DI Terms and Conditions - Cars Commerce

Terms and Conditions of Service for Dealer Inspire Inc. and Dealer Inspire Solutions Canada Inc.

Applicability and Scope.
1. These Terms and Conditions (these “Terms”) govern the products and services provided by Dealer Inspire Inc., and Cars.com Holdings Canada Inc. (collectively “Dealer Inspire”), a Delaware corporation to the customer (“Customer”) as stated on the accompanying Order (as defined below) signed or executed by the Customer.
2. From time to time, Dealer Inspire and Customer may execute one or more order forms (each, an “Order”) that will be accepted by the parties. As applicable, each Order will specify: (i) the type(s) and amount(s) of Deliverables (defined below), (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the Order, and/or (iv) the start and end dates of the campaign (if applicable).
3. Acceptance of the Order and these Terms will be deemed the earlier of (i) date of written (which, unless otherwise specified, for purposes of these Terms, will include paper, or e-mail communication) approval of the Order by Dealer Inspire and the Customer, (ii) the display of the first Ad (as defined below) impression by Dealer Inspire, unless otherwise agreed on the Order, or (iii) the services deployment date of a contracted Deliverable. Notwithstanding the foregoing, modifications to the originally submitted Order will not be binding unless approved in writing by both Dealer Inspire and the Customer.
4. The Order, these Terms, all Policies (as defined in Section 8) and any exhibits, schedules or addenda that are incorporated herein or within an Order (collectively, this “Agreement”) comprise the entire agreement between Dealer Inspire and the Customer (each, a “Party” and collectively, the “Parties”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. To the extent a term of the Order conflicts with these Terms, the term in the Order shall control.
5. These Terms will prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or any other terms. Provision or performance of Deliverables to the Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend the Agreement.
6. These Terms may be changed at any time by Dealer Inspire and Customer will be notified of any such changes by an update of the new Terms posted on Dealer Inspire’s website. Customer’s continued use of the Services, products, and Deliverables after the posting of any amended Terms shall constitute Customer’s agreement to be bound by any such changes. Dealer Inspire may modify, suspend, discontinue or restrict the use of any portion of this website without notice or liability.
7. For Reynolds & Reynolds DMS Data Access and Usage Services, the Dealer Inspire Reynolds and Reynolds Terms Apply.
8. For participating General Motors (“GM”) dealer customers, the GM Dealer Services Agreement applies.
9. PLEASE BE ADVISED THAT THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
Dealer Inspire Specific Terms.
1. Definitions.
  1. “Ad” means any advertisement provided by Customer.
  2. “Advertising Materials” means artwork, copy, or active URLs for Ads.
  3. “Ad Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Dealer Inspire’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
  4. “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
  5. “Applicable Law” means, with respect to any person or entity, all laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person or entity and his, her or its business, including but not limited to dealer licensing laws; Federal Trade Commission (“FTC”) laws and regulations; laws and regulations relating to false or deceptive advertising; laws and regulations relating to motor vehicle advertising; the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, as amended; Canada’s Anti-Spam Legislation, as amended; the Telephone Consumer Protection Act, as amended; the Gramm-Leach-Bliley Act, as amended; the Fair Credit Reporting Act, as amended; laws and regulations related to automotive finance and sweepstakes or other promotions; and all laws and regulations applicable to the processing of User Data under the Agreement, including but not limited to the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., and all amendments thereto, including the California Privacy Rights Act of 2020, and any implementing regulations or guidance issued by the Attorney General of California.
  6. “Cars.com Properties” are websites specified on an Order that are owned, operated, or controlled by Cars.com or its Affiliates.
  7. “CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
  8. “CPC Deliverables” means Deliverables sold on a cost per click basis.
  9. “CPL Deliverables” means Deliverables sold on a cost per lead basis.
  10. “CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
  11. “Dealer Inspire Properties” are websites specified on an Order that are owned, operated, or controlled by Dealer Inspire or its Affiliates.
  12. “Deliverable(s)” means any product or service (including any deliverables related thereto) identified in the Order or that Dealer Inspire otherwise provides to Customer, including the following: (a) website creation services including but not limited to: (i) services used to grow the Customer’s organic visibility (impressions, clicks, or other desired actions) on search engines to efficiently drive more high-quality traffic to their websites (e.g., keyword research and strategy, website content creation and optimization, technical website optimization, and local business profile optimization); (ii) media services, including but not limited to search advertising, display advertising, social advertising, and video advertising, which Dealer Inspire’s internal teams build and optimize; and (iii) ongoing creative and website maintenance services provided to the Customer to maintain digital marketing; and (b) a la carte services such as chatbox functions, comparison vehicle shopping functions; and other related products and services.
  13. “Digital Advertising Payments” means payments made by Dealer Inspire on behalf of Customer to third-party advertising platforms (e.g. Google, Bing, or Meta), which shall be included on Customer’s invoice for reimbursement to Dealer Inspire.
  14. “DMS” means Customer’s dealer management system, if applicable.
  15. “DMS Data” means dealer management systems, which may contain personally identifiable financial information supplied by Customer’s DMS provider on behalf of the Customer and not otherwise collected by or supplied to Dealer Inspire.
  16. “Network Properties” means websites specified on an Order that are not owned, operated, or controlled by Dealer Inspire, but on which Dealer Inspire has a contractual right to serve Ads.
  17. “Policies” means all policies, notices, and/or other documentation provided by Dealer Inspire to the Customer from time to time, including but not limited to any and all Dealer Inspire advertising policies.
  18. “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
  19. “Sites” means each Dealer Inspire Properties, Network Properties, including any updates to the applicable URLs), and any mobile, private-labeled, co-branded or other versions of such Sites, and any other websites operated by or on behalf of Dealer Inspire, regardless of URL.
  20. “Third Party” means an entity or person that is not a party to an Order.
  21. “Third Party Ad Server” means a Third Party that will serve Ads.
2. Ad Placement Positioning.
  1. Compliance with Order. Dealer Inspire will comply with the Order, including all Ad placement restrictions, except as set forth in Section 2(e)(iii), and will create a reasonably balanced delivery schedule. Dealer Inspire will have sole discretion for purchases of ad inventory, will choose all Third Party vendors/publishers, contract directly with such Third Parties, and will control timing of all Ads.
