DealerX Partners LLC Terms and Conditions

LAST UPDATED: OCTOBER 10, 2023

These Terms and Conditions, including the Data Protection Addendum (“Terms and Conditions”), are entered into by and between DealerX Partners LLC (“DealerX”) and the party set forth in the Order Form (“Company”). In the event of a conflict between these Terms and Conditions and the Order Form, the Order Form shall prevail. Capitalized terms not defined in these Terms and Conditions shall have the meanings assigned to them in the Order Form.

  • 1. DEFINITIONS.
    • “Access Protocols” means login information, passwords, security protocols, and/or policies through which Authorized Users access the Services.
    • “Ad” means the advertisement based on Company Content that is used in connection with the Services.
    • “Affiliate” means any legal entity that either directly or indirectly (through one or more intermediaries) Controls, is Controlled by, or is under common Control, with a Party to this Agreement.
    • “Agreement” means the Order Form(s) and these Terms and Conditions.
    • “Applicable Laws” means any applicable local, state, federal, or international laws.
    • “Authorized User” means each of Company’s employees, agents, and independent contractors who are provided Access Protocols by DealerX.
    • “Budgets” means the amount of money allocated by Company to a specific Service offered by DealerX, as outlined in one or more Order Forms.
    • “Company Content” means the content provided by Company to DealerX or authorized by Company for DealerX to use in connection with the Services, including any Company Marks.
    • “Company Data” means any data that Company owns or licenses from a third party and provides (either itself or by a third-party) to DealerX for use in the performance of Services. For clarity, Company Data does not include any data that was or is independently obtained, provided, or derived by DealerX.
    • “Company Intellectual Property” means the intellectual and proprietary rights worldwide of Company and its licensors, including without limitation, all copyrights, trademarks, trade names, services names, logos, patents, derivative works, modifications, algorithms, taxonomies, trade secrets and other intellectual property rights therein and thereto, whether now owned or hereafter acquired or developed by Company.
    • “Company Marks” shall mean Company’s name, logos, and trademarks.
    • “Confidential Information” means confidential or proprietary information, whether in writing, orally, visually, or in any other form, tangible or intangible, including, without limitation: (a) with respect to Company, Company Intellectual Property, Company Data, tapes, mailing lists, product designs, business and marketing plans, and product strategies; (b) with respect to DealerX, DealerX Intellectual Property, pricing information, designs, capabilities, specifications, solution design documents, flowcharts, presentations, and analysis reports or results from testing of its Services, as well as any information regarding DealerX’s clients, prospects, and vendors; (c) these Terms and Conditions, including pricing information, which shall be the Confidential Information of both Parties; and (d) any other materials marked or identified as confidential or which, if not so marked or identified should, based on the nature of the information or the circumstances surrounding the disclosure reasonably considered “confidential” or “proprietary.” Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the lawful possession of the receiving Party prior to the disclosure and had not been obtained, either directly or indirectly, from the disclosing Party; (iii) is, insofar as is known to the receiving Party, lawfully disclosed by a third-party without restriction on disclosure; or (iv) has been or is independently developed by a Party without use of, or reference to, Confidential Information of the other Party. The Parties agree and acknowledge that the details of an occurrence of a data breach of the Company Data by DealerX, and the facts and circumstances related thereto, shall not be considered to be Confidential Information of either Party.
    • “Control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, and/or operations of an entity, whether through ownership of voting securities, by contract, or otherwise.
    • “Data Protection Addendum” means the terms and conditions set forth at https://dealerx.com/data-protection-addendum which may be updated from time to time based on changes necessitated by changes to Applicable Laws.
    • “DealerX Intellectual Property” means the intellectual and proprietary rights worldwide of DealerX and its licensors, including without limitation, all copyrights, trademarks, trade names, services names, logos, patents, derivative works, modifications, algorithms, taxonomies, trade secrets and other intellectual property rights therein and thereto, whether now owned or hereafter acquired or developed by DealerX.
    • “DealerX Modifications” means the updates and modifications relating to the DealerX Intellectual Property, Services, and the Company Content (other than the Company Data) that are developed pursuant to this Agreement.
