Dealer-FX Terms of Service

These Terms of Service (the “Terms of Service”) are incorporated by reference and form part of the Order Form entered into by Dealer-FX Group, Inc. (“Dealer-FX”) and the customer (“Dealership”) named in the applicable Dealer-FX Order Form.

BY SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THESE TERMS OF SERVICE, THE DEALERSHIP ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS OF AND IS AGREEING TO COMPLY WITH AND BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN THE ORDER FORM, INCLUDING THE Dealer-FX PRIVACY POLICY.

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1. Definitions

1.1 In these Terms of Service

(a)            “Agreement” means the Order Form and these Terms of Service.

(b)            “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation), applicable to the Processing of Personal Information under the Agreement.

(c)            “Dealership” means the customer named in the applicable Order Form.

(d)            “Dealership Data” means the data submitted or uploaded by or on behalf of Dealership to the Service, including the data of Dealership’s employees, contractors or customers.

(e)            “DMS” means a dealership’s Dealer Management System.

(f)             “DMS Fees” means the fees charged by Dealer-FX for the implementation, set-up and integration of the DMS with the Service and any monthly charges or fees charged by the DMS provider and which are passed through to the Dealership by Dealer-FX.

(g)            “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Dealer-FX generally makes available to subscribers to the Service, as the case may be.

(h)            “Fees” means the fees specified on the applicable Order Form, including monthly Subscription Fees,  DMS Fees, any third party access fees, and fees for Professional Services, as specified in the Order Form.

(i)              “Initial Setup Start Date” means the date specified in the applicable Order Form on which Dealer-FX commences the setup and implementation of the Service in the Dealership’s environment.

(j)              “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

(k)            “Order Form” means (i) an electronic form provided by Dealer-FX for ordering Service Subscriptions, Support Services, and/or Professional Services, or (ii) a written document executed by Dealer-FX and Dealership in respect to Dealership’s purchases of Service Subscriptions, Support Services, and/or Professional Services from Dealer-FX.

(l)              “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.

(m)           “Professional Services” means the implementation, set-up, integration, training and other professional services provided by Dealer-FX or a Dealer-FX authorized services partner, pursuant to an Order Form and which services, the fees therefor and any other terms and conditions applicable thereto shall be described in the Order Form.

(n)            “Service Availability” means the number of minutes in a month that the Dealership is able to log in to its Dealer-FX Account and key components of the Service are operational as a percentage of the total number of minutes in such month, excluding downtime resulting from (a) scheduled maintenance or emergency maintenance that is necessary to prevent imminent harm to the Service, (b) events of force majeure, (c) malicious attacks on the Service, (d) issues associated with the Dealership’s network or equipment, (e) inability to deliver the Service because of acts or omissions of Dealership or (f) suspension, and/or termination of Dealership’s access to or use of the Service in accordance with this Agreement.

(o)            “Service” means the cloud-based hosted version of the Software for which Dealership is granted rights of access and use in accordance with this Agreement, where specified in an Order Form, which resides on a server operated by or on behalf of Dealer-FX and which will be remotely accessible over the Internet by Dealership and its Users, including any ancillary mobile applications and other services available in connection therewith, as such Service may be updated from time to time by Dealer-FX in its sole discretion.

(p)            “Software” means Dealer-FX’s proprietary ONE Platform™ and Service Scheduling software program(s) in machine-readable object code format and other related software specified in an Order Form, including the Documentation for such program(s) and which is made available by Dealer-FX as a Software-as-a-Service offering for use by Dealership in accordance with the terms hereof.

(q)            “Subscription” means the right granted by Dealer-FX to Dealership to access and use the Service in accordance with and subject to the terms of this Agreement for the Subscription Term specified in the applicable Order Form.

(r)             “Subscription Fee” means the fee payable by Dealership for a Subscription as set out in the Order Form.

(s)            “Subscription Term” means the period of time that Dealership is authorized by Dealer-FX to access and use the Service (including the Documentation) as specified in the Order Form.

(t)             “Support Services” means the technical support services for the Service provided by Dealer-FX as described in Section 6.1 hereof.