  2. Editorial Adjacencies. Dealer Inspire acknowledges that its Customers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the Order. Dealer Inspire will use commercially reasonable efforts to comply with any editorial adjacency guidelines with respect to Ads that appear on Cars.com Properties, although Dealer Inspire will at all times retain editorial control over the Cars.com Properties. If Customer reasonably believes their Ads are placed adjacent to content that violates this Section, Customer must promptly notify Dealer Inspire of such alleged violation. Dealer Inspire will review the alleged violation, and at its sole discretion, may make commercially reasonable efforts to correct such violation within 10 business days. If such correction materially and adversely impacts such Order, Customer and Dealer Inspire will negotiate in good faith mutually agreed changes to such Order to address such impacts. Notwithstanding the foregoing, Customer acknowledges and agrees that it will not be entitled to any remedy for any violation of any editorial adjacency guidelines resulting from: (i) Ads placed at locations other than the Cars.com Properties, or (ii) Ads displayed on properties that Customer is aware, or should be aware, may contain content in potential violation of any editorial adjacency guidelines. For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Dealer Inspire will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Customer’s sole remedy for Dealer Inspire’s breach of such obligation will be to submit written complaints to Dealer Inspire, which will review such complaints and remove user-generated content that Dealer Inspire, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
3. Modification of Digital Advertising Spend. The amount and allocation of spend related to Digital Advertising Spend can be modified on a monthly basis at the discretion of the Customer by notifying Dealer Inspire in writing via email. Absent specific written instructions from the Customer, Dealer Inspire reserves the right to determine the allocation of digital marketing funds across multiple platforms. Monthly reporting will be provided to the Customer to fully disclose the detailed allocation of funds and results per platform. Platforms may include Google, Bing, Facebook, or other platforms including platforms affiliated with Dealer Inspire such as Cars.com Properties.
4. Reporting.
  1. Dealer Inspire will provide confirmation to Customer, either electronically or in writing, stating whether the components of the Order have begun delivery.
  2. Where Dealer Inspire is serving the campaign, Dealer Inspire will make reporting available monthly, either electronically or in writing.
  3. Notwithstanding anything to the contrary, Dealer Inspire shall not be responsible or liable for failing to meet its reporting requirements provided if Dealer Inspire is unable to produce reports as a direct or indirect result of a Third Party vendor.
5. Ad Materials.
  1. Submission. Customer will submit Advertising Materials pursuant to Section 2(b)(ii) in accordance with Dealer Inspire’s then-current Policies.
  2. Ownership. Customer warrants and represents that Customer obtained all necessary and appropriate releases, licenses, consents, and the like for use of any Customer provided Advertising Materials to Dealer Inspire for use in connection with the Dealer Inspire services. Customer further represents and warrants that the use of Customer provided Advertising Materials on and in connection with the services will not misappropriate, infringe or otherwise violate any intellectual property or any other proprietary rights of any third party and the use thereof will not constitute false advertising, any other unfair business practice, or defame, disparage or violate the rights of publicity or privacy of any person. Customer further represents and warrants that any Customer provided Advertising Material utilized or uploaded by an agency on behalf of Customer also has all the necessary and appropriate releases, licenses, consents, and the like for the reasonably anticipated and intended use of the Customer provided Advertising Material on and in connection with the services.
  3. Creative Invoices. Dealer Inspire will begin billing Customer for an Order upon confirmed receipt of Customer’s Advertising Materials. If Advertising Materials are not received, Dealer Inspire is not required to guarantee full delivery of the Customer Order.
  4. Modification Rights. Dealer Inspire may edit or modify the submitted Ads, including but not limited to, resizing the Ad or editing for timing, without Customer’s approval in Dealer Inspire’s sole discretion.
  5. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
  6. Trademark and Logo Usage. Dealer Inspire may mention Customer and the relationship between Dealer Inspire and Customer in Dealer Inspire’s marketing collateral, website, and other promotional and marketing materials.
6. Website Design Services. For website design services, Dealer Inspire will invoice Customer as follows: (a) within five (5) business days of Customer providing approval of the Deliverables, which may be provided by clicking on an authorization link supplied by Dealer Inspire; or (b) forty-five (45) days from the receipt by Dealer Inspire of the signed Order, whichever is earlier, unless otherwise provided for in writing by Dealer Inspire. A one-time setup fee and other monthly recurring fees shall be due upon Customer’s execution of the Order.
7. Other Deliverables. For Deliverables other than website design services, Dealer Inspire will provide Customer with an invoice for any monthly fees, which must be paid either net fifteen (15) or net thirty (30) days from the date of the invoice for website or digital advertising related services, respectively. A one-time setup fee shall be due upon Customer’s execution of the Order as applicable.
8. Dealer Management Services (“DMS Services”). For orders that include DMS Service connection, Customer must provide Dealer Inspire with information necessary for Dealer Inspire and any agents and contractors working on Dealer Inspire’s behalf to access the DMS and extract Customer information, and Customer represents that such provision is legal and authorized by the relevant DMA provider or any other applicable third-party vendor. In the event of such request, Customer expressly consents to Dealer Inspire and its agents and contractors accessing and extracting information from the DMS on an ongoing basis as may be required for the continued provision of Dealer Inspire Services, until such consent is revoked with written notice to Dealer Inspire. Subject to Applicable Law, Dealer Inspire will have a reasonable period of time to cause such revocation.
9. Digital Advertising Spend. As applicable, the amount and allocation of spend related to digital advertising identified on the Order can be modified on a monthly basis at the discretion of the Customer by notifying Dealer Inspire in writing via email. Monthly reporting will be provided to the Customer to disclose the detailed allocation of funds and results per platform. Dealer Inspire must receive any disputes regarding the amount or allocation of spend from the Customer within 15 days from delivery of the monthly report. Absent specific written instructions or written spend disputes from the Customer, Dealer Inspire reserves the right to determine the allocation of digital marketing funds across multiple platforms. Platforms may include Google, Bing, Facebook or other platforms including platforms affiliated with Dealer Inspire such as Cars.com Properties. When a Third Party platform is engaged, Customer agrees to all applicable terms of use, ad agreements, and any other applicable policies, including but not limited to, the Microsoft Bing Ads Agreement found here: https://about.ads.microsoft.com/en-us/resources/policies/microsoft-bing-ads-agreement
10. Suspension. In the event an invoice is not timely paid, Dealer Inspire may, at its option and in addition to any other remedies it may have at law or otherwise, suspend or terminate any or all Deliverables and support under this Agreement until all past due balances are paid.
11. Disputes. To the extent that Customer disputes any invoice on the basis of an alleged error in such invoice, Customer must raise such dispute specifically in writing to Dealer Inspire within sixty (60) days of the invoice date, otherwise such dispute will be waived. Customer will remain responsible for the timely payment of the portions of an invoice that are not subject to dispute.
12. SEO Services. For all search engine optimization (“SEO”) services, Customer acknowledges that such SEO services may include, but are not limited to, pre-planning business activities such as market research and website analysis. SEO services will be deemed started, and billing will commence, as of the earlier of either (a) initial business planning or (b) receipt of SEO invoice.
13. Digital Advertising Payments.
  1. Invoicing. Invalid clicks reported during the current active month shall be applied to Customer’s account only for that current month, as calculated by the Third Party advertisement platform. If digital advertising payments exceed the amount of digital advertising spend authorized in advance by Customer, Dealer Inspire reserves the right to invoice Customer for overages not to exceed 3% of the authorized amount for authorized balances less than $5,000, and 1% for authorized balances equal to or greater than $5,000.
  2. Payment. Digital Advertising Payments must be reimbursed by check or ACH; exceptions; to this payment policy may be made only on an individual basis with written approval by the performance manager and may be subject to an additional management fee.
