The products and services, including, without limitation, the Website(s), Digital Advertising, Website Tools (including without limitation: Chat, Social/Reputation, Trade-In, SEO, Service Scheduling, Inventory Syndication, Call Tracking, Behavioral Click Tracking, and/or DMS Marketing), Internet Brand’s Proprietary API Software Performance Reporting Systems and/or other software, and maintenance tools, and other products and services available through the enrollment portal (referred to collectively as the “Services”), are made available by Internet Brands, Inc. (“Internet Brands”), as part of the FCA Dealer Digital Program for automotive dealerships that have been authorized by FCA US, LLC (“FCA”) to sell and service FCA brand vehicles. Although the FCA Dealer Digital Program is sponsored by FCA, FCA is not providing or otherwise responsible for the Services and is not a party to these Universal Terms and Conditions of Use and End User License Agreement (this “Agreement”). FCA is a third party beneficiary of this Agreement as provided in Section 18, however, Internet Brands does not have the power or authority to bind FCA through this Agreement or otherwise. This Agreement is a legal contract between you, the automotive dealer (“Dealer”) subscribing to the Services, and Internet Brands. The Services are subject to the terms set forth in this Agreement. Dealer represents and warrants that it is a licensed automotive dealer authorized to sell and service vehicles under a franchise agreement with FCA.
Dealer’s enrollment for any Services authorizes Internet Brands to begin providing Services and billing Dealer immediately. Dealer agrees to pay the applicable fees for Services as set forth in the electronic enrollment portal or order form, incorporated herein by reference.
IN ORDER TO USE THE SERVICES, DEALER MUST FIRST AGREE TO THE TERMS SET FORTH IN THIS AGREEMENT BY CLICKING "ENROLL NOW" ON THE ENROLLMENT PORTAL AFTER MAKING THE SERVICE SELECTIONS, OR BY SELECTING SERVICES AND SIGNING A SERVICES ENROLLMENT FORM. DEALER MAY NOT USE THE SERVICES IF DEALER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT. DEALER CAN ACCEPT THE TERMS OF THIS AGREEMENT BY ENROLLING FOR AND/OR BY USING THE SERVICES, IN WHICH CASE, DEALER UNDERSTANDS AND AGREES THAT INTERNET BRANDS WILL TREAT DEALER’S USE OF THE SERVICES AS ACCEPTANCE OF THE TERMS OF THIS AGREEMENT.
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The definition of Services hereunder shall also include any online access to the electronic enrollment portal, informational web pages, and/or online reporting service (collectively, the "Secure Web Services") provided by Internet Brands.
Dealer understands that part of the Services may include, among other things, the creation and posting of display ads, videos or other advertising media (“Advertisements”) on the World Wide Web and otherwise by Internet Brands or the Service Provider on Dealer’s behalf relating to Dealer’s automotive dealership. Dealer is solely responsible for all: (a) campaigns and budget allocation and management (creative or targets), whether generated by or for Dealer; and (b) web site content, services and landing pages that create links, or directs viewers, to any products and/or services offered or provided by the Dealer (collectively “Dealer’s Products and Services”). Dealer understands and agrees that Advertisements may be placed on any website or property provided by a Publisher upon which Internet Brands or the Service Provider may select or Dealer requests. Dealer authorizes and consents to all such placements. Internet Brands or the Service Provider may reject or remove any Advertisement for any or no reason. Dealer may not use or republish any Advertisements or other marketing materials provided to Dealer by Internet Brands or a Service Provider without prior written consent from Internet Brands.
Dealer understands that part of the Services may include, among other things, search engine optimization (“SEO”) services. The SEO Services may include some or all of the products and services described in Addendum A attached hereto, depending upon the Service Provider and service package selected by Dealer.
Dealer acknowledges and agrees that SEO services do not include paid digital display advertising, pay per click advertising, the performance of maintenance or updates of the Dealer’s website (such as minor alterations, repairs, or changes to the website, including but not limited to updating links, providing news updates, refreshing content, making minor graphic alternations), and any other products or services not expressly included in descriptions of the SEO Services included in the SEO service package provided by the Service Provider selected by Dealer.