(u)            “User” means an employee or contractor of Dealership to whom Dealership (or Dealer-FX at Dealership’s request) has supplied a user identification and password.

2.  Right to Use the Service

2.1           Service.  Dealer-FX agrees to provide and perform the Service as described in the Order Form on a non-exclusive basis and grants to the Dealership and its Users a non-exclusive, non-transferable Subscription to access and use the Service. Dealership shall be responsible for each User’s compliance with this Agreement.

2.2           Subscription Provided for a Single or Multiple Dealership Location. The Service is solely for the Dealership’s own internal use and is restricted to the Dealership’s current location. Unless otherwise agreed to and specified in the applicable Order Form, each Subscription is specific to and may only be used for and by one Dealership location. If the Dealership has more than one DMS instance, the Dealership will need a separate Subscription for each DMS instance. If a Dealership is sharing a DMS between multiple Dealership locations, additional DMS Fees will apply.

2.3           Modifications and Upgrades. Dealership acknowledges that Dealer-FX may from time to time issue modified or upgraded versions of the Service, including any mobile applications, and in certain cases, Dealer-FX may automatically and remotely upgrade the version of the Service and mobile applications that Dealership and its Users are using on their respective computers, network servers and mobile devices. Dealership consents (on behalf of itself and its Users and customers) to any such automatic and remote upgrading on the computers and network servers and on mobile devices of its Users and customers. Dealership acknowledge that it will need to clear the cache from time to time to enhance system and application performance, as and when instructed by Dealer-FX.

2.4           Reservation of Rights. Dealer-FX and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software, Service and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Software and subject to all of the provisions of this Agreement. Dealership shall keep the Service and Documentation free and clear of all liens, encumbrances and/or security interests.  Subject to the limited rights expressly granted in this Agreement, Dealer-FX reserves all rights, title and interest in and to the Service and Documentation. No rights are granted to Dealership pursuant to this Agreement other than as expressly set forth in this Agreement.

2.5           Restrictions.  Dealership shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Service or any part of the Service, including but not limited any component which comprises the Service, but not including any output from the Service; (b) knowingly interfere with service to any of Dealer-FX’s other customers, users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software, Service and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Service or Documentation in any form to any person without the written consent of Dealer-FX; (f) remove any proprietary notices, labels, or marks from the Service or Documentation; (g) create any “links” to or “frame” or “mirror” of the Service or any portion thereof; (h) use the Service to create, collect, transmit, store, use or process any Dealership Data that: (y) Dealership does not have the lawful right to create, collect, transmit, store, use or process, or (z) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (i) probe, scan or test the vulnerability of the Dealer-FX system or network or breach any security or authentication measures; (j) introduce any Malicious Code into the Dealer-FX Products; or (k) use or access any Service in a manner not expressly authorized under this Agreement.

3.  Subscription Term

3.1           The initial term of a Subscription shall commence on the earlier of: (a) the first training date, or (b) ninety (90) days following the Initial Setup Start Date, and shall continue in full force and effect thereafter for the period specified in the Order Form (the “Initial Term”), unless otherwise terminated in accordance with the terms and conditions hereof. If there is no training, then the Initial Term will commence on the Initial Setup Start Date. The Initial Term and all Renewal Terms (as defined below) together shall constitute the “Subscription Term” of the Agreement.

3.2           Subscription Renewals.  The Subscription Term shall automatically renew for an additional twelve (12) months (each a “Renewal Term”) on the first day of the first month following expiration of the then current Subscription Term, unless either party provides written cancellation notice to the other at least sixty (60) days prior to the expiration of the then-current Subscription Term. Upon termination, the Dealership’s payment obligations shall terminate on the last day of the month of the then current Subscription Term.

3.3           Fee Adjustments. Not less than ninety (90) days prior to the end of the Initial Term or a Renewal Term, Dealer-FX shall give written notice to Dealership of any Fee increases applicable to the following Renewal Term. Dealer-FX reserves the right to review the Dealership’s staffing level from the prior twelve (12) months to determine if the dealership size has changed and to re-align pricing accordingly, as Subscription Fees are based primarily upon the size of a dealership.