14. Custom Material. In the event an Order includes creative services or other content creation by Dealer Inspire and for the benefit of Customer, and creation of such custom content is not governed by a separate Order or written agreement, upon payment in full for all amounts due under such applicable Order, Dealer Inspire conveys and transfers all right, title and interest in and to any custom creative content (“Custom Material”) provided to Customer or completed by Dealer Inspire, its affiliate(s) or its third-party vendor prior to the effective date of termination and pursuant to such Order. For clarification, in no event will Custom Material include any Dealer Inspire Intellectual Property or content created by Dealer Inspire but rejected by Customer for any reason. Dealer Inspire may specify the amounts due for such Custom Material as a “Creative Fee” or other similar line item on the Order. In the event Dealer Inspire creates, produces or delivers any custom creative content which is rejected by Customer, Dealer Inspire shall retain all right, title and ownership in and to the same. Any Custom Material which integrates certain Dealer Inspire Intellectual Property shall remain the property of Dealer Inspire. Upon termination or expiration of the Term and/or relationship with Dealer Inspire, the Customer shall promptly delete all Dealer Inspire Intellectual Property from its systems and notify all subcontractor and/or processors to do the same. At no point does Dealer Inspire grant any rights in its Dealer InspireIntellectual Property to Customer.
15. Data; Prizm. Customer acknowledges and agrees that it shall be responsible for establishing the terms governing its use of any information (including statistical, analytical and consumer data) generated via its use of the Deliverables or otherwise collected by it in connection with its use of the Deliverables, including, without limitation, Customer’s use of the Prizm reporting feature. Customer further acknowledges and agrees that, with respect to any Deliverables provided by Dealer Inspire via a web-based platform, as software-as-a-service or similar manner, Dealer Inspire may include terms and conditions applicable to end-user’s use of such Deliverables or a privacy policy applicable to any information (including statistical, analytical and consumer data) generated or otherwise collected by Dealer Inspire in connection with its provision of the Deliverables, and that such terms shall govern such use and such collection and use of information as between Dealer Inspire and such end-users. To the extent that Customer receives omni-channel marketing services and/or data analytic services from Dealer Inspire, which may include digital display, retargeting, direct mail services, and website reporting and analytics, Customer agrees to allow Dealer Inspire to place a tracking pixel on its current Dealer Inspire website for tracking and customer matching purposes (“Tracking Services”). Dealer Inspire and its third-party agents will utilize this data to facilitate customer matching and the execution of these campaigns. DEALER INSPIRE DISCLAIMS AND CUSTOMER EXPRESSLY WAIVES ANY CLAIMS AGAINST DEALER INSPIRE IN CONNECTION WITH SUCH ACTIVITIES INCLUDING THE PLACEMENT OF TRACKING PIXELS ASSOCIATED WITH TRACKING SERVICES. Customer acknowledges and agrees that it grants Dealer Inspire, its affiliates, and parent organization, the ability to share Customer’s Prizm report with Customer’s dealer group and/or OEM as may be needed for the provision of Deliverables. Customer may revoke such dealer group’s access to Customer’s Prizm account by emailing support@Dealer Inspire.com. Customer consents to Dealer Inspire granting access to applicable parties, including its affiliates and parent organization, to Customer’s Prizm accounts until such notice is received by Dealer Inspire.
16. Updates to Deliverables. Dealer Inspire may launch new services and products, combine services and products, modify services and products or discontinue services and products for its Customers (“Deliverables Update”). In the event of a Deliverables Update, current Customers who are in good standing may continue to receive the Deliverables under an existing Order, but no new Customers will be eligible to sign up for new terms of the previous Deliverable. Dealer Inspire reserves the right to transition all existing Customers of a service and product to a Deliverable Update upon reasonable notice to the impacted Customers.
17. DISCLAIMER OF LIABILITY FOR DIGITAL ADVERTISING SERVICES. NEITHER DEALER INSPIRE NOR ANY OF ITS SERVICE PROVIDERS, EMPLOYEES, OR AGENTS OFFER OR PROVIDE ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THIRD-PARTY ADVERTISING PLATFORMS, AND THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER’S OBLIGATION TO REIMBURSE DEALER INSPIRE FOR DIGITAL ADVERTISING PAYMENTS SHALL NOT BE CONTINGENT OR LIMITED IN ANY WAY AS A RESULT OF THE RESULTS OBTAINED FROM THE USE OF DIGITAL ADVERTISING SERVICES.
18. Development Credit. Customer shall acknowledge Dealer Inspire as the developer of the Deliverables through the use of a footer on each website page created by Dealer Inspire, which footer shall read “Websites by Dealer Inspire” and shall also include a hyperlink to one of the Sites. Dealer Inspire shall provide Customer with sufficient information to create and update such hyperlink. Such development credit will remain at all times during the Term.
19. Maintenance and Support. During the Term, Dealer Inspire agrees that at no extra cost to Customer, Dealer Inspire shall promptly deliver to Customer all software containing bug fixes or error corrections to any software or other deliverables relevant to the Deliverables provided hereunder to Customer. In connection with such maintenance, Customer shall provide Dealer Inspire with such information as Dealer Inspire reasonably requires in a reasonable time to allow Dealer Inspire to provide such maintenance. Dealer Inspire shall have no responsibility for the maintenance of any third-party software or hardware, other than as provided for herein.
Beta/Pre-Release Products.
1. Beta/Pilot. From time to time, Dealer Inspire may provide a Beta and/or Pilot Programs (the “Beta Program”) to make pre-release software, features, and products (“Beta Products”) available to Customer if Customer opts in to the Beta Program. The Beta Program provisions of this Agreement will only apply to Customer’s use and access to the Beta Products. Dealer Inspire may make Beta Products available to Customer from time to time, provided that Dealer Inspire may modify or discontinue Beta Products at any time for any reason without liability or notice to Customer.
2. DUE TO THE NATURE OF BETA PRODUCTS, DEALER INSPIRE PROVIDES ALL BETA PRODUCTS AS-IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY. Customer acknowledges and agrees that any use of Beta Products will be at its own risk and that Customer has no obligation to use the Beta Products.
3. DUE TO THE NATURE OF BETA PRODUCTS AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, NEITHER DEALER INSPIRE NOR ITS PARENTS, AFFILIATES OR SUBSIDIARIES, THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SHAREHOLDERS, OR OWNERS WILL BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, AND/OR PUNITIVE DAMAGES, EVEN IF DEALER INSPIRE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES FOR CUSTOMER’S PARTICIPATION IN THE BETA PROGRAM AND USE OF THE BETA PRODUCTS. IN NO EVENT WILL DEALER INSPIRE’S TOTAL LIABILITY TO CUSTOMER FOR CUSTOMER’S USE OF THE BETA PRODUCTS AND PARTICIPATION IN THE BETA PROGRAM EXCEED THE AMOUNT OF FIVE ($5.00) DOLLARS. THE FOREGOING LIMITATIONS WILL APPLY TO ALL DEALER INSPIRE BETA PRODUCTS AND BETA PROGRAMS EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Fees.