Dealer authorizes Internet Brands and/or the Service Provider to use the specific keywords and/or phases approved by Dealer for development, improving the ranking of, and/or positioning the contents of the Dealer’s website in search engines and/or directories. Dealer acknowledges Internet Brands and/or the Service Provider will only optimize Dealer’s website for keywords and/or phrases approved by Dealer. Neither Internet Brands nor the Service Provider will perform a trademark search on keywords or phrases approved by Dealer. Dealer agrees to approve only Dealer-owned trademark or product names and generic industry terms relevant to Dealer’s website. Some words and phrases are trademarks of third parties and search engines may disallow use of such terms.
Dealer understands, acknowledges and agrees that:
Dealer agrees to cooperate with Internet Brands and/or the Service Provider in selecting appropriate keywords for SEO; providing and/or granting permissions or communicate directly with any third parties to allow administrative/backend access to the Dealer's website, blog and/or social media pages; providing access to website traffic statistics for analysis and tracking purposes; providing Content for Dealer's website, blog and/or social media pages to provide SEO benefit; and providing such other assistance as Internet Brands and/or the Service Provider shall reasonably request in connection with performance of the Services hereunder. In the event the performance of the Services requires Internet Brands or the Service Provider to access Dealer's computer systems to collect data or perform the Services, including the placement of links or tags on the Dealer's website, Dealer specifically requests and authorizes such access and will provide, and has all rights and authorizations required to provide, such access.
The SEO Services do not include maintenance or storage of documents, physical goods, graphic work, web pages, data or files (digital or otherwise), and Dealer shall be solely responsible for the storage, maintenance, custody, archiving, and security of the same.
Unless expressly included in the description of the SEO Services provided by the Service Provider, the SEO Services do not include email, telephone, or onsite customer service support.
Dealer understands and agrees that in connection with the SEO Services, Dealer Content and/or Provided Content, including information related to Dealer and Dealer's Products and Services, and links to Dealer's website, may be placed on any website or property provided by a Publisher upon which Internet Brands or the Service Provider may select or Dealer requests. Dealer authorizes and consents to all such placements. Internet Brands or the Service Provider may remove any Dealer Content or Provided Content that it places on a third party website for any or no reason.
Call Tracking Numbers
Dealer acknowledge that, as part of the Services, Dealer may receive use of and access to certain toll- free and local tracking phone numbers (each a “Number”), as well as call analytics services and certain software provided in connection therewith (collectively the “Call Analytics Services”).
Use of the Numbers and the Call Analytics Services provided to Dealer is subject to the following terms:
If Dealer subscribes to one or more Black Book® online trade-in tools, Dealer understands and agrees that Dealer’s use of such online trade-in tools shall be subject to, and Dealer agrees to the additional terms and conditions set forth at, http://www.intelliprice.com/VeretechTC/TermsofUse.htm, which are incorporated herein by reference and made a part of the Agreement.
Kelley Blue Book®
If Dealer subscribes to one or more Kelley Blue Book® online trade-in tools, Dealer understands and agrees that Dealer’s use of such online trade-in tools shall be subject to, and Dealer agrees to the additional terms and conditions set forth at, http://b2b.kbb.com/atcleaddriver, which are incorporated herein by reference and made a part of the Agreement.
Use of the Services is subject to the applicable policies of the search engine, website or network publishers ("Publishers") on which Advertisements are posted or displayed in connection with the Services, including without limitation any Publisher's editorial guidelines, privacy policies, trademark guidelines, and ad specification requirements ("Policies"). Dealer agrees to comply with the Policies during the term of this Agreement. Internet Brands or the Service Provider may modify Advertisements to comply with any Policies in its sole discretion. Dealer agrees not to access (or attempt to access) any of the Secure Web Services by any means other than through the interfaces that are made accessible by Internet Brands or the Service Provider. Dealer agrees not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Dealer will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. Dealer agrees not to access (or attempt to access) any of the Secure Web Services through any automated means (including use of scripts or web crawlers.) Without limiting the foregoing, Dealer agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of any Secure Web Service or other program associated with the Services.