4.  Account Activation

4.1           Account. Dealership is required to open an account with Dealer-FX (a “Dealer-FX Account”) in order to use the Service. During registration, a User will be asked to provide Personal Information in order to create a Dealer-FX Account on behalf of Dealership. Dealership shall ensure that such account activation information is accurate and complete and that such information remains current throughout the Subscription Term. Dealership is fully responsible for all activity that occurs in Dealership’s Dealer-FX Account, including for any actions taken by its Users.

4.2           Passwords. Dealership is responsible for keeping all Account passwords secure. Dealer-FX will not be liable for any loss or damage caused by or arising from a failure by Dealership or its Users to maintain the security of the Dealership’s Dealer-FX Account and password.

4.3           Dealership Responsibilities. Dealership is also responsible for all activity in the Account and for Dealership Data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with Dealership’s Account.

5.  Set-up and Implementation

5.1           Access.  Dealership will allow Dealer-FX personnel or contractors to access its premises and/or Dealership associates remotely or in person, as needed, to set-up, train on or support the Dealer-FX Product.

5.2           Dealership Hardware, Network, Bandwidth, and System Configurations. The Dealership agrees to provide  the hardware devices, wireless networks, system configurations, and internet bandwidth specified in the Dealer-FX Installation Guide. Dealership agrees to access and use, and shall ensure that all Users access and use, the Service in accordance with any and all operating instructions or procedures contained in the Documentation or that may be issued by Dealer-FX from time to time. The Dealership confirms its understanding that the Service, as a cloud-based offering, cannot perform effectively when these requirements are not met. The Dealership may order Professional Services from Dealer-FX to assist the Dealership with the configuration of the Dealership’s environment and implementation of the Service at Dealer-FX’s then current Professional Services fees.

6.  Support and Service Levels

6.1           Support. Dealer-FX shall provide the following support services: (a) telephone and email support is monitored and provided from 7:00 A.M. to 7:00 P.M. EST Monday to Friday (excluding statutory holidays in the Province of Ontario) and from 7:00 A.M. to 5.00 P.M. EST Saturday; (b) any calls or emails received outside of such hours are handled on a reasonable efforts and as available basis; (c) Dealer-FX will use commercially reasonable efforts to respond to support inquiries within one (1) business day. Dealer-FX Support can be reached via phone at 1 (844) 439-0039, via email at support@dealer-fx.com or via the website at www.dealer-fx.com.

6.2           Service Levels; Availability.

(a)            Dealer-FX will use commercially reasonable efforts to ensure that the Service will achieve Service Availability of at least 99.5% during each calendar month.

(b)            Dealer-FX reserves the right to take the Service offline for scheduled maintenance for which Dealership has been provided notice and Dealer-FX reserves the right to change its maintenance window upon prior notice to Dealership.

(c)            In the event the Service Availability drops below: (i) 98.5% for two consecutive calendar months during the Subscription Term, or (ii) 96.5% in any single calendar month, Dealership may terminate this Agreement with no penalty. Such termination will be effective as of the end of the then-current billing period and no additional fees will be charged.

(d)            This Section 6.2 describes Dealership’s sole and exclusive remedy for Service Availability failures described herein. Dealership may request the Service Availability attainment for the previous month by filing a customer support ticket with Dealer-FX.

7.  Fees and Payment

7.1           Fees. Dealership shall pay all Fees in the amounts and in accordance with the payment terms specified in each Order Form. All Fees are quoted and payable in the currency specified in the applicable Order Form. Except as expressly set forth in this Agreement, all payment obligations are non-cancellable and Fees are non-refundable.

7.2           DMS Fees and Other Third Party Costs.  All third party costs incurred by the Dealership or Dealer-FX to implement, maintain or change the Service, including any DMS Fees, shall be the obligation of the Dealership. In the event Dealer-FX incurs these costs on behalf of the Dealership, such costs shall be charged to and reimbursed by the Dealership. In the event third party costs increase or decrease, such increases or decreases may be passed onto the Dealership.