1. Approval. Dealer Inspire’s performance under the Agreement is explicitly conditioned upon credit approval of Customer. Customer authorizes Dealer Inspire to obtain a credit report to determine, in accordance with the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., the creditworthiness of the Customer. For any fees which were not discussed in Section 2(i), Customer agrees to pay all fees specified in applicable Orders within 30 days of the date of the invoice. Any one-time setup fee is due upon Customer’s execution of the Order. All payments for Dealer Inspire Inc. products and services will be made in U.S. Dollars. All payments for Dealer Inspire Inc. products and services sold under Cars.com Holdings Canada Inc. will be made in Canadian Dollars. If payment is made by credit card or ACH, Customer expressly authorizes Dealer Inspire and/or its designated billing vendor to draw items (checks, electronic fund transfers, charge card) for the purpose of paying the fees set forth on the Order. If any fees are not paid to Dealer Inspire by Customer when due, Dealer Inspire may charge and Customer will pay interest on unpaid amounts at the rate of 1.5% per month, or the highest rate permitted by Applicable Law (as defined in Section 8), whichever is less. Customer agrees to pay all of Dealer Inspire’s costs, including attorneys’ fees, incurred in collecting overdue amounts. Customer is further responsible for NSF charges, wire fees, credit card fees and similar costs. Customer will be solely responsible for payment of any taxes applicable to its payment for and/or use of the Deliverables other than taxes on Dealer Inspire’s income. Dealer Inspire reserves the right to increase fees or terminate Deliverable subscriptions with 30 days’ notice to Customer, provided that Customer will have the right to terminate the Agreement immediately following an increase by providing Dealer Inspire with written notice of cancellation prior to the end of such 30-day period.
2. Co-op. If Customer requests the assistance of Dealer Inspire in any manufacturer co-op advertising program, Customer remains solely responsible for complying with all terms, conditions, and requirements necessary for reimbursement under such program.
Term and Termination.
1. Term. The “Initial Term” means the period specified on the Order (or if no such period is specified, 12 months), commencing upon the later date of i) completion of all implementation required for a Deliverable to “go-live” and be publicly accessible, ii) the delivery of a Deliverable, or iii) commencement of performance of a Deliverable.
2. Renewal. Upon the expiration of the Initial Term, this Agreement shall automatically renew on a month-to-month basis (each, a “Renewal Term”) until either Party provides at least 30 days’ written notice of termination to the other Party. For purposes of clarity, if either party wishes to terminate the Agreement after 12 months, the earliest the parties may terminate this Agreement is after 13 months (a party may not give 30 days’ notice of termination during the Initial Term). The Initial Term and all Renewal Terms are collectively referred to herein as the “Term”.
3. Termination for Breach. Either Party may terminate this Agreement in the event the other Party is in material breach of this Agreement, including Customer’s failure to comply with Policies (defined below) and such breach is not cured by the Customer within 30 days of its receipt of written notice of such breach from Dealer Inspire. Furthermore, Dealer Inspire reserves the right to modify or discontinue any Deliverable at any time and may suspend performance for Customer’s failure to pay any invoice when due or when Customer fails to comply with any of the Policies. This Agreement shall automatically terminate without any action or notice by either Party, and all amounts due to Dealer Inspire under this Agreement shall accelerate and become immediately due and payable, if: (i) Customer commences a voluntary bankruptcy case under Title 11 of the United States Bankruptcy Code or the corresponding provisions of any successor laws; (ii) anyone commences an involuntary bankruptcy case against Customer under Title 11 of the United States Bankruptcy Code or the corresponding provisions of any successor laws and either (A) the case is not dismissed by midnight at the end of the 60th day after commencement or (B) the court before which the case is pending issues an order for relief or similar order approving the case; (iii) a court of competent jurisdiction appoints, or Customer makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in Title 11 of the United States Bankruptcy Code or the corresponding provisions of any successor laws) for Customer or all or substantially all of its assets; or (iv) Customer fails generally to pay its debts as they become due (unless those debts are subject to a good faith dispute as to liability or amount) or (iv) acknowledges in writing that Customer is unable to pay its debts as due. To be effective, notice of termination by the Customer must be emailed to pendingservice@cars.com and include the Customer name and product(s) being terminated.
4. Termination for Convenience. If Customer terminates the Agreement without cause prior to the end of Initial Term, then Customer will pay Dealer Inspire a termination fee equal to the remaining outstanding fee for any relevant Deliverable(s) through the end of the Initial Term. To be effective, notice of termination by the Customer must be emailed to pendingservice@cars.com and include the Customer name and product(s) being terminated. Dealer Inspire and Customer may revoke any termination and in this event the Agreement will remain in full force and effect. Customer agrees to reimburse Dealer Inspire for all costs expended or incurred by Dealer Inspire and all charges paid by Dealer Inspire to or irrevocably due from DealerInspire to vendors and suppliers. Customer will remain liable to DealerInspire for amounts due for any custom content or development (“Custom Material”) provided to Customer or completed by Dealer Inspire or its third-party vendor prior to the effective date of termination. For Orders that contemplate the provision or creation of Custom Material, Dealer Inspire will specify the amounts due for such Custom Material as a separate line item. Customer will pay for such Custom Material within 30 days from receiving an invoice therefore.
Warranties.
1. Dealer Inspire Warranties and Covenants. Dealer Inspire represents and warrants to Customer that: (i) Dealer Inspire has the requisite power and authority to enter into and perform its obligations under this Agreement; and (ii) Dealer Inspire has the necessary rights to license the Deliverables to Customer under this Agreement.
2. DISCLAIMER OF WARRANTIES REGARDING DELIVERABLES. FOR ALL U.S CUSTOMERS, NEITHER DEALER INSPIRE NOR ANY OF ITS SERVICE PROVIDERS, EMPLOYERS, OR AGENTS OFFER OR PROVIDE ANY EXPRESS OR IMPLIED WARRANTY THAT THE DELIVERABLES WILL BE UNINTERRUPTED, MERCHANTABLE, ERROR FREE OR WILL PERFORM IN ANY PARTICULAR FASHION, NOR THAT THE DATA PROVIDED WILL BE ACCURATE OR COMPLETE OR THE USE OR PERFORMANCE OF THE PRODUCTS WILL GENERATE ANY PARTICULAR RESULTS OR SALES. NEITHER DEALER INSPIRE NOR ANY OF ITS SERVICE PROVIDERS, EMPLOYEES, OR AGENTS OFFER OR PROVIDE ANY EXPRESS OR IMPLIED WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE DELIVERABLES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE DELIVERABLES SHALL BE PERFORMED AND DELIVERED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. DISCLAIMER OF WARRANTIES REGARDING THIRD PARTY PRODUCTS. FOR ALL U.S CUSTOMERS, DEALER INSPIRE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIRD-PARTY VENDOR PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. COMPANY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OF ANY WRITTEN MATERIAL, ACCOUNTS, DESCRIPTIONS OR DISCLOSURE BY THIRD PARTIES ON THE SITES.