Internet Brands shall provide the Services and perform its obligations under this Agreement, and Dealer shall use the Services and perform its obligations under this Agreement, in compliance with all applicable laws and regulations. Dealer may use the Services only for purposes that are permitted hereunder and in accordance with applicable laws and regulations. Dealer shall at all times comply with all applicable laws, legislation, rules, regulations, governmental requirements and industry standards with respect to Dealer’s use of the Services and the performance by Dealer of Dealer’s obligations hereunder, including, but not limited to, any applicable provisions of Title V of the Gramm-Leach-Bliley Financial Services Modernization Act of 1999 and regulations promulgated under that Act or other federal, state, and local laws, rules, regulations, and ordinances governing the privacy and security of customer information that apply to Dealer. Dealer agrees to protect and maintain the privacy of such information accordingly.
Dealer acknowledges and agrees that all materials and information (such as data files, written text, computer software, music, audio files or other sounds, photographs, manuals, documents, illustrations, pricing information, videos or other images) which are provided by Internet Brands, its Service Providers, or FCA in connection with the Services, or which Dealer may have access to as part of, or through Dealer’s use of, the Services (the “Provided Content”), together with the Services, including any copyright and/or other intellectual property rights in the Services and the Provided Content, are owned by Internet Brands, FCA, the Service Providers and/or their licensors. Dealer may not modify, rent, lease, loan, sell, or distribute the Provided Content or the Services or create derivative works based on the Provided Content or the Services (either in whole or in part), except as provided in this Agreement. Dealer further acknowledges that the Services may contain information which is designated confidential; Dealer agrees not to disclose such information without Internet Brands’ prior written consent.
Any work of authorship created by Internet Brands and/or a Service Provider expressly for Dealer and delivered to Dealer in connection with the Services shall be “work made for hire” for Dealer and all right title and interest (including copyright, trademarks, and other proprietary or intellectual property rights) to such work of authorship shall vest solely in Dealer. In the event any portion of any work of authorship created by Internet Brands and/or the Service Provider hereunder does not qualify as “work made for hire,” Internet Brands and/or the Service Provider, as the case may be, hereby assigns such work of authorship to Dealer.
Any work of authorship that was not created by Internet Brands and/or the Service Provider expressly for Dealer in connection with the Services (for example, any work of authorship of Internet Brands and/or a Service Provider existing prior to the Effective Date of this Agreement, or licensed from a third party), which is provided to Dealer in connection with the Services, shall be Provided Content under this Agreement.
Dealer agrees that it is solely responsible for all content, materials and information provided by Dealer or that Dealer (or any third party acting on behalf of Dealer, excepting FCA and the Service Providers) creates, transmits or displays while using the Services (“Dealer Content”) and for the consequences of these actions (including any loss, liability, fine or damage). Internet Brands reserves the right (but shall have no obligation) to pre---screen, review, flag, filter, modify, refuse or remove any or all Dealer Content from any Service in Internet Brands’ sole discretion.
Dealer understands that Internet Brands and the Service Providers, in performing the Services, may (a) transmit or distribute the Dealer Content over various public networks and in various media; and (b) make such changes to the Dealer Content as are necessary to conform and adapt the Dealer Content to the technical requirements of connecting networks, devices, services or media. Dealer agrees that this license shall permit Internet Brands and the Service Providers to take these actions.
DEALER REPRESENTS, WARRANTS AND COVENANTS THAT ALL DEALER CONTENT SHALL NOT CONTAIN ANY MATERIAL, LINK, ADVERTISING OR ANYTHING OTHER THING THAT (A) INFRINGES COPYRIGHTS, TRADEMARKS, PATENTS, TRADE SECRET, PUBLICITY RIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT OR OTHER RIGHT OF ANY OTHER PERSON OR ENTITY; (B) VIOLATES ANY LAW OR REGULATION, (C) IS DEFAMATORY OR LIBELOUS; (D) IS ABUSIVE, HARASSING, OR THREATENING; (E) IS OBSCENE, VULGAR, OR PROFANE; OR (F) VIOLATES SOMEONE’S PRIVACY. DEALER FURTHER REPRESENTS, WARRANTS AND COVENANTS THAT DEALER OWNS THE DEALER CONTENT AND ALL PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS THEREIN, OR HAS EXPRESS WRITTEN AUTHORIZATION FROM THE OWNER TO COPY, USE AND DISPLAY THE DEALER CONTENT AS CONTEMPLATED BY THIS AGREEMENT.
DEALER SHALL, AS REQUIRED BY APPLICABLE LAW OR REGULATION, PROVIDE NOTICE TO DEALER’S CUSTOMERS AND OBTAIN CONSENT, IF REQUIRED FOR USE OF THE SERVICES, IN DEALER'S PRIVACY POLICIES AND/OR AS OTHERWISE REQUIRED BY LAW OR REGULATION.