7.3           Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including without limitation sales, use, value-added, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Dealership is responsible for paying all Taxes associated with its purchases under this Agreement.  If Dealer-FX has the legal obligation to remit or collect Taxes for which the Dealership is responsible under this paragraph, the appropriate amount shall be invoiced to, and paid by the Dealership, unless Dealership provides a valid tax exemption certificate authorized by the appropriate taxing authority.

7.4           Invoicing and Payment. Fees for Subscriptions will be invoiced in accordance with the relevant Order Form and is subject to modifications as indicated in Section 3.3 hereof.  Unless otherwise stated, all undisputed fees are due upon receipt date of invoice. Dealership is responsible for maintaining complete and accurate billing and contact information with Dealer-FX.

7.5           Payment Disputes. Dealer-FX will not exercise its rights under Sections 7.6 or 7.7 hereof if Dealership is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Dealership shall initiate any payment dispute within ninety (90) days of the applicable invoice and If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity.

7.6           Late Fees and Payment Collection.  Dealer-FX may charge interest on any payment not made within thirty (30) days of the date of the invoice (the “Due Date“) due at a rate equal to the lesser of one and one half percent (1.5%) per month, or the maximum rate allowed under applicable Law. Dealership will also be liable for all collection agency fees and reasonable attorneys’ fees payable by Dealer-FX or its Affiliates in connection with enforcing Dealership’s payment obligations. In the event of any dispute with respect to an invoice, Dealership must notify Dealer-FX in writing of, and provide a good faith basis for, such dispute within thirty (30) days of the date such amounts are due. If Dealer-FX commences legal proceedings to collect any payment due to it under this Agreement and Dealership is found to be required to make such payments, Dealership will be responsible for and pay all reasonable attorney’s fees, court costs and other reasonable collection expenses incurred by Dealer-FX.

7.7           Suspension for Non-Payment. Dealer-FX may immediately suspend Dealership’s Subscription if Dealership fails to pay any Fees when due and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the rights hereunder by Dealer-FX under the preceding sentence shall not excuse Dealership from its obligation to make all payment(s) under the Agreement. Upon payment of the outstanding Fees, Dealer-FX may charge the Dealership an additional one-time DMS Implementation and an additional Upfront Fee (at Dealer-FX’s then standard rate) in order to reactivate the integration.

8.  Confidential Information

8.1           Definition of Confidential Information.  As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Service and Documentation, Dealership Data (which is the Confidential Information of the Dealership), business and marketing plans, technology and technical information, product designs, and business processes.  Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

8.2           Confidentiality.  Subject to Section 8.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Subscription Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. Dealership shall not disclose any performance, benchmarking, or feature-related information about the Service.

8.3           Protection.  Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

8.4           Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

8.5           Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

8.6           Return of Confidential Information.  Upon Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 8.6.

8.7           Data Sharing Agreements.  This Section 8 is subject to any data sharing agreement entered into between Dealer-FX and Dealership’s parent company.

9.  Dealership Data

9.1           Ownership. As between Dealer-FX and Dealership, Dealership exclusively owns all rights, title and interest in and to all Dealership Data. Dealer-FX does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Dealership Data.

9.2           Dealership Responsible for Dealership Data. Dealership is solely responsible for the accuracy and content of any Dealership data. The Dealer-FX products are intended only to facilitate the management and operation of certain aspects of Dealership’s business at the authorized Dealership location.

9.3           Data Usage.  Dealership grants Dealer-FX Group, Inc, its affiliates and service providers the right to use, and disclose in an aggregated (with data from other Dealer-FX customers) and anonymized form, during and after the Term, Dealership Data, for Dealer-FX’s business purposes, including operating, supporting, maintaining and improving Dealer-FX products and services, and developing new products and services; provided that such anonymized and aggregated data does not contain any Personal Information or other user identifier and shall not be associated with Dealership or any of its Users or customers.