4. Customer Warranties. Customer represents and warrants to Dealer Inspire that (i) it is has the requisite power and authority to grant the licenses set forth herein; (ii) neither the use of any notice, photographs, images, video, animation, film, illustrations, drawings, charts, maps, indexes, other graphical and visual materials, music, sound, narration and other audio materials or other works owned or controlled by Customer (but excluding any text or other content created in whole or in part by Dealer Inspire) (“Customer Contentor any trademarks, service marks, trade names, logos or symbols owned, licensed or used by Customer (“Customer Marks nor Dealer Inspire’s exercise of any licenses granted herein shall not (A) infringe upon any copyright, patent, trademark, or other proprietary rights of any third party; (B) violate any Applicable Law (hereafter defined) or non-proprietary third-party rights; (C) constitute false advertising or any other unfair business practice; or (D) defame, disparage, or violate the rights of publicity or privacy of any person; (iii) the Customer Content is and shall at all times during the Term be suitable for reproduction and timely delivered to Dealer Inspire in the form specified by Dealer Inspire; (iv) the Customer Content does not contain and shall at no time during the Term contain any material that is unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically, or otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any Applicable Law; (v) the materials provided to Dealer Inspire including, without limitation, Customer Content, descriptive claims, warranties, guarantees, nature of business, are true, complete and accurate in all respects; and (vi) all Customer Content has been legally obtained and that Customer has proper authorization and permission to share the Customer Content with Dealer Inspire in compliance with Applicable Law
Customer Marks, Customer Content and Licensure.
1. Customer Content. Customer shall provide Dealer Inspire, upon reasonable notice, all Customer Content reasonably required to provide the services and Deliverables. Customer acknowledges and agrees that the term “Customer Content” shall not refer to or include any text or other Custom Materials created in whole or in part by Dealer Inspire and that any such Custom Materials shall be Dealer Inspire Intellectual Property (as defined below).
2. Rights Reserved. Dealer Inspire reserves the right to refuse to include in the Deliverables any Customer Content that Dealer Inspire in its sole discretion deems offensive or otherwise inappropriate or which may violate Applicable Law; provided, however, that Dealer Inspire’s right to refuse to include any Customer Content shall not be deemed to diminish, eliminate, or otherwise modify Customer’s obligations in respect of the Customer Content.
3. License to Customer Content. Customer grants Dealer Inspire a perpetual, non-exclusive, worldwide, royalty-free license to access, edit, store, enhance, modify, adapt, translate, copy, reproduce, distribute, transmit, broadcast, publish, perform and display publicly, prepare derivative works of, and otherwise use the Customer Content in connection with Dealer Inspire’s performance under this Agreement, including with respect to its delivery and performance of the Deliverables.
4. Location Data. To the extent that Customer receives managed services from Dealer Inspire vendor(s) (“Distribution Vendor”) for the publication of its location-related data on multiple directory websites (“Location Data”), Customer grants to Distribution Vendor a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited, sublicensable (through multiple tiers of sublicenses) license to use, reproduce, prepare derivative works of, display and distribute the Location Data for any and all purposes in connection with the provision of such services.
5. Customer Mark. Customer shall provide to Dealer Inspire all trademarks, service marks, trade names, logos, and symbols (“Customer Marks”) that the Customer wishes for Dealer Inspire to incorporate into or use on or in connection with the Deliverables. Customer may provide reasonable written instructions for use of the Customer Marks to Dealer Inspire. Dealer Inspire agrees that it will use the Customer Marks in the form provided by Customer (and, if applicable, the licensors of such Customer Marks) and in a manner that otherwise complies in all material respects with any such instructions provided by the Customer. In the event Customer wishes to modify the form of any Customer Mark or instructions for use thereof, Customer may provide written notice to Dealer Inspire of such modifications, and Dealer Inspire shall thereafter use commercially reasonable efforts to implement such modifications within a commercially reasonable time. Customer hereby grants to Dealer Inspire a perpetual, non-exclusive, worldwide, royalty-free license to use the Customer Marks in connection with its provision of the Deliverables. Dealer Inspire may mention Customer and the relationship between Dealer Inspire and Customer in Dealer Inspire’s marketing collateral, website, and other promotional and marketing materials.
6. License to Feedback. Customer hereby grants and agrees to grant to Dealer Inspire the perpetual, worldwide, irrevocable, royalty-free, transferable and sublicensable right and license to use, copy, publicly display, and make derivative works from any ideas, suggestions or other feedback about the Deliverables (or any other Dealer Inspire’s services or products) provided by Customer for any purpose, without payment or other compensation to Customer or any end user, forever and throughout the world.
Compliance with Applicable Law and Policies.
1. Compliance with Applicable Law. Customer covenants to Dealer Inspire that at all times during the Term that (i) Customer has the requisite power and authority to enter into and perform its obligations under this Agreement, (ii) Customer will comply with Applicable Laws and Policies, and (iii) any Customer Content provided to Dealer Inspire does not infringe or violate any right of any third party. Dealer Inspire may suspend or terminate its performance under this Agreement without notice or penalty in the event of Customer’s failure to comply with this Section.
2. Compliance with Policies. Dealer Inspire may provide policies, notices, and/or other documentation on its Sites (“Policies”). Such Policies must be reviewed by the Customer. The Parties understand and acknowledge that the Policies reflect the standard website services package offered by Dealer Inspire. Customer covenants to Dealer Inspire that at all times during the Term, Customer will comply in all material respects with the Policies. Dealer Inspire may suspend or terminate its performance under this Agreement without notice or penalty in the event of Customer’s failure to comply with all Policies.
3. No Unauthorized Access. Subject to the limited license granted herein with respect to the Deliverables, Dealer Inspire grants the Customer a limited license to access and make use of this Site and the content thereof for legitimate purposes. By accessing this Sites, the Customer agrees that it will not use any automated mechanism, which may include but is not limited to such mechanisms as web robots, crawlers or spiders to access, query or otherwise collect information or scrape data from the Sites, and will not use any device or routine that would interfere with the proper working of the Sites. Unless otherwise permitted by Dealer Inspire, any alteration, modification, reproduction, redistribution, retransmission, redisplay or other use of any content in any other manner or for any other purpose constitutes an infringement of Dealer Inspire’s intellectual property and other proprietary rights. The Customer may not reproduce, copy, perform, create derivative works from, republish, upload, post, retransmit, or redistribute in any way whatsoever any content from the Sites or Deliverables, or any other website owned or operated by Dealer Inspire, without the prior written permission of Dealer Inspire. Use of the content or any portion thereof on any other website is expressly prohibited without prior written permission from Dealer Inspire. The Customer shall not remove or modify any copyright notice or trademark legend, author attribution or other notice placed on or contained within the content.