DEALER AGREES TO THE USE OF INFORMATION AND DATA PROVIDED BY DEALER’S CUSTOMERS IN ACCORDANCE WITH DEALER’S PRIVACY POLICIES.
Provided Dealer is not in default of any obligation under this Agreement, and provided Dealer has paid all applicable fees, subject to the terms and conditions of this Agreement, Internet Brands hereby grants Dealer, or shall obtain for Dealer, a limited, restricted, revocable, personal, worldwide, royalty-free, non-assignable, non-transferable, non-sub-licensable and non-exclusive license to use the Services and the Provided Content provided to Dealer, and to reproduce, publicly display, publicly perform, and distribute such Provided Content in connection with use of the Services during the term of this Agreement. This license is for the sole purpose of enabling Dealer to use and enjoy the benefit of the Services in the manner permitted by this Agreement. Dealer retains any copyright and/or other intellectual property rights Dealer already holds in Dealer Content. The products and services of the Service Providers may contain license terms specific to such products or services, and Dealer agrees to comply with all such license terms included in any click through or shrink wrap license or of which Internet Brands otherwise makes Dealer aware. Dealer may not (and Dealer may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the software provided with the Services or any part thereof, or any of the other proprietary elements of the Service, or allow any third parties to use the Services, or any portion thereof, in any way. Dealer may not assign (or grant a sub-license of), grant a security interest in, or otherwise transfer any rights to use the Services, including any software or other proprietary elements of the Service. Dealer agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services. Nothing in this Agreement gives Dealer a right to use any trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of Internet Brands or the Service Providers, except in strict compliance with the license granted below. Notwithstanding the foregoing, this Section 8 does not include an obligation by Internet Brands and/or the Service Provider to grant Dealer copyrights or other intellectual property rights to, and Dealer shall have no rights, title and interest (including copyright, trademarks, and other proprietary or intellectual property rights) in any software, software code, or software system used by Internet Brands and/or the Service Provider in connection with providing the Services or otherwise.
Dealer hereby grants to Internet Brands, and to each Service Provider providing Services to Dealer under this Agreement, a limited, restricted, revocable, worldwide, royalty-free, and non-exclusive license to (a) use, reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute the Dealer Content in order to provide the Services as contemplated in this Agreement, and (b) to use reproduce, publish, publicly perform, publicly display the trademarks, trade names, service marks and advertising symbols owned by the Dealer (the “Dealer Marks”), during the term of this Agreement, solely in connection with providing the Services to Dealer hereunder. Dealer agrees that this license includes a right for Internet Brands and the Service Providers to make Dealer Content available to other companies, organizations or individuals with whom Internet Brands has relationships for the provision of the Services to Dealer. Internet Brands and the Service Providers shall use the Dealer Content in accordance with the license and rights granted by Dealer herein for the purpose of providing the Services to Dealer. Internet Brands acknowledges that all Dealer Content and Dealer Marks are and shall remain the sole property of Dealer. With the exception of the provisions of this section, nothing in this Agreement shall be deemed to confer upon the Internet Brands any right, title, interest, or license (express or implied) in any of the Dealer Marks, or in the goodwill now or hereafter associated therewith. During the term of this Agreement, the Dealer Marks shall not be used by Internet Brands or the Service Provider in such manner as to impair or dilute the same, nor otherwise than in accordance with instructions given from time to time by Dealer. Dealer represents and warrants that it has all the rights, power and authority necessary to grant the above license.
As used herein “Dealer Data” means information and data pertaining to the Dealer’s website(s), advertising activity, sales leads, lead generation activity, use of the Services, or any of Dealer’s other business activities. The Dealer Data shall continue to be owned by the Dealer. Neither Internet Brands nor the Service Provider will use the Dealer Data for any purposes other than to provide the Services or as otherwise provided herein. Nothing in this Agreement shall obligate Internet Brands or any Service Provider to retain any Dealer Data.
In the event the performance of the Services requires Internet Brands and/or the Service Providers to access Dealer’s computer systems to collect Dealer Data or perform the Services, Dealer specifically requests and authorizes such access and will provide, and has all rights and authorizations required to provide, such access. Dealer understands and agrees that Internet Brands and/or the Service Providers may engage a data polling service to poll and transmit Dealer Data from Dealer’s DMS or other computer systems.