    • “Feedback” means all comments, suggestions and reports, whether written or oral, furnished by Company to DealerX in connection with its access to and use of the.
    • “Order Form” means a document executed by the Parties and expressly made subject to this Agreement, including any amendments thereto that describes the Services, the applicable Budgets, and any other terms agreed to by the Parties.
    • “Party” means either DealerX or Company, as applicable.
    • “Personal Data” means any information that can be used to distinguish or trace an individual’s online or offline identity, including, without limitation, name, email address, phone number and/or postal address, as well as any information that is directly linked to these identifiers. Information that has been transformed using a one-way salt and hash, encryption, or other equivalent or more stringent cryptographic technique (e.g., tokenizing) shall (in such state) not be considered Personal Data for the purposes of this Agreement.
    • “Prohibited Data” means: (a) any government-issued identification number (e.g., Social Security Number, driver’s license number, state identification number, or passport number); (b) any financial or Company account number, including financial institution or bank account number or a credit or debit card number; (c) information describing any individual’s known health or medical condition(s), including Protected Health Information, as defined in 45 CFR 160.103; (d) Sensitive Data; (e) unique biometric data or digital representation of biometric data; (f) any individual’s full date of birth (e.g., month, date, and year); (g) maiden name of any individual’s mother; (h) any individual’s digitized or other electronic signature; (i) any username, email address or other unique electronic identifier or routing code, which is sent in combination with a personal identification code, password, or security question and answer and would permit access to any online account; or (j) any data associated with any individual under the age of eighteen (18).
    • “Representatives” means the directors, officers, employees, agents, representatives, and advisors (including without limitation, legal counsel, accountants, auditors and consultants) of a Party and its Affiliates.
    • “Services” means the data, products, features, tools and/or services, including, without limitation, advertising services that DealerX provides to Company pursuant to this Agreement and/or pursuant to one or more Order Forms.
    • “Sensitive Personal Data” means the meaning under relevant privacy or data protection laws relating to this term or any similar term (such as “sensitive personal information”) used in the Applicable Laws, or where no such laws apply, means an individual’s financial information (including financial account information), sexual preferences, medical or health information, and personal information of children protected under any child protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act).
    • “Term” means the Initial Term and any Renewal Term(s).
    • 2. SERVICES.
      • 2.1. Order Forms; Services. The Services to be provided by DealerX to Company will be set forth in one or more Order Forms. For purposes of this Agreement, Company acknowledges that DealerX may continually develop, deliver, and provide to Company ongoing innovation to the Services, in the form of new features, functionality, and efficiencies. Accordingly, DealerX reserves the right to modify the Services from time to time. Subject to Company’s compliance with this Agreement, DealerX hereby grants to Company a non-exclusive, non-transferable, and non-sublicenseable right to allow Authorized Users to access the Services. Company will use reasonable commercial efforts to maintain the appropriate administrative, technical, and physical security safeguards, and will use reasonable commercial efforts to ensure that all Authorized Users maintain similar safeguards with respect to the Access Protocols. Company will be responsible for all acts and omissions of Authorized Users. Company will notify DealerX within three (3) business days if it learns of any unauthorized use of any Access Protocols or any other known or suspected unauthorized access or unauthorized acquisition of data as a result of breach of security. Company shall provide the Company Data to DealerX in a mutually agreed upon format.
      • 2.2 Dealer Subcontractors. Company acknowledges that DealerX may use subcontractors and Affiliates to provide the Services. DealerX shall properly direct and control its subcontractors and Affiliates and shall be responsible for the acts or omissions of such subcontractors and Affiliates relating to the Services to the same extent as DealerX is responsible for its own acts and omissions under this Agreement.
    • 3. BUDGETS AND PAYMENT.
      • 3.1 Budgets. Company shall pay to DealerX the Budgets as specified in the Order Form. Unless otherwise specified, all Budgets are exclusive of applicable taxes.