4. Use of Management Tools. Customer acknowledges and agrees if it receives Tracking Services from Dealer Inspire or a third party, Customer will be required to either 1) license and implement a Customer provided consent management tool (“CMT”) on its websites using Tracking Services, or 2) license and use the website package CMT. If Customer does not use the website package CMT or implements a third party CMT, Dealer Inspire will provide limited and basic website services which lack functionality and Tracking Services. For all non website package CMT(s), the Customer agrees and understands that Dealer Inspire’s shall have no responsibility and liability to the Customer or the third party CMT provider. Customer further acknowledges and agrees that any claim which arises from the third party CMT shall be handled by the Customer and its third party CMT provider and not Dealer Inspire. Customer understands that by choosing the website package CMT, Customer must utilize the required default settings as provided by the website package CMT for compliance with Applicable Law. To the extent that Customer customizes, combines, edits, and/or modifies the default settings in the website package CMT, Customer understands that neither the CMT provider nor Dealer Inspire shall be liable for any consequences or claims of the customizations and modifications, and Customer shall take on all liability for the modifications.
Indemnification.
1. Customer Indemnification. Customer shall indemnify, defend and hold harmless Dealer Inspire and its directors, officers, contractors, agents, and employees (collectively, “Dealer Inspire Indemnitees”) against any and all claims, actions, damages, judgments, losses, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Damages”) incurred by Dealer Inspire Indemnitees relating to or arising out of any claim or threats of claims related to (i) any third-party claim that the Customer Content or Customer Mark, or any use of the Customer Content or Customer Mark in accordance with this Agreement, infringes or misappropriates any third party’s intellectual property rights, (ii) any third-party claim based on Customer’s (a) negligence or willful misconduct; (b) use of the Deliverables in a manner not authorized by this Agreement; (c) use of the Deliverables in combination with data, software, hardware, equipment, or technology not provided by Dealer Inspire or authorized by Dealer Inspire in writing; (d) violation of this Agreement; (e) modifications to the Deliverables not made by Dealer Inspire; (f) a violation of a third party’s privacy rights; (g) Customer Content; (h) violation of Applicable Laws or Policies; (i) customized setting usage (other than the recommended default settings) of the Dealer Inspire CMT; or (j) misuse of Customer CMT, provided, that Customer may not settle any third-party claim against Dealer Inspire unless Dealer Inspire (in its sole discretion) consents to such settlement, and further provided that Dealer Inspire will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
2. Dealer Inspire Indemnification. Subject to the limitations set forth in herein, Dealer Inspire shall indemnify, defend and hold harmless Customer and its directors, officers, and employees (“Customer Indemnitees”) against any Damages incurred by Customer Indemnitees, solely to the extent and proportion such Damages arise from any third party claim based on (a) Dealer Inspire’s gross negligence or willful misconduct; (b) Dealer Inspire’s breach of Confidentiality, or (c) Dealer Inspire’s willingly violation of any applicable law, regulation, judicial or administrative action, or the right of a third party (except as directed or approved by Customer).
Intellectual Property.
1. Ownership. As between the Parties, Dealer Inspire and its licensors or successors shall own the entire, right, title, and interest in the Deliverables, software, services, Dealer Inspire Properties, and any technology developed by it, whether under this Agreement or otherwise, or that it uses to provide the Deliverables, including but not limited to any software, routines, algorithms, documentation, code, formulas, website platforms, website pages, page design, layout, associated techniques, CGI, PERL scripting, and any other works of expression (including literary works, audio works and visual works), inventions, discoveries, processes, methods, compositions, and techniques, and any and all intellectual property rights therein (the “Dealer Inspire Intellectual Property”). For the avoidance of doubt, the foregoing shall not be deemed to apply to any Customer Marks or Customer Content.
2. Licenses. Upon Dealer Inspire’s timely receipt of any and all fees due and payable by Customer, Dealer Inspire shall grant to Customer, for the Term, a limited, non-exclusive, non-sublicensable, non-transferrable, worldwide, license to use the Dealer Inspire Intellectual Property included in, embodied by or otherwise used to provide the Deliverables (the “Licensed Intellectual Property”) solely for Customer’s own business use in operating the Deliverables in a manner that complies with this Agreement (the “Licensed Purposes”). As to any software included in the Licensed Intellectual Property, Customer’s license thereto shall be limited to the executable form of such software; as to any tangible work of expression included in the Dealer Inspire Intellectual Property, Customer, in its exercise of its license thereto, may not reproduce, transmit, and distribute such Licensed Intellectual Property except as strictly necessary for the Licensed Purposes. This license shall continue for the Term and shall automatically and immediately terminate upon the expiration or termination thereof.
3. Restrictions. Dealer Inspire does not provide any implied rights of use or access to the Deliverables or any Dealer Inspire Intellectual Property outside of the Licensed Purpose. Without limiting the foregoing, except to the extent expressly permitted in this Agreement, Customer shall not (i) create derivative works based on the Licensed Intellectual Property; (ii) modify the Licensed Intellectual Property except to update certain modules identified by Dealer Inspire in writing; (iii) operate or attempt to operate any of the Deliverables on a “service bureau” or “timeshare” or “software as a service” basis, provide services on behalf of or as a service to third parties or otherwise provide copies of any of the Deliverables or make any of the Deliverables available to any third parties; (iv) rent, lease, market, or sublicense the Licensed Intellectual Property to third parties, except pursuant to a separate, written distribution agreement with Dealer Inspire; (v) directly or indirectly disassemble, decompile or otherwise reverse engineer any of the Deliverables for any purpose, including to gain access to the source code of any such software or accessing any component of software included in the Licensed Intellectual Property; or (iv) otherwise use, access, manipulate or modify any of the Deliverables for any purpose other than the Licensed Purpose. Customer consents to the use of technological security devices to regulate use of the Deliverables and agrees not to attempt to directly or indirectly circumvent, reverse-engineer, or duplicate such devices.
4. Revocation for Unlicensed Use. Customer’s use of the Deliverables shall be limited to the Licensed Purposes granted herein. In the event that Customer uses any of the Deliverables or any derivative works for any purpose other than the Licensed Purpose, or violates a limitation or restriction within this Agreement, or Customer owes Dealer Inspire undisputed outstanding fees, Dealer Inspire may immediately revoke any, outstanding balances will become immediately due, and all licenses granted herein and shall be entitled to pursue all remedies under law and equity. Any such revocation shall be effective immediately upon Dealer Inspire’s notice to Customer.
Confidentiality.
1. Confidentiality Obligations. Each Party receiving (the “Receiving Party”) business, technical or financial information hereunder relating to the other Party’s business (including but not limited to non-public information regarding features, functionality and performance of the Deliverables) (“Confidential Information”) from the other Party (the “Disclosing Party”) agrees: (i) to take reasonable precautions (but in any event, no precautions no less stringent than those used to protect its own Confidential Information) to protect such Confidential Information, and (ii) not to use (except in performance of the Deliverables or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information disclosed to the Receiving Party that (a) is or becomes generally available to the public through no fault of the Receiving Party, (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by Applicable Law; provided that if a disclosure is required by Applicable Law, the Receiving Party first shall give written notice to the Disclosing Party as soon as practicable and made a reasonable effort to permit the Disclosing Party to obtain a protective order. At the end of the Term, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies.