Dealer hereby grants to Internet Brands and the Service Providers a royalty-free, non-exclusive, non-transferable, non-cancelable license to use the Dealer Data, including without limitation any sales and inventory data (to the extent available) obtained from Dealer’s computer systems, to: use the Dealer Data (i) to provide the Services; (ii) to develop reports for FCA, which may include directly sharing Dealer Data with FCA; (iii) for evaluation of sales lead performance; (iv) for consumer, vehicle, and industry research and reference purposes, to create proprietary market price and incentive guides, the generation of market analysis data and related products, and/or in promotional materials of Internet Brands and/or the Service Providers, but only when the Dealer Data is combined with other dealers' information/data and presented in an aggregated and de-identifiable manner without disclosing the Dealer’s name or the name of any consumer, and provided the Dealer Data is not sold separately to any third party. Dealer also authorizes Internet Brands and the Service Providers to transfer, provide or otherwise make available the Dealer Data to Internet Brands, FCA, and other Service Providers, in connection with providing the Services hereunder.
Internet Brands and/or the Service Providers may access Dealer Data in accounts created and managed by Internet Brands and/or the Service Providers on the third party sites or, if Dealer provides its account information and authorizes access to accounts managed by Dealer, Internet Brands and/or the Service Providers may access Dealer’s accounts directly on those third party sites. Dealer expressly authorize Internet Brands and the Service Providers to access Dealer Data maintained by third parties, including Google in such services as Google AdWords and Google Analytics, on Dealer’s behalf as Dealer’s agent in order to provide the Services.
Internet Brands reserves the right to modify or change the Services provided hereunder by modifying current features, deleting features and/or adding features, upon prior written notice to Dealer. Some modifications or changes may result in a fee increase or decrease for such Services. Dealer’s continued use of the Services hereunder after notice will constitute Dealer's acceptance of the change in the Services and Dealer's agreement to pay the fees associated with such change in Services. Dealer acknowledges and agrees that Internet Brands may stop (permanently or temporarily) providing the Services, or any part thereof, to Dealer if: (a) Dealer has breached any provision of this Agreement (or have acted in manner which clearly shows that Dealer does not intend to, or is unable to comply with the provisions of this Agreement); or (b) Internet Brands is required to do so by law (for example, where the provision of the Services to Dealer is, or becomes, unlawful); or (c) the Service Provider selected by Dealer or Internet Brands to provide the Services has terminated its relationship with Internet Brands or ceases to offer the Services, or any part thereof, to Dealer; or (d) the provision of the Services to Dealer by Internet Brands is, in Internet Brands’ sole opinion, no longer commercially viable, or (e) Internet Brands provides Dealer with thirty (30) days prior notice of termination of the Services, or any part thereof, with or without cause. If Dealer wishes to stop using the Services at any time, Dealer agrees to provide Internet Brands with prior written notice of its intent to cancel receiving the Services in accordance with the provisions of set forth below. In addition, Internet Brands may disable access to Dealer’s account for non- payment of Services. Dealer acknowledges and agrees that if Internet Brands disables access to Dealer’s account, Dealer may be prevented from accessing the Services, Dealer’s account details or any files or other content which is contained in Dealer’s account. Dealer acknowledges and agrees that Internet Brands, FCA and the Service Providers will not be liable in any way for any inconvenience, delay, damages, losses or other claims related to disabling Dealer’s access to the account.
Dealer agrees to pay the fees for the Services in the amounts set forth in the online registration process or, if an order form was used, on the order form. If fees for the Services, or any portion of the Services, are billed to Dealer’s FCA parts statement, Dealer agrees to pay such fees through, and in accordance with the terms of, Dealer’s FCA parts statement. Internet Brands may invoice Dealer directly for the Services and Dealer agrees to pay such invoice within thirty (30) days of receipt of a correct invoice. If Dealer is paying by credit card, payment for the Services is on a pre-paid basis and Dealer is charged on a periodic basis (as specified in the online registration process or order form, e.g., monthly, quarterly, etc.), for the Services and Dealer is responsible for maintaining accurate and current credit card information. If credit card charges for the Services are denied for any reason, use of the Services will be terminated.