10.  Protection of Personal Information

10.1           Dealership is Data Controller. In relation to all Personal Information provided by or through Dealership to Dealer-FX under this Agreement, Dealership will at all times remain the data controller and will be responsible for compliance with all applicable Data Protection Laws. To the extent that Dealer-FX processes Personal Information in the course of providing the Service, it will do so only in its capacity as a data processor acting on behalf of the Dealership and in accordance with the requirements of this Agreement.

10.2           Dealer-FX’s Processing of Personal Information. Dealer-FX shall only process Personal Information on behalf of and in accordance with Dealership’s documented instructions and Data Protection Laws for the following purposes: (i) processing in accordance with the Agreement; (ii) processing initiated by Dealership’s Users or customers in their use of the Service; and (iii) processing to comply with other documented reasonable instructions provided by Dealership where such instructions are consistent with the terms of the Agreement.

10.3           Technical and Organizational Safeguards. In connection with the provision of the Service, Dealer-FX will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Information and shall secure Personal Information with safeguards appropriate to the level of sensitivity of the Personal Information. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Personal Information by Dealer-FX personnel except (a) to provide the Service and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by Dealership. Dealer-FX shall, in connection with the provision of the Service, comply with Data Protection Laws, as well as the Dealer-FX’s Privacy Policy. Dealer-FX shall ensure that its personnel engaged in the processing of Personal Information are informed of the confidential nature of the Personal Information and have received appropriate training on their responsibilities and Dealer-FX shall take commercially reasonable steps to ensure the reliability of any Dealer-FX personnel engaged in the processing of Personal Information.

10.4           Data Breach.  Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), Dealer-FX will promptly notify Dealership of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of Dealership, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Dealership with detailed information about the Security Incident.  Dealer-FX will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Dealership in doing so; and will provide prior notice to Dealership of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Dealership’s prior written approval, not to be unreasonably withheld, conditioned or delayed.  Dealer-FX will work with and coordinate with Dealership on any such notices in any event. Dealer-FX will comply with this Section 10.4 at Dealer-FX’s cost unless the Security Incident arose from Dealership’s negligent or willful acts or Dealer-FX’s compliance with Dealership’s express written instructions.

10.5           Subcontracting. Dealer-FX may engage third party subcontractors to assist in the provision of the Service under this Agreement. Dealership authorizes Dealer-FX to subcontract the processing of Personal Information under this Agreement provided that (i) Dealer-FX shall maintain a list of such subcontractors and will provide a copy of that list to Dealership upon request; and (ii) all subcontractors will be contractually required by Dealer-FX to abide by substantially the same obligations as Dealer-FX under this Agreement to protect Personal Information, such that the data processing terms of the subcontract will be no less onerous than the data processing terms set out in this Agreement.

11.  Limited Warranties and Disclaimers

11.1           Limited Warranties. Dealer-FX hereby represents and warrants to Dealership that:

(a)            During the Subscription Term the Service will perform materially in accordance with the Documentation therefor;

(b)            the Service will not contain any Malicious Code;

(c)            it owns or otherwise has sufficient rights in the Service and Documentation to grant to Dealership the rights to access and use the Service and Documentation granted herein.

11.2           General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND DEALER-FX MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE  SERVICE; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR DEALERSHIP DATA TRANSMITTED TO OR FROM DEALER-FX VIA THE SERVICE. DEALER-FX DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET ANY OR ALL OF DEALERSHIP’S PARTICULAR REQUIREMENTS, THAT THE SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. DEALER-FX DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

11.3           Internet Connectivity Disclaimer.  Dealer-FX makes the Service available for access via the Internet. Dealership shall provide, at Dealership’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Dealership acknowledges that Dealer-FX does not control the transfer of data over communications facilities, including the Internet, and that the Service may be subject to limitations, delays and other problems inherent in the user of such communications facilities. Dealer-FX is not responsible for any delays, delivery failures or other damage resulting from such problems.

12.  Indemnification by Dealership

Dealership shall defend, indemnify and hold Dealer-FX harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Dealer-FX by a third party (a) alleging that the Dealership Data or Dealership’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any Data Protection Laws or a breach of this Agreement; or (c) caused by any negligent act or omission of Dealership or its employees, contractors or agents (each a “Dealership Indemnified Claim”); provided, that Dealer-FX (a) promptly gives written notice of the Dealership Indemnified Claim to Dealership; (b) gives Dealership sole control of the defense and settlement of the Dealership Indemnified Claim (provided that Dealership may not settle or defend any Dealership Indemnified Claim unless it unconditionally releases Dealer-FX of all liability); and (c) provides to Dealership, at Dealership’s cost, all reasonable assistance and information.

13.  Limitation of Liability

13.1           Exclusion of Indirect and Consequential Damages.  SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).

13.2           Limitation of Liability. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL DEALER-FX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY THE DEALERSHIP HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

13.3           Certain Damages Not Excluded or Limited.  NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.

14.  Suspension and Termination

14.1           Suspension or Hold of Service.  Either party may request a “Suspension” or “Hold” of the Service for reason of Force Majeure or for a reason mutually agreed upon in writing by the parties. If a Suspension or Hold is agreed upon by the Dealership and Dealer-FX, it will result in the following: (a) the DMS integration will be disabled for the duration of the Suspension and reinstated at the conclusion of Suspension at Dealership’s cost; (b) the end date of the then-current Subscription Term shall be extended by the duration of the Suspension period; and (c) the Dealership shall remain obligated for any remaining, unpaid Fees.

14.2           Termination for Cause. A party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. For the purposes hereof, a material breach by the Dealership shall include a breach of Section 5.2 and a failure to pay any Fees when due and a material breach by Dealer-FX shall include a breach of its obligations in Section 6.2 hereof.

14.3           Early Termination Fee. Dealership may terminate this Agreement without cause prior to the end of the then-current Subscription Term, however, the Dealership will be obligated to pay Dealer-FX an early termination fee equal to one hundred percent (100%) of the applicable monthly Subscription Fees, multiplied by the number of months remaining in the then-current Subscription Term.

14.4           Return of Hardware.  Upon termination of this Agreement during the Initial Term, Dealership shall immediately return any hardware which had been provided by Dealer-FX at no cost to the Dealership. Such hardware must be in good working order with minimal wear and tear. In lieu of hardware return or in case of significant wear, the Dealership shall pay Dealer-FX as follows for the hardware: (a) termination prior to mid-point of initial Subscription Term: 100% of initial equipment cost; and (b) termination after the mid-point of initial Subscription Term: 75% of initial equipment cost. On request, Dealer-FX will provide the original hardware cost.

15.  Assignment

Dealership may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of Dealer-FX. Notwithstanding the foregoing, Dealer-FX may assign this Agreement in its entirety without consent of the Dealership, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates.  Any attempt by Dealership to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

16.  General

1.1           Notices. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, immediately upon receipt. Notwithstanding the foregoing, except for notices pertaining to non-payment, notices related to any claims (including without limitation breach, warranty or indemnity) may not be delivered by email. Email notifications to Dealer-FX for non-renewal shall be sent to cancellations@dealer-fx.com and all other notices shall be sent to info@dealer-fx.com.

1.2           Force Majeure.  Neither Dealer-FX nor Dealership shall be deemed to be in default of any provision of this Agreement (other than Dealership’s obligation to pay amounts due to Dealer-FX hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, strikes, fires, epidemics or other catastrophes.

1.3           Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

1.4           Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

1.5           Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles.  The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.

1.6           Entire Agreement. This Agreement is the entire agreement between Dealership and Dealer-FX in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by entering into a written agreement with Dealer-FX.

1.7           Purchase Orders etc. The terms and conditions of this Agreement shall prevail over any pre-printed terms on any customer purchase orders and shall prevail over any other communications between the parties in relation to the Service and Documentation and the right to access and use the Service and Documentation shall be deemed to be pursuant to the terms and conditions of this Agreement.

1.8           Remedies. Except where an exclusive remedy is specified, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

1.9           Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE ORDER FORM, DEALER-FX MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING DEALERSHIP PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY DEALER-FX ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO DEALERSHIP OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).

1.10         Language of Agreement. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Any translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.

Last update: April 14, 2020