      • 3.2 Taxes. Company shall pay all taxes levied in connection with this Agreement (other than taxes on DealerX’s net income) in accordance with applicable tax laws. To the extent required by law, DealerX will collect applicable taxes from the Company unless the Company provides an exemption certificate, direct pay permit, or other valid documentation. If Company is required under the laws of any jurisdiction to withhold taxes from payments made to DealerX pursuant to this Agreement, Company shall deduct and withhold the amount of such taxes for the account of DealerX. Amounts payable to DealerX shall be reduced by the amount of taxes so deducted and withheld, provided that Company transmits to DealerX an official tax certificate or other evidence of such tax obligations.
      • 3.3 Late Payment. Late payments shall accrue interest daily following the due date at the lesser of 1.5% per month or the maximum interest allowed by applicable law. If Company fails to make timely payments, DealerX may, without limiting any other remedies available to it, suspend Company’s access to the Services until Company has made payment in full to DealerX for any outstanding invoices. Company shall also pay to DealerX costs and expenses, including reasonable attorneys’ fees, incurred in the collection of any delinquent amounts.
    • 4. MEDIA AUTHORIZATIONS; COOPERATIVE MARKETING FOR AUTOMOTIVE CLIENTS.
      • 4.1. Media Authorizations. Company appoints DealerX as its agent to carry out Services hereunder, including but not limited to media placements or authorizations, on Company’s behalf, in accordance with Order Forms. DealerX will establish accounts with its media vendors and other technology and service vendors, on behalf of Company and Company will be bound by such media vendors’ applicable terms and conditions.
      • 4.2. Cooperative Marketing. At DealerX’s discretion, DealerX may provide supporting documentation and/or assets (e.g., screenshots of ad placements) that may be submitted by the Company to an OEM cooperative advertising program for reimbursement. Company agrees that DealerX is not liable for the accuracy or completeness of any information provided by DealerX as supporting documentation and/or assets towards cooperative marketing material. DealerX will not be responsible for any penalty imposed on Company by the OEM cooperative advertising program as the result of any improper or inaccurate submission.
    • 5. PROPRIETARY RIGHTS; LICENSES.
      • 5.1 Company Intellectual Property. As between Company and DealerX, Company owns and retains all right, title, and interest in and to the Company Intellectual Property, the Company Content, and the Company Data, exclusive of any updates or modifications to the foregoing, including the DealerX Modifications.
      • 5.2 DealerX Intellectual Property. As between DealerX and Company, DealerX owns and retains all rights, title, and interest in and to the DealerX Intellectual Property and the Services (excluding Company Data), including without limitation all data, technology, infrastructure, methods, and know-how in connection with the Services. In addition, the Parties agree and acknowledge that DealerX owns the entire right, title, and interest in and to the DealerX Modifications and Company hereby assigns its entire right to such DealerX Modifications to DealerX. Without limiting the foregoing, as between the Parties, DealerX will own any software functionality provided to Company that establishes the linkage between any Company Data and any third-party identifier, including any DealerX identifier, that enables such linkage.
      • 5.3 Other Intellectual Property Rights. Each Party may only access and use the other Party’s data and technology as expressly set forth herein. Nothing in this Agreement shall affect or modify either Party’s ownership rights in any pre-existing or future works, trademarks, copyrights, or technologies independently developed or created by either Party.
      • 5.4 No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Company or any third party any intellectual property rights or other right, title, or interest in or to the Services.
      • 5.5. License to Company Content. During the Term, Company grants to DealerX a non-exclusive, worldwide, license with the right to sublicense, to use, reproduce, distribute, create derivative works of, publicly display and publicly perform the Company Content in order to create Ads and to use, reproduce, distribute, publicly display and publicly perform the Ads in connection with the Services. DealerX grants to Company a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to use, reproduce, distribute, publicly perform and publicly display the DealerX Modifications solely in connection with the Ads.
      • 5.6. License to Company Marks. During the Term, Company grants to DealerX a non-exclusive worldwide license to use and reproduce the Company Marks in order to provide the Services and for DealerX’s marketing and promoting the Services. All use by DealerX of the Company Marks shall be in accordance with Company’s trademark usage guidelines and shall inure to the benefit of Company.