Any changes in advertising packages (e.g., to increase or reduce the amount of the package) will take effect as of the first day of the month following the month in which Dealer requests the change so long as Dealer makes the request not less than five (5) business days prior to the end of the month.
Internet Brands may increase fees by giving Dealer not less than sixty (60) days written notice prior to the effective date of the price increase. Except as set forth otherwise herein, all charges under this Agreement will be due and payable as specified on and consistent with the payment terms of Dealer’s FCA parts statement. If Dealer fails to pay for the Services timely, Dealer agrees to pay to Internet Brands, in addition to the fees for the Services: (i) a finance charge equal to the lower of 1.5% per month or the maximum amount permitted by law, and (ii) all costs incurred in connection with collection of past due amounts (including collection agency fees, reasonable attorneys’ fees, and court costs). In addition to the other rights reserved hereunder, Internet Brands expressly reserves the right to terminate the Services and disable Dealer’s access to the Services for non-payment.
All fees stated hereunder 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 shall 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 Services except for taxes based on the net income of Internet Brands or Service Providers. The Dealer’s FCA parts statement may include any such taxes that FCA determines it is obligated to collect from Dealer with respect to the Services, and Dealer agrees to timely remit the same to FCA.
DEALER HEREBY REPRESENTS AND WARRANTS THAT ANY AND ALL DEALER CONTENT SUBMITTED FOR PUBLICATION OR DISPLAYED ON DEALER'S WEBSITE OR IN DIGITAL ADVERTISING, OR IN ANY SOCIAL MEDIA, WILL NOT VIOLATE OR OTHERWISE INFRINGE UPON ANY COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW, PRIVACY OR PROPRIETARY RIGHT OF OTHERS, OR CONTAIN ANYTHING CONSIDERED OBSCENE OR LIBELOUS.
This Agreement shall continue in effect until cancelled or terminated by Dealer or Internet Brands in accordance with the terms of this Agreement.
Dealer may cancel the Services online through its account, if online cancellation functionality is available, or, if not available, by providing written notice to Internet Brands delivered by email to [email protected] Cancellations that occur on or before the 10th day of the month will be effective as of the end of that month and Dealer will be billed for the Services, and be responsible for payment of the Services, through the end of that month. Cancellations that occur after the 10th day of the month will be effective at the end of the following month and Dealer will be billed for the Services, and be responsible for payment of the Services, for the remainder of that month and the following month. The cancellation may be subject to Publisher’s policies or the ability to re-schedule reserved inventory or cancel Advertisements already in production. Cancelled Advertisements may be published despite cancellation if cancellation of the Advertisements occurs after any applicable commitment date as set forth in advance by Internet Brands or the Service Provider, in which case Dealer must pay for those Advertisements. Upon cancellation or expiration of this Agreement, Dealer will be responsible for any Advertisements already run.
If Internet Brands materially defaults in its performance under this Agreement and fails either substantially to cure such default within thirty (30) days after receiving written notice specifying the default or, for those defaults that cannot reasonably be cured within thirty (30) days, promptly to commence curing such default and thereafter proceed with all due diligence substantially to cure the default, then Dealer may terminate this Agreement by written notice to Internet Brands.
Internet Brands may, at any time and for any reason, terminate this Agreement upon thirty (30) days’ prior written notice to Dealer.
This Agreement will automatically terminate without requirement of notice by either party effective on the date of the expiration or termination of Dealer’s franchise agreement with FCA for any reason.
