Fox Dealer TERMS AND CONDITIONS
Please read the following conditions carefully as they govern the provision of services by FoxDealer ("we," “us”, "our" or "FoxDealer") to your Dealership (referred to as “Dealer,” “you,” “your” or “Dealership”) upon submission of either or both of the following: (i) any FoxDealer Order Form, and/ or (ii) a sign-up via an on-line form to FoxDealer and FoxDealer acceptance of such Form(s) (each an "Order Form”).
1. Introduction and Scope of Services. FoxDealer Interactive Corp. ("FoxDealer", "we", "us", or "our") will provide the Dealer(s) identified in the FoxDealer Order(s) with services relating to the development, hosting and maintenance of a website(s) and/or implementation of certain Internet technology (collectively the “Service”), in conformance with the Fox Dealer Interactive Solutions (the “Packages”), and Additional Services, selected by you, subject to your acceptance of and compliance with these FoxDealer Dealer Terms and Conditions ("Terms and Conditions"), the terms and conditions, if any, of the Services in which you participate, including any documents referenced therein (each, "Service Terms"), and the terms and conditions of any FoxDealer Order Form you enter into that specifically references these Terms and Conditions and/or applicable Service Terms (each, a "Order Form") (collectively, "Agreement"). In the Agreement, "Participating Dealer" means any dealership that is owned or controlled by Dealer that participates in a Service hereunder, and (iv) "FoxDealer Entities" means FoxDealer, its Affiliates, and its and their officers, directors, consultants, contractors, agents, attorneys, employees, partners, and third-party service providers.
In the event of any conflict between the terms of this Agreement and the terms of an Order Form, the terms of that Order Form shall control. Hand-written modifications to an Order Form will not be effective or binding on FoxDealer unless initialed by legal counsel for FoxDealer. From time to time FoxDealer may elect to reflect in the form of an email or other electronic communication to Dealership (i) the specific advertising and marketing services, or the widgets or tools, that FoxDealer will be providing, and/or (ii) Dealership's request for a modification of the terms of an Order Form (including a modification to the amount to be expended by Dealership for a Service). Upon the acknowledgement or consent by Dealership to the provision of those services, widgets and/or tools, or to such modification, that electronic communication will be deemed an "Order Form" (or a modification to an Order Form) for purposes of this Agreement.
2. Fees. You will pay us the fees set forth in the Order Form(s) for each Service that you participate in ("Fees"). The set-up fees are payable in full immediately upon submission of a completed Order Form. The monthly service fees will begin accruing upon activation (as defined in Section 3 below) and are due and payable in advance on the first day of each calendar month. Your first monthly payment due us will include: (i) in the event the Packages and Additional Services are activated on a date other than the first day of a calendar month, prorated service fees for the initial partial calendar month of operation, and (ii) the service fees for the first full calendar month of the Term (as defined herein). Additional Customer Support hours used over the amount provided in the Packages and Additional Services you selected will be charged at $100 per hour. We will charge you a late fee of $100 for each month, or part thereof, in which a monthly service fee remains unpaid, such late fee being intended to partially reimburse us for our administrative costs incurred in processing late payments. We reserve the right to modify our monthly fees at any time during the Term, provided that: (i) we give you thirty (30) days advance written notice of each such modification, and (ii) you shall have the right to terminate this Agreement at any time prior to expiration of such notice period.
a. Delinquent Fees. FoxDealer may cease rendering any or all of the Services, without notice to you, in the event you are delinquent in the payment of any Fees or in breach of any provision of this Agreement, but no such action shall terminate the term of any Order Form unless such term is terminated in accordance with Section 3; and no such action shall terminate this Agreement.
b. Credit Card Authorization. By submitting the Order Form, including the credit card information, you hereby authorize Fox Dealer to charge your credit card for the Amount of the Packages and Additional Services you selected on any and all submitted Order Form(s). The first payment will be made after receipt of this authorization. Any payment returned unpaid will be subject to the same charge and treated in the same manner as a returned paper check. These withdrawals will be made every month throughout the term of the contract or until Termination of the contract, in accordance with the provisions in Section 3. Requests to terminate automatic authorization of your credit card may require 7 to 10 business days to process and become effective.