      • 5.7. Feedback. DealerX, in its sole discretion, may use any Feedback it receives. Company hereby grants to DealerX a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into DealerX’s products and services.
    • 6. COMPANY DATA USE AND RESTRICTIONS
      • 6.1 Restrictions on the Use of Company Data. Other than the rights expressly granted to DealerX to the Company Data by this Agreement or any Order Form, no right, title, or interest in Company Data is transferred to DealerX. DealerX shall not, and shall not authorize any third party to, process, retain, use, sell, transfer, disclose, or otherwise share Company Data for any purposes other than as directed under this Agreement or applicable Order Forms. Notwithstanding the foregoing, DealerX may disclose Company Data to its own vendors, subprocessors, or service providers solely in connection with providing the Services.
      • 6.2 Testing and Aggregate Use of Company Data. DealerX may use Company Data internally in order to perform quality control and to improve the functionality of its core Services. Such internal uses shall include enhancements of existing Services. In addition, DealerX may disclose Company Data in aggregate form that is not identifiable to Company.
      • 6.3 Enabling Individual Requests. DealerX shall promptly and in good faith take reasonable actions and provide such information and assistance as Company may reasonably request as directly related to the Services to enable Company to honor requests of individuals to exercise their rights under relevant law.
      • 6.4 Florida Domiciling. Company and/or Company’s customer(s) and/or a DealerX authorized vendor may, in some instances, access Company or DealerX data directly from DealerX servers domiciled in the State of Florida, or from servers domiciled in the State of Florida which are owned by a vendor for benefit of DealerX.
    • 7. DEALERX WARRANTY. DealerX represents and warrants that it shall perform the Services in a professional and workmanlike manner in accordance with industry practices. Company’s sole recourse and remedy for any breach of this warranty shall be to correct, re-perform, or re-deliver, as applicable, the Services in question without additional charge or, if re-performance is commercially impracticable, to refund a pro-rata portion of any Budgets pre-paid by Company for such Services based on the time such Services were not defective. Company must provide written notice to DealerX of any such claim in sufficient detail with any necessary backup information and/or documentation reasonably requested by DealerX.
    • 8. REPRESENTATIONS AND WARRANTIES.
      • 8.1 Mutual. Each Party represents and warrants to the other that: (a) it has full power and authority to enter into this Agreement and to grant the rights granted herein; (b) the execution and delivery of this Agreement have been duly authorized; (c) its execution of this Agreement does not violate any Applicable Law and does not place such Party in breach of any other agreement or covenant to which it is a party or is bound; and (d) it will otherwise comply with all Applicable Laws. Furthermore, each Party represents and warrants to the other Party that it shall promptly (and in all cases, within seventy-two (72) hours) notify the other Party in writing of any confirmed unauthorized access or acquisition of such Party’s Confidential Information, and to provide (at the notifying Party’s own expense) reasonable cooperation in investigations determining and resolving any such access or acquisition of data.
      • 8.2 DealerX. DealerX represents and warrants that: (a) except with Company’s prior written consent (email sufficing), it shall not, and shall not authorize or contract with any third-party to, resell, lease, assign, rent, sublicense, distribute, transfer, disclose, time-share, or otherwise share Company Data for any purposes other than fulfilling its obligations hereunder and under the applicable Order Form(s); and (b) it has implemented and will maintain the information security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of any applicable consumer information at issue.
      • 8.3 Company. Company represents and warrants that: (a) it fully owns or has the authority to use the Company Data and Company Content as set forth in this Agreement and any applicable Order Form(s), and that in obtaining or collecting the Company Data, it did not violate any Applicable Law, or the rights of any third-party; (b) it shall not instruct DealerX to process or to take any other action with respect to any such Company Data that Company knows, or should reasonably know, would violate any Applicable Law, Company’s own published privacy policies, or any other applicable privacy policies, notices, or disclosure statements; (c) the Company Content does not violate Applicable Law or any third party rights; (d) it has complied with all user requests, including, without limitation, requests of individuals to exercise their rights under consumer privacy laws, and it shall inform DealerX of any such requests in writing (including providing DealerX with updated Company Data) within a reasonable time period, as required by Applicable Law, during the course of the applicable Order Form(s); (e) except with DealerX’s prior written consent (email sufficing), it will not resell, lease, rent, sublicense, distribute, or transfer any Services or any other rights granted in this Agreement or any Order Form; and (f) it shall not attempt to re-identify or otherwise reverse engineer the Services or any data it receives in connection with the implementation of any Order Form(s), including, without limitation to derive directly identifiable personal information from, or merge directly identifiable personal information with, any pseudonymous, anonymous, or de-identified information provided by DealerX without explicit permission under the applicable Order Form(s).