2. Rights and Ownerships. Dealer Inspire or its service provider owns and shall own and retain all right, title and interest in and to (a) the Deliverables, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Deliverables or support, (c) any documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Dealer Inspire in the course of performing the Deliverables, and (d) all intellectual property rights related to any of the foregoing.
Limitation of Liability (for all U.S Customers).
1. Limitation of Liability. NEITHER DEALER INSPIRE NOR ITS PARENTS, AFFILIATES OR SUBSIDIARIES, NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SHAREHOLDERS, OR OWNERS SHALL BE LIABLE TO THE CUSTOMER IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, FOR ANY:
  1. INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE DELIVERY OR PERFORMANCE OF DELIVERABLES HEREUNDER, FROM ANY CAUSE OR CAUSES INCLUDING BUT NOT LIMITED TO DIRECT DAMAGES, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHER CAUSE OR CAUSES WHATSOEVER, IN AN AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT PAID BY OR ON BEHALF OF THE CUSTOMER TO DEALER INSPIRE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM;
  2. INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, AND/OR PUNITIVE DAMAGES, EVEN IF DEALER INSPIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
  3. LOST PROFITS, LOST REVENUES, LOSS OF PRODUCT, LOSS OF REPLACEMENT POWER, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES AND/OR BENEFIT OF THE BARGAIN DAMAGES.
2. DEALER INSPIRE SHALL NOT BE LIABLE FOR ANY CLAIMS OR DEMAND AGAINST CUSTOMER BY ANY THIRD PARTY EXCEPT IF OTHERWISE PROVIDED HEREIN. DEALER INSPIRE SHALL NOT BE LIABLE FOR THE ACTIONS OF ANY SUB-CONTRACTOR OR AGENT OF DEALER INSPIRE.
3. CUSTOMER AGREES THAT NO ACTION AGAINST DEALER INSPIRE MAY BE BROUGHT UNLESS THE ACTION IS BROUGHT WITHIN THE LESSER OF: (I) ONE (1) YEAR OF THE DATE OF THE EVENT THAT RESULTED IN THE DAMAGES AND (II) THE SHORTEST LIMIT OF TIME PERMITTED UNDER APPLICABLE LAW.
4. Customer Waiver. FOR ALL U.S CUSTOMERS, CUSTOMER EXPRESSLY WAIVES ANY CLAIM THAT IT MAY HAVE AGAINST DEALER INSPIRE BASED ON ANY THIRD-PARTY VENDOR PRODUCT LIABILITY OR INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO ANY THIRD-PARTY VENDOR PRODUCT AND ALSO WAIVES ANY RIGHT TO INDEMNIFICATION FROM DEALER INSPIRE AGAINST ANY SUCH CLAIM MADE AGAINST CUSTOMER BY ANOTHER PARTY. CUSTOMER FURTHER EXPRESSLY WAIVES ANY CLAIM THAT IT MAY HAVE AGAINST DEALER INSPIRE BASED ON (x) ANY CLAIM THAT THE USE OR PERFORMANCE OF THE PRODUCTS FAILED TO GENERATE ANY PARTICULAR RESULTS OR SALES OR THAT THE PRODUCTS DID NOT PERFORM IN ANY PARTICULAR FASHION WHATSOEVER; or (y) ANY CLAIM RELATING TO OR ARISING OUT OF REVIEWS OR ANY OTHER WRITTEN INFORMATION, STATEMENTS, COMMENTS OR OPINIONS, MATERIAL, ACCOUNTS, DESCRIPTIONS OR DISCLOSURE BY THIRD PARTIES ON THE SITES.
  
  *If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
  
  THE FOREGOING CALIFORNIA WAIVER DOES NOT AFFECT ANY LIABILITY OR LIMITATION OF DAMAGES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, SUCH AS TORTIOUS ACT WHICH IS INTENTIONAL OR THE RESULT OF GROSS NEGLIGENCE.
5. Customer’s Acts or Omissions. If Dealer Inspire’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Dealer Inspire shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Third Party Services.
1. Google Analytics. As applicable, Dealer Inspire will create a new Google Analytics instance for Customer to provide the services and Deliverables under the Order and the Agreement (“GA Instance”). Unless directed by Customer in writing, Dealer Inspire will configure the GA Instance retention period to fourteen (14) months for data which is associated with cookies, user identifiers, or advertising identifiers. For Customers which receive services from a Dealer Inspire affiliate and subsidiary that also requires a Google Analytics instance or already has a Google Analytics instance set up, Customer agrees to allow Dealer Inspire to access the GA Instance for Dealer Inspire services and its affiliates and subsidiaries’ services. The Customer consents and agrees to the provision of a Dealer Inspire Google Analytics script added to Customer’s site in order to provide the services under the Order and Agreement. Upon request, the Customer will be granted the role of ‘Analyst’ access to this data (no edit/manage users will be granted). With the approval of the Customer and upon request, Dealer Inspire will provide third parties with a role of ‘Analyst’ access to this data. Dealer Inspire will determine the conversions/key events in the Dealer Inspire Managed Google Analytics account in its sole discretion. Upon request by Customer following the termination or expiration of all Orders, Dealer Inspire will grant Customer full admin access to the GA Instance. NOTWITHSTANDING ANYTHING TO THE CONTRARY WITHIN AN ORDER OR THIS AGREEMENT, DEALER INSPIRE DISCLAIMS AND CUSTOMER EXPRESSLY WAIVES ANY CLAIMS AGAINST DEALER INSPIRE IN CONNECTION WITH GOOGLE ANALYTICS, THE GA INSTANCE, AND ALL ACTIVITIES AND SERVICES WITHIN THIS SECTION.
2. Facebook. Facebook advertising may process pixel conversion events from iOS devices using Aggregated Event Measurement in response to the Apple Inc. AppTracking Transparency framework. For purposes of delivery and measurement of the performance of Facebook advertising campaigns via such Aggregated Event Measurement, it may be necessary to verify Customer’s website domain. Customer expressly consents to Dealer Inspire, as its representative, verifying Customer’s domain on its behalf by adding a DNS TXT record or HTML file to such domain. DEALER INSPIRE DISCLAIMS AND CUSTOMER EXPRESSLY WAIVES ANY CLAIMS AGAINST DEALER INSPIRE IN CONNECTION WITH ALL SUCH ACTIVITIES WITHIN THIS SECTION.
3. Reynolds & Reynolds. If the Customer uses a Reynolds & Reynolds DMS or similar Reynolds system, Customer agrees to the application of those additional terms and conditions located at www.Dealer Inspire.com/terms-and-conditions/Reynolds (or such other URL as may be updated from time to time).
4. Third Party Sites and Services. If the Customer uses any third party services or links to any other sites from their website, Customer will be responsible and liable for all third party services and links.
General Provisions.
1. Independent Contractors. The Parties are independent contractors. Neither Party is an agent, representative, or partner of the other Party, and these Terms shall not be construed as creating a partnership, joint venture or agency relationship or granting a franchise between the Parties. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party.