3. Term and Termination. The term (“Term”) of this Agreement shall commence immediately upon the submission of an Order Form and shall continue for the “Initial Agreement Term” as indicated on the Order Form. The “Initial Agreement Term” will begin on the date the Fox Dealer Interactive Platform is activated (which shall be deemed to have occurred by not later than 45 days from the signed date on the Order Form unless otherwise agreed to by the parties in writing). At the end of the Term, the Agreement shall automatically continue on a month-to-month basis until a new Agreement is executed or the Agreement is terminated by either party upon thirty days (30) prior written notice. We may terminate the Agreement at any time during the Term upon sixty (60) days advance written notice to you. Upon termination of this Agreement, we shall cease providing our services and shall terminate operation of the Fox Dealer Interactive Solutions, and no further monthly service fees shall be due us following the effective date of termination.
a. FoxDealer has the right to terminate any Order Form immediately in the event: (i) such launch date does not occur within a reasonable time, (ii) you fail to pay any Fees when due, (iii) you otherwise breach this Agreement or any of your commitments set forth in this Agreement, the Order Form or any document referred to in the Order Form, (iv) the services to be provided by FoxDealer under this Agreement are deemed by FoxDealer or alleged or determined an appropriate governmental authority to violate any local, state or federal law or regulation, or (v) FoxDealer determines in the exercise of its reasonable discretion that you have abused any of the Services. Further, either party may terminate this Agreement immediately by written notice in the event that the other party commences a bankruptcy proceeding or is subject to appointment of a receiver over its property. Finally, we may terminate this Agreement upon five (5) business days written notice in the event that, in our reasonable judgment, your use of the Fox Dealer Interactive Solutions is in any way deceptive, misleading, unfair, or otherwise in violation of any law.
b. In the event that we elect to terminate this Agreement for any of the reasons set forth in subparagraph 4a, we shall cease providing our services and shall terminate operation of the Fox Dealer Interactive Solutions. All amounts owed to us as of the date of such termination, together with all amounts due for the balance of the then current one-year period (including service fees for the balance of such one-year period), shall be immediately due and payable to us. In the event that, following such termination of operation of the Fox Dealer Interactive Solutions, we shall elect to reactivate the Fox Dealer Interactive Solutions in response to a request from you (which election shall be in our sole discretion and shall not constitute a waiver of any rights or remedies hereunder), you agree to pay us a reactivation fee of $250.00.
c. Termination notices from Dealership must be sent by either the Owner/ Operator or General Manager of Dealership via email to ap@FoxDealer.com; no other method of notice will be effective or accepted. Sections 2 (for 90 days after termination), 4 through 18 of these Terms and Conditions, the defined terms of the Agreement, and those provisions specified in any Service Terms will survive termination of the Agreement.
4. Restrictions on Use of Information and Data. Each party represents, warrants, and covenants that it has implemented adequate administrative, procedural, technical, and physical safeguards designed to (i) provide for the security and confidentiality of non-public personal information provided, collected, and/or received in connection with the Agreement ("Non-Public Personal Information"), (ii) protect against any anticipated threats or hazards to the security or integrity of Non-Public Personal Information, and (iii) protect against unauthorized access to or use of Non-Public Personal Information which could result in substantial harm to a Customer. In addition, each party will notify Customers of security breaches as required by applicable law.
5. Confidentiality. "Confidential Information" means information disclosed by you to us or us to you, either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as "Confidential," "Proprietary," or some similar designation. Information communicated orally and/or other intangible information will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure.. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession. The receiving party will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing party, except to employees, contractors, agents, or Affiliates, in each case who have a legitimate need to know such Confidential Information and are bound to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, or (b) use, reproduce, or copy any Confidential Information of the disclosing party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party by the disclosing party, or in connection with or as set forth in the Agreement. The receiving party may disclose Confidential Information of the disclosing party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the receiving party gives the disclosing party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Notwithstanding anything to the contrary in the Agreement, without consent, either you or we may disclose (x) the Agreement (or the existence of the Agreement) to bona fide potential investors or prospective purchasers of a portion of its assets or beneficial ownership interests provided such disclosure is subject to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, and/or (y) as required by law, including any governmental or regulatory filings.
6. Sharing of Data and Information. If one of your stores holds a franchise to sell new vehicles, FoxDealer may share data and information it obtains from you— as well as any other information concerning your websites or customers that FoxDealer may have or obtain — with the OEM who granted you that franchise and with any affiliated entities, agents and contractors of that manufacturer or distributor. In addition, if you engage or have engaged a third party (for example, a Web Provider, Inventory Provider, etc.) and have requested FoxDealer work with that third party, FoxDealer may share any such data and information with that third party. You consent to the sharing of data and information as set forth in this section.
7. Dealer-Supplied Information. You understand and agree that (i) you are responsible for the accuracy, completeness, applicability, compliance with law and regulation, and non-violation of any third party rights (collectively "Compliance") of all vehicle, dealership and other information, and/or creative content or components thereof, provided or made available to FoxDealer (by you and your agents) for use by FoxDealer in connection with the advertising and promotion of you or your vehicles, (ii) FoxDealer does not have the ability or obligation to determine the Compliance of that information, and accordingly, you will bear the consequences if the information is not Compliant as provided or made available, and (iii) FoxDealer does not have the ability or obligation to determine whether the photos provided or made available for a particular vehicle you offer for sale are of that vehicle or are "stock" photos, and accordingly does not label as "stock" in any vehicle advertisements any of the photos provided or made available by you; and you will bear the consequences to the extent such photos are not Compliant. In some states the advertised price for a vehicle is required to include any dealer document/processing/vehicle preparation fee or similar charge. If you are offering used vehicles for sale through FoxDealer in one of those states, you are responsible for assuring that the advertised price you provide to FoxDealer for display includes all such charges.