      • 8.4 Disclaimers. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, DEALERX, ITS AFFILIATES AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, AGENTS OR REPRESENTATIVES (COLLECTIVELY, “DEALERX PARTIES”) DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO COMPANY, OR ANY OTHER PERSON OR ENTITY, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. FURTHER, THE DEALERX PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
      • 8.5 Suspension of Services. DealerX may suspend or discontinue any Service(s) if, in its reasonable judgment, the performance of such Service(s) would violate any Applicable Law, cause damage to DealerX Services, injury to DealerX brand, or disrupt Services to any customers of DealerX. Such suspension or discontinuation, when exercised in good faith, shall not constitute a default under this Agreement or the applicable Order Form(s), and the Parties will use commercially reasonable efforts to implement an alternative method of performing such Service(s). If an alternative method cannot be reasonably implemented, DealerX will refund any Budgets prepaid by the Company for Services not performed as of the date of suspension of the Services.
    • 9. CONFIDENTIALITY.
      • 9.1. Obligations. Each receiving Party shall: (a) hold the disclosing Party’s Confidential Information in strict confidence; (b) except as required by Applicable Law not disclose such Confidential Information to any third-party or use it for any purpose other than as specifically authorized by the disclosing Party and permitted by this Agreement; and (c) employ commercially reasonable steps to protect the disclosing Party’s Confidential Information from unauthorized or inadvertent disclosure, including those steps that it takes to protect its own confidential and proprietary information. Each receiving Party may disclose the disclosing Party’s Confidential Information to its Representatives on a “need to know” basis and only to the extent necessary to enable the Parties to adequately perform their respective responsibilities. Each receiving Party hereby undertakes to ensure the individual compliance of such Representatives with the terms hereof. No copies of any Confidential Information may be made by a receiving Party except as necessary to perform its obligations pursuant to this Agreement and the applicable Order Form(s). Confidential Information may not be translated into another format or language, or decompiled or reverse engineered without the disclosing Party’s prior written consent. Upon the written request of the disclosing Party (email sufficing), the receiving Party shall destroy all Confidential Information of the disclosing Party and any copies thereof. Following any such destruction, the receiving Party shall promptly confirm to the disclosing Party in a writing (email sufficing) that it has fully complied with the requirements of this Section.
      • 9.2 Injunctive Relief. The Parties each acknowledge that a Party’s breach of this Section 9 may result in irreparable harm and significant injury to the other Party and its clients and/or partners that may be difficult to ascertain. The non-breaching Party will have the right to seek, in addition to any other remedies that may be available to the non-breaching Party at law or in equity (including an award of reasonable attorneys’ fees where it is a prevailing Party), an immediate injunction in the event of any breach of any of this Section 9 without posting bond.
      • 9.3 Unauthorized Disclosure. Each Party will, within three (3) business days of discovery, report to the other Party any unauthorized disclosure of or access to the other Party’s Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident and take all reasonable measures to prevent any further unauthorized disclosure or access. If a receiving Party is requested or required to provide Confidential Information of a disclosing Party by a law enforcement or regulatory agency, the receiving Party must: (a) unless requested or required by Applicable Law, provide the disclosing Party with prompt written notice and reasonable cooperation if a protective order is sought; (b) take reasonable steps to limit any such disclosure only to the Confidential Information required to be compliant with such request; and (c) continue to otherwise protect all Confidential Information disclosed in response to such request.