DEALER EXPRESSLY UNDERSTANDS AND AGREES THAT, DEALER’S USE OF THE SERVICES AND THE PROVIDED CONTENT IS AT DEALER’S SOLE RISK AND ARE PROVIDED “AS IS” AND “AS AVAILABLE.” IN PARTICULAR, INTERNET BRANDS, FCA, THE SERVICE PROVIDERS AND THEIR AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO DEALER THAT: (A) DEALER'S USE OF THE SERVICES OR THE PROVIDED CONTENT WILL MEET DEALER'S REQUIREMENTS, OR (B) DEALER’S USE OF THE SERVICES OR PROVIDED CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (C) ANY INFORMATION OBTAINED BY DEALER AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (D) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO DEALER AS PART OF THE SERVICES WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, INCLUDING ANY PROVIDED CONTENT, IS DONE AT DEALER'S OWN DISCRETION AND RISK, AND DEALER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO DEALER'S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DEALER DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY DEALER FROM INTERNET BRANDS, ANY SERVICE PROVIDER OR FCA, OR THROUGH OR FROM THE USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. INTERNET BRANDS, FCA AND EACH SERVICE PROVIDER EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND THE PROVIDED CONTENT INCLUDING, BUT NOT LIMITED TO ANT IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
DEALER UNDERSTANDS AND AGREES THAT NEITHER INTERNET BRANDS, NOR FCA, NOR THE SERVICE PROVIDERS, NOR ANY OF THEIR AFFILIATES OR LICENSORS SHALL BY LIABLE TO DEALER FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY DEALER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY DEALER AS A RESULT OF: (I) ANY RELIANCE PLACED BY DEALER ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN DEALER AND ANY THIRD PARTY REGARDING DEALER’S USE OF THE SERVICES, (II) ANY CHANGES WHICH INTERNET BRANDS OR ANY SERVICE PROVIDER MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY DEALER CONTENT, DEALER DATA, AND/OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH DEALER’S USE OF THE SERVICES; (IV) DEALER'S FAILURE TO PROVIDE INTERNET BRANDS OR ANY SERVICE PROVIDER WITH ACCURATE ACCOUNT INFORMATION; OR (V) DEALER'S FAILURE TO KEEP DEALER'S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
DEALER FURTHER AGREES THAT THAT THE AGGREGATE MAXIMUM LIABILITY OF INTERNET BRANDS, FCA AND THE SERVICE PROVIDERS UNDER THIS AGREEMENT FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY DEALER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE LAST EVENT GIVING RISING TO THE LIABILITY. THE ABOVE LIMITATIONS ON LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
THE ABOVE PROVISIONS OF THIS SECTION 16 SHALL NOT APPLY TO, AND NOTHING ABOVE IN THIS SECTION 16 SHALL BE CONSTRUED TO LIMIT, A PARTY’S LIABILITY FOR DAMAGES RESULTING FROM (I) BREACHES BY THE OTHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS OR (II) VIOLATIONS BY A PARTY OF THE PROVISIONS OF THIS AGREEMENT DEALING WITH OWNERSHIP OF INTELLECTUAL PROPERTY OR USE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR (III) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
DEALER ACKNOWLEDGES AND AGREES WITH INTERNET BRANDS THAT (A) FCA HAS MADE NO REPRESENTATIONS OR WARRANTIES TO DEALER AS TO ANY SERVICES PROVIDED BY INTERNET BRANDS OR ANY SERVICE PROVIDER, (B) DEALER AGREES NOT TO MAKE ANY CLAIM WHATSOEVER, AND HEREBY WAIVES ALL CLAIMS IT MAY HAVE, AGAINST FCA WITH RESPECT TO ANY SERVICES PROVIDED BY INTERNET BRANDS OR ANY SERVICE PROVIDER.
DEALER WILL DEFEND, INDEMNIFY AND HOLD INTERNET BRANDS, THE SERVICE PROVIDERS, FCA AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, AGENTS, REPRESENTATIVES AND AFFILIATES (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ALL THIRD PARTY, CLAIMS, DEMANDS, SUITS, CAUSES OF ACTIONS, AND ADMINISTRATIVE OR REGULATORY ACTIONS OF WHATEVER KIND OR CHARACTER, AND INCLUDING ANY RELATED LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, FINES JUDGMENTS, SETTLEMENTS, CHARGES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND ACCOUNTANTS’ FEES AND DISBURSEMENTS (COLLECTIVELY, “CLAIMS”) TO THE EXTENT THAT SUCH CLAIMS RELATE TO, ARISE OUT OF OR RESULT FROM: (I) ANY INTENTIONAL OR WILLFUL MISCONDUCT OR NEGLIGENCE BY DEALER OR OF ANY OF DEALER’S EMPLOYEES, AGENTS OR SUBCONTRACTORS; (II) A BREACH OF THIS AGREEMENT BY DEALER, INCLUDING A BREACH OF ANY OF DEALER’S REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THIS AGREEMENT OR (II) DEALER’S USE OF THE NUMBERS, CALL ANALYTICS SERVICES, AND/OR RECORDED CALL SERVICES; BUT EXCLUDING, IN EACH CASE, CLAIMS, DEMANDS AND CAUSES OF ACTIONS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON OR ENTITY SEEKING INDEMNIFICATION.
FCA AND EACH SERVICE PROVIDER SHALL BE DEEMED A THIRD PARTY BENEFICIARY OF THE INDEMNIFICATION AND LIMITATION OF LIABILITY PROVISIONS OF THIS AGREEMENT.
Each party hereto shall be excused from performance hereunder, except for payment obligations, and to the extent that it is prevented from performing any obligation hereunder, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control, including failures, fluctuations or non-availability of electrical power, heat, light, air conditioning, computing or information systems or telecommunications equipment or the inability of hardware or software leased or acquired by sale or license from third parties to process without error or malfunction any data. Such nonperformance shall not be a default or ground for termination as long as reasonable means are taken to remedy expeditiously the problem causing such nonperformance.
Internet Brands and the Service Providers are independent contractors, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created between or among Dealer, Internet Brands and any Service Provider under this Agreement.
Any failure or delay in exercising or enforcing any rights or remedies that are available under this Agreement (or that we have the benefit of under any applicable law or otherwise) shall not be deemed to be a waiver of any other rights or remedies and that all of such rights and remedies will remain available.
Any notice to be provided under this Agreement shall be in writing and shall be delivered to the last known address of the party to receive the notice, which shall be considered delivered three days after mailing if sent certified mail, return receipt requested, or when received, if sent by e-mail, facsimile, prepaid courier, express mail or personal delivery.
This Agreement constitutes the entire agreement and understanding of the parties in respect of the subject matter contained herein and supersedes all prior agreements, consents and understandings relating to such subject matter. The parties agree that there is no oral or other agreement relating to such subject matter between the parties which has not been incorporated into this agreement.
The provisions of Sections 2, 3, 5, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of this Agreement, and any right or obligation of the parties in this Agreement which, by its express terms or nature and context, is intended to survive termination, shall survive the termination of this Agreement and the Services.
Internet Brands may make changes to this Agreement or put into place additional terms and conditions (“Additional Terms”) from time to time at its discretion. When these changes are made, Internet Brands will notify Dealer and make a new copy of this Agreement available on the maintenance tool point of entry for the Services. Dealer understands and agrees that its use of the Services after the date on which this Agreement or any Additional Terms have changed shall constitute Dealer’s agreement to and, acceptance of the updated Agreement or Additional Terms. Except as set forth herein, this Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. Headings used in this Agreement are for reference purposes only and are not a part of this Agreement.
Dealer may not assign this Agreement without the prior written approval of Internet Brands, except that no approval shall be required to assign this agreement to any person or entity which is, directly or indirectly, controlled by, controlling, or under common control with Dealer and is a licensed dealer authorized to sell and service automobiles under a franchise agreement with FCA. This Agreement and all rights of Internet Brands hereunder may be assigned by Internet Brands, including, without limitation, to FCA, without consent, payment or other condition. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
This Agreement shall be construed in accordance with the substantive laws of the State of Michigan without reference to its conflicts of law principles. The parties expressly disclaim any application to this Agreement of the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. All disputes and controversies pertaining to this Agreement, the performance of the parties hereunder and the enforcement hereof shall be heard exclusively in the federal or state courts located in the County of Oakland, Michigan, U.S.A. and the parties hereby submit to the jurisdiction thereof and venue therein. Notwithstanding the foregoing, a party may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any appropriate jurisdiction.
As used in this section, "Confidential Information" means the terms of this Agreement and any other information or materials marked confidential or identified as confidential at the time of disclosure. Confidential Information will not include information that is: (a) publicly available; (b) already in the other party's possession and not subject to a confidentiality obligation; (c) obtained by the other party from any source without any obligation of confidentiality; (d) independently developed by the other party without reference to the disclosing party's Confidential Information; or (e) required to be disclosed by order of a court or other governmental entity, provided no less than ten (10) days prior written notice is given to the party owning such Confidential Information so that such party may have the opportunity to obtain a protective order or other equitable relief.
Each party acknowledges and agrees that: (a) it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement; and (b) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care.
ADDENDUM A - SEARCH OPTIMIZATION SERVICES
Onsite Optimization Services
Offsite Optimization Services