8. Representation and Warranties; Indemnification. We represent and warrant that we have the power and authority to enter into this Agreement. We further represent and warrant that any material provided by us and incorporated into the Fox Dealer Interactive Solutions will not violate any third party Intellectual Property Rights. In the event that we utilize any material licensed from third parties, we represent and warrant that we have secured all necessary consents and permissions to do so. Except with respect to the foregoing, we make no representation or warranty with respect to the content of the Fox Dealer Interactive Solutions (by way of example only, whether the advertising claims about your business set forth in any website created hereunder conform to applicable federal, state, and local laws), and we shall not be liable for any claims or damages resulting therefrom. You represent and warrant that you have the power and authority to enter into this Agreement and to grant the rights granted herein. You further represent and warrant that you own all right, title and interest in and to the material provided by you for incorporation into the Fox Dealer Interactive Solutions, or that you have a license with a sufficient right of sublicense, to so use, reproduce, and/or distribute such material, and that the use of such material in the Fox Dealer Interactive Solutions will not infringe the Intellectual Property Rights, or any other rights of any kind whatsoever, of any third parties. You further represent and warrant that you have the right to grant us access to, and use of, any ad planners and similar product materials utilized by you from time to time in your business, and that such access and use by us in connection with this Agreement will not contravene the rights of any third parties. You further represent and warrant that any content provided by you for incorporation into the Fox Dealer Interactive Solutions will conform to applicable federal, state, and local laws. Each party will defend, indemnify, and hold the other (together with its officers, directors, members or shareholders, agents and contractors) harmless from all losses, costs, or damages arising out of the other party’s breach of any of its representations or warranties set forth above. To the extent that you maintain any commercial general liability insurance policy in effect during the Term, including coverage for products liability, advertising injury, and/or errors and omissions, you agree to include us (and our officers, directors, members and/or shareholders, agents and contractors) as additional insured’s on such policies.
9. Limitation of Liability. ALL SERVICES ARE PROVIDED TO YOU WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOU HAVE AN OBLIGATION TO MITIGATE YOUR DAMAGES. YOUR SOLE REMEDY FOR OUR BREACH OF ANY WARRANTIES HEREUNDER IS AS SET FORTH HEREIN. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF ONE MONTH’S FEES ACTUALLY PAID BY YOU TO US, FOR SERVICES PROVIDED HEREUNDER, AND IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES, ATTORNEY’S FEES AND OTHER EXPENSES ARISING FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY THE CONTENT PROVIDED BY YOU UNDER THIS AGREEMENT OR ANY OTHER CLAIMS RELATING TO THE CONTENT OF THE FOX DEALER INTERACTIVE SOLUTIONS (EXCEPT AS SPECIFICALLY OTHERWISE PROVIDED IN PARAGRAPH 5, ABOVE). IN NO EVENT SHALL WE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, INDEMNITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. WE WILL NOT BE LIABLE TO YOU FOR INTERRUPTIONS OR DEGRADATIONS OF SERVICES DUE TO LACK OF INTERNET CAPACITY OR EQUIPMENT LIMITATIONS, MODIFICATIONS, REPAIRS, UPGRADES OR RELOCATIONS. WE SHALL NOT BE LIABLE TO YOU FOR INTERCEPTION OF DATA THROUGH THE INTERNET BY THIRD PARTIES. WE HAVE NO CONTROL OVER, ARE NOT RESPONSIBLE FOR, AND WILL NOT BE LIABLE TO YOU FOR, THE ACTIONS OF INTERNET SYSTEMS AND SERVICE PROVIDERS OR ACTS OF GOD THAT CREATE DELAYS OR INTERRUPTIONS OF SERVICES. FOR PURPOSES OF THIS PARAGRAPH, “WE” SHALL NCLUDE OUR OFFICERS, DIRECTORS, MEMBERS AND/OR SHAREHOLDERS, AGENTS, CONTRACTORS, AND EMPLOYEES. THE APPLICATION OF ANY OF THESE PROVISIONS MAY BE CONTRARY TO THE LAWS OF YOUR STATE OF RESIDENCE; IN SUCH CASE, ONLY THOSE PROVISIONS LAWFUL IN YOUR STATE SHALL APPLY TO YOU.