      • 9.4. Encryption. Unless expressly authorized in an Order Form, Company must encrypt any Personal Data using industry standard encryption measures, before transferring such information to DealerX over a public network or on physical media.
    • 10. PROHIBITED DATA AND USES.
      • 10.1. Prohibited Data. Unless expressly authorized in one (1) or more Order Forms, Company shall not provide to DealerX, or permit any third-party to provide to DealerX on Company’s behalf, any Prohibited Data. If Company should transfer any Prohibited Data to DealerX in violation of this Section, Company shall notify DealerX in writing within three (3) business days and inform DealerX of the date, time, and other pertinent information related to the transfer so DealerX may take the steps necessary to remove the Prohibited Data from its systems.
      • 10.2. Prohibited Uses. Company shall not use any Services to send or facilitate any advertising in conjunction with any of the following: (a) adult entertainment (e.g., pornography or sex-oriented websites); and (b) illegal activity in any jurisdiction in the locality of which it is sent. In addition, Company shall not use the Services for the purposes of determining (c) employment eligibility, (d) health care eligibility, (e) insurance eligibility, underwriting and pricing and/or any other Fair Credit Reporting Act purposes.
    • 11. PRIVACY. Each Party agrees to comply with all Applicable Laws with respect to privacy and will prominently display a user-friendly, easily accessible, clear and comprehensive privacy policy on its website or mobile application that comply with all Applicable Laws and applicable self-regulatory principles, including providing an opt-out mechanism whereby users can opt out of data being collected about them. The Parties agree to the data processing terms set forth in the Data Processing Addendum.
    • 12. TERM AND TERMINATION
      • 12.1. Term. The Term of the Agreement shall begin on the date set forth on the Order Form and continue until terminated in accordance with Section 12.2 below or as set forth in the Order Form.
      • 12.2. Termination. Either Party may terminate these Terms and Conditions or an affected Order Form upon written notice (email sufficing) to the other Party if: (a) the other Party is in default of this Agreement or the affected Order Form and fails to cure, or fails to begin implementation of a mutually-agreed-upon plan to cure, such default within thirty (30) days of written notice from the other Party specifying the nature of such default and requiring its remedy; (b) the other Party petitions for relief under the Federal Bankruptcy Code or any involuntary petition is filed against the other Party and is not dismissed within sixty (60) days; (c) relief under the Federal Bankruptcy Code is granted with respect to the other Party as a debtor; (d) the other Party makes a general assignment for the benefit of creditors; (e) the other Party ceases doing business, assigns, or attempts to assign any portion of this Agreement to an entity other than as provided in Section 16.4 below, or (f) there is no Order Form in effect.
      • 12.3 Effect of Termination. Upon termination of this Agreement: (a) DealerX shall not (and shall not permit any third party to) access or use Company Data, unless expressly licensed by Company to DealerX in an Order Form, and (b) Company shall not (and shall not permit any third party to) access or use any of the Services (or part thereof) made accessible by DealerX, unless expressly licensed by DealerX to Company in an accompanying Order Form.
    • 13. LIMITATION OF LIABILITY.
      • 13.1 Disclaimer of Consequential Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY BUDGETS PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
      • 13.2 Aggregate Liability. DEALERX’S AGGREGATE LIABILITY TO COMPANY FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT OR ANY APPLICABLE ORDER FORM(S) SHALL BE LIMITED TO THE AVERAGE MONTHLY BUDGETS (EXCLUSIVE OF THIRD PARTY FEES, INCLUDING DATA, MEDIA, AND PASS THROUGHS PAID BY COMPANY) PAID BY COMPANY TO DEALERX IN THE PAST SIX MONTHS UNDER THE ORDER FORM(S) TO WHICH SUCH LIABILITY RELATES.
      • 13.3 Exclusions and Miscellaneous. The limitations in this Section: (a) shall not apply to a Party’s indemnification obligations or to damages resulting from a Party’s gross negligence or intentional misconduct; and (b) shall apply regardless of the legal theory or form under which any action is brought. Each Party shall have a duty to mitigate damages for which the other Party is responsible.
    • 14. INDEMNIFICