EULA”) for Licensed Services, which Dealer will be required to review and accept upon accessing the Licensed Services, and any other applicable Sales Order or document related to Licensed Services incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Service Provider reserves the right to change, or add new provisions to the Service Provider EULA at any time to address new requirements under applicable laws, regulations, or contractual commitments of Service Provider, changes in business requirements or otherwise as Service Provider deems necessary, in its sole discretion, to protect the Licensed Services, Dealer’s customer information, or Service Provider’s business interests. If that Service Provider makes any changes to its Service Provider EULA, Service Provider will provide Dealer with notice of such changes by presenting the changed EULA for Dealer’s review and acceptance upon accessing the Licensed Services. Dealer’s acceptance of any Service Provider EULA at any time after the Effective Date herein shall constitute acceptance of such new or changed terms.
20. Waiver; Amendment; Cumulative Remedies. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
21. Assignment. The Parties’ obligations hereunder are binding on their permitted successors and permitted assigns. Neither Party may assign any of its rights or delegate any of its obligations hereunder, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that either Party may assign this Agreement and the license hereunder to a successor in interest to such assigning Party’s business, whether by merger, stock or asset sale, or acquisition, as long as such assigning Party provides prompt written notice to the other Party of any such assignment and the assignee assumes in writing or by operation of law, all of the Assigning Party’s obligations under this Agreement. Any purported assignment or delegation in violation of this Section shall be null and void.
22. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of this Agreement, including but not limited to, contract, equity, tort, fraud, and statutory claims, shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement.
23. Force Majeure. Neither Service Provider nor its licensors, affiliates or suppliers, shall be liable or responsible to Dealer, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Service Provider’s reasonable control, including, without limitation: acts of God; explosion, flood, fire, or hurricane; any form of civil unrest; labor strike; government action, order or law; national or regional emergency; non-availability of adequate power; loss and destruction of property; server failures; software glitches; failure of internet service providers; and failure of telecommunications providers.
24. Signature. Each party may sign this Agreement using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies. Dealer’s signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission, shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
25. Terms Applicable to Trade-in Valet.
25.1. Dealer will only use customer and vehicle information obtained through the Licensed Services for the sole purpose of communicating with customers about the purchase of their vehicle, and Dealer’s potential sale of a vehicle to the customer. Dealer will not sell or transfer any customer information derived from the Licensed Services to a third party for marketing or any other purpose.
25.2. Dealer will disclose all vehicle safety and integrity issues in the course of using the Licensed Services, including without limitation, structural damage, repairs or replacements as outlined in the NAAA Arbitration Policy dated October 13, 2013 (located at www.NAAA.com), as legally required, and those issues which a reasonable person would deem a safety or integrity concern.
25.3. If Dealer purchases a consumer’s vehicle at the appraised amount by the Licensed Services, then Dealer may elect to have Service Provider purchase the vehicle from Dealer for that appraised amount (“Buy-Back Option”), if the following conditions are satisfied:
25.3.1. Appraisals issued to a potential consumer by the Licensed Services are valid for the Buy-Back Option for seven (7) calendar days, with such 7-day period commencing on the date of appraisal;
25.3.2. Upon consumer presenting vehicle to Dealer within the 7-day period, Dealer is solely responsible for ensuring that the vehicle condition provided into the Licensed Services is a true representation of the actual vehicle condition, if not, then Dealer must update the Licensed Services to include any undisclosed issues, such as, without limitation, drivability, paintwork, body damage, tire condition, non-working components, and/or aftermarket equipment;
25.3.3. Following Dealer’s purchase of consumer’s vehicle, Dealer may exercise the Buy-Back Option during the three (3) calendar days from purchase, with such 3-day period commencing on the date of Dealer’s purchase, by providing notice to Service Provider with acknowledgement of receipt;
25.3.4. The Buy-Back Option is valid for ten (10) calendar days from the date of the issued appraisal, with such 10-day period including the date of appraisal;
25.3.5. Following Dealer’s notice to exercise Buy-Back Option within the 10-day period, Dealer must deliver the purchased vehicle to a Manheim or ADESA facility for a third-party Condition Report within two (2) calendar days, with such 2-day period including the date of notice, and;
25.3.6. If the third-party Condition Report confirms the vehicle condition as provided to the Licensed Services at time of appraisal, then following Service provider receipt of vehicle title, Service Provider will pay Dealer the appraised amount.
25.4. Service Provider reserves the right to modify or amend the Buy-Back Option as outlined herein at its sole discretion by providing Dealer with notice via email to the point of contact stated in the Service Order, or via monthly invoice in the normal course of business. Dealer’s continued use of Trade-in Valet for a 10-day period following Service Provider’s notice of Buy-Back Option modifications or amendments will constitute Dealer’s acceptance of such modifications or amendments.
26. Prior Agreements Superseded. If Dealer is subscribing to Licensed Services hereunder for which Dealer has an existing service agreement for an individual or combination of Licensed Services, then the terms applicable to such Licensed Services contained in this Agreement will supersede the terms applicable to such Licensed Services contained in any prior agreement between Dealer and Service Provider, as of the Effective Date.
27. Order of Precedence. In the event of any inconsistency or conflict between the provisions in the general terms and conditions of this Agreement and the provisions of any Service Order form, the provisions in these general terms and conditions will prevail. In the event of any inconsistency or conflict between the statements in the body of this Agreement and the statements in Service Provider’s EULA, the statements in Service Provider’s EULA shall control the business relationship between Service Provider and Dealer.
28. Dealer Ownership of DMS Data. Dealer owns all individual customer data and dealership data it inputs into its DMS via the Licensed Services (“Data”). Notwithstanding any other agreement between Dealer and Service Provider to the contrary, Dealer hereby grants to Service Provider a non-exclusive, worldwide, royalty-free, non-transferable, perpetual license to use the Data, on the condition that the Data is used only for aggregating the Data for reasonable business use and derivative works related to Service Provider’s services, by de-identifying the Data and maintaining the privacy of personally identifying information. Service Provider may provide the Data to third-party service providers who provide services to Service Provider, or who assist Service Provider in improving its services to dealers, on the condition that each such third-party service provider executes an agreement to maintain the confidentiality of the Data.