10. Representations. You represent, warrant, and covenant that you (i) have the corporate or other applicable right, power and authority to enter into the Agreement, (ii) are a licensed automobile dealership pursuant to applicable laws, and (iii) with respect to new vehicle sales, possess the required franchises with the applicable manufacturer to represent each brand you sell.
11. Dealership License. Dealership hereby grants to FoxDealer a non-exclusive, worldwide, royalty-free license to use, copy, encode, store, archive, distribute, transmit and publicly display Dealership logos, marks, trademarks and/or other Dealership intellectual property (the "Marks") provided to and used by FoxDealer in performing the Services. FoxDealer is further granted the right to sub-license the Marks to its third party service providers, affiliates or other parties providing services under this Agreement. Such right to use said Marks shall be limited to those uses reasonably required to perform the services under this Agreement. Dealership further grants FoxDealer all additional rights and licenses (and the right to sub-license such rights and licenses) reasonably required to perform the Services.
12. Notices. We may give notices to you by email, first class mail or facsimile or other contact information as provided by you in the Order Form. You must ensure that your contact and account information is current and correct, and promptly notify us in writing of any changes to such information. You will send all notices to us regarding updates to contact information via firstname.lastname@example.org.
13. Press Release. Neither you nor we will issue any press release regarding the Agreement unless mutually agreed upon in writing.
14. Choice of Law; Venue. The terms of the Agreement and any dispute relating thereto will be governed by the laws of the State of California, without regard to conflict/choice of law principles. You and we agree to submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California.
15. Miscellaneous. The Agreement constitutes the entire agreement and understanding between you and us regarding the subject matter contained herein and supersedes all other agreements, understandings, negotiations, representations, claims, and communications in all forms of media, written and oral, regarding the subject matter contained herein. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar effect. Neither you nor we will have any liability under the Agreement by reason of any failure or delay in the performance of your or our obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond as applicable, your or our reasonable control. You and we are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and us. Except as otherwise set forth in the Agreement, the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Neither you nor we may assign, sublicense or transfer the Agreement or any right or duty under the Agreement to another party, in whole or in part, without, as applicable, your or our prior written consent; provided however, either you or we may assign the Agreement without permission in connection with the reorganization, reincorporation, merger or sale of all or substantially all of the assets or stock of you or us. Your or our rights and obligations under the Agreement will bind and inure to the benefit of, as applicable, your or our permitted successors and assigns. Any rights not expressly granted in the Agreement are reserved by you or us, as applicable, and all implied licenses are disclaimed. Headings of Sections are for convenience only, and are not intended to affect the interpretation or construction of any other provision of the Agreement. As used in the Agreement, the word "including" is a term of enlargement meaning "including without limitation" and does not denote exclusivity, and the words "will," "shall," and "must" are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. All definitions apply both to their singular and plural forms, as the context may require. Upon prior notice, which may be provided by email, we may change the Agreement at any time, and such revised Agreement will supersede and replace the earlier Agreement. Executed counterparts of the Agreement will each be deemed originals, whether exchanged via mail, facsimile, or electronically. Services and obligations to be performed by FoxDealer hereunder may be performed by a FoxDealer Entity (each of which is bound by confidentiality and non-use provisions substantially similar to those contained herein).
16. Electronic Signatures Effective. a. By signing or entering your name into our electronic signature service and clicking on the "Click to Sign" or similar button, you create an electronic signature to the Agreement, establishing a valid, legal contract. In doing so, you agree to accept these terms and conditions and any other agreement contained or referenced herein; you also agree that we may supply you a copy of the Agreement in electronic form. Please print or save a copy of the Agreement for your records. You also may choose to receive a copy of the Agreement in non-electronic form at any time by submitting a request to us at the address set forth in Section 12, above. You may choose to withdraw your consent to receive the Agreement in electronic form. Withdrawing your consent to receive the Agreement in electronic form does not change your existing obligations to us under the Agreement. Instead, withdrawing your consent simply means that you wish to have our relationship with you governed by a non-electronic form of the Agreement. If you wish to withdraw your consent to receive the Agreement in electronic form and to instead enter into a non-electronic form of the Agreement, please send a letter and self-addressed, stamped envelope to the address set forth in Section 12, above. We then will send you a non-electronic form of the Agreement. Your withdrawal of consent will become effective when we mail to you a copy of the non-electronic form of Agreement, at which point our relationship will be governed by the terms of such Agreement. In either instance, the obligations that you incur pursuant to the electronic form of the Agreement, prior to the effective date of the withdrawal of your consent, will remain unchanged until they are fully discharged by you. c. In order to access and retain the electronic Agreement, you must have access to the Internet, either directly or through devices that access Web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer and modem or other access device). We will notify you of any changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.