2. Assignment. Dealer Inspire may assign its rights and duties under these Terms at any time to any party without notice to the Customer. Customer may not assign this Agreement or any right, obligation, interest, or benefit under this Agreement without the prior written consent of Dealer Inspire, such consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer may assign its rights and responsibilities under this agreement to its parent or an affiliate under common control upon delivery of written notice to Customer. This Agreement shall be binding on any and all successors and permitted assigns.
3. Expenses. Except as otherwise specifically provided herein, each Party shall be responsible for its own expenses incurred in performing its obligations hereunder.
4. Force Majeure. Dealer Inspire shall not be liable for any delays in delivery or performance of the Deliverables hereunder due to an act of God, action by any governmental or quasi-governmental agency, fire, flood, earthquake, strike, communicable disease outbreak, outside network difficulties (including, but not limited to, communication line failure) or other acts beyond the reasonable control of such Party (a “Force Majeure Event”), and in such an event, the Customer shall be released of its obligation to pay for any Deliverables not delivered or performed as a result of such event. Either Party may terminate this Agreement upon written notice to the other Party in the event that a material failure to deliver or perform Deliverables as a result of a Force Majeure Event continues unremedied for a period of thirty (30) days.
5. Survival. The obligations of the Parties under this Agreement that by their nature would continue beyond the expiration or termination of the Term (including, without limitation, the warranties, indemnification obligations, confidentiality requirements and ownership and property rights) shall survive any such expiration or termination of the Term.
6. Notices. Any and all notices required to be given hereunder shall be made in writing and delivered by overnight courier, facsimile, or e-mail to the following:
  
  To Dealer Inspire US or Dealer Inspire Canada:
  Dealer Inspire Inc. -or- Dealer Inspire Solutions Canada Inc. Attn: Legal Department
  300 South Riverside Plaza
  Suite 1000
  Chicago, IL 60606
  USA
  Phone: 312-601-5000
  Fax: 312-601-5755
  Email: legal@cars.com
  
  To Customer: address or any other contact information as set forth in the latest Order.
7. Dispute Resolution. For all U.S Customers, Dealer Inspire and the Customer agree that this Section shall be construed and interpreted under the Federal Arbitration Act, 9 U.S.C. Section 1, et. seq. Dealer Inspire and the Customer agree that any and all losses, actions, claims, proceedings, suits, judgments, settlements or liabilities (“Claims”) shall be submitted to final and binding Arbitration, to take place within and subject to the laws of Cook County in the the State of Illinois before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules (www.adr.org/commercial) (“AAA Rules”). Customer agrees that Claims submitted to arbitration shall be decided in a single arbitration before a single arbitrator who must be on the AAA National Roster of Commercial Arbitrators and selected in accordance with the AAA Rules. The arbitrator shall have the authority to award the same damages, including reasonable attorney’s fees, and all other relief that a court can award. Customer acknowledges and agrees that Customer voluntarily and knowingly entered into these Terms and chose to use the Site or accept the Deliverables rather than companies that offer similar services and who may not have an arbitration agreement.
8. WAIVER OF CLASS ACTION. FOR ALL U.S CUSTOMERS, DEALER INSPIRE AND THE CUSTOMER AGREE THAT ANY DISPUTES, CLAIMS AND/OR CAUSES OF ACTION ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS AND CONDITIONS OR THEIR ACCESS TO AND USE OF THE SITE AND/OR ITS PRODUCTS OR SERVICES MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND THAT SUCH CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. DEALER INSPIRE AND THE CUSTOMER AGREE THAT ANY SUCH CLAIMS OF TWO OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME CLAIM UNLESS ARISING FROM THE SAME TRANSACTION.
9. International Access. The Sites and Deliverables are provided from the United States of America and Canada. The laws of other countries may differ regarding the access and use of the Sites or the Deliverables. Dealer Inspire makes no representations regarding whether the Sites, the Deliverables, or your access or use of the Sites or Deliverables complies with Applicable Laws of any country other than the United States of America or Canada. The export and re-export of software products are controlled by the United States Export Administration Regulations, and such software may not be exported or re-exported to certain designated countries, or any country to which the United States embargoes goods. In addition, Dealer Inspire software may not be distributed to certain designated persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. If the Customer uses or accesses the Sites or the Deliverables outside of the United States of America or Canada, it is the Customer’s responsibility to ensure that its use complies with all Applicable Law and, without limiting the generality of its obligations under the indemnity provisions in these Terms, Customer shall indemnify, defend and hold the Dealer Inspire Indemnitees harmless from any Damages arising out of Customer’s use or access of any of the Sites or Deliverables outside of the United States of America and Canada.
10. Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
11. Severability; Blue Pencil. No provision of this Agreement shall be deemed unenforceable if it is subject to an interpretation that would render it enforceable. If a court of competent jurisdiction finds that any provision of this Agreement is unenforceable, in whole or in part, (a) such a finding will not disturb the validity and enforceability of the remaining provisions of this Agreement, and (b) the court shall have the authority to modify and/or “blue pencil” this Agreement in order to render it enforceable and to effect the original intent of the Parties to the fullest extent permitted by Applicable Law.
Canada Specific Provisions.
1. Applicability and Scope. To the extent Customer is an entity organized in Canada, the following provisions of this Section 14 apply and supersede the Terms herein to the extent that they are in conflict.
2. Modifications to Terms. For Québec consumers, modifications to these Terms will enter into force thirty (30) days after the publication of a revised version of these Terms or other notice on this Site, or the receipt of an email notification regarding such modifications if you are an existing Customer.
3. Copyright Agent. If you believe any materials accessible on or from the Site infringe your copyright, you may request the removal of those materials (or access to them) from the Site by submitting written notification to Dealer Inspire in accordance with the Notice and Notice Regime provided by the Copyright Act, RSC 1985, c C-42. The written notice must:
  1. state the claimant’s name and address;
  2. identify the copyright material that is alleged to have been infringed and the claimant’s interest or right with respect to that material;
  3. specify the location data (e.g., the web address or Internet address associated with the alleged infringement);
  4. specify the infringement that is alleged; and
  5. specify the date and time of the alleged infringement.
  - The written notification that you submit to Dealer Inspire must not contain:
  1. an offer to settle the claimed infringement;
  2. a request or demand, made in relation to the claimed infringement, for payment or for personal information;
  3. a reference, including by way of hyperlink, to such an offer, request or demand; or
  4. any other information that may be prescribed by regulation.
4. Governing Law. The laws of the Province of Ontario and federal laws of Canada applicable therein will govern the interpretation of this Agreement and the relationship between you and Dealer Inspire, without regard to Ontario’s conflicts of laws rules.Notwithstanding the foregoing, if you reside in Quebec, the laws of the Province of Quebec and federal laws of Canada applicable therein will govern the interpretation of this Agreement and the relationship between you and Dealer Inspire, without regard to Quebec’s conflicts of laws rules.

Date Effective: September 18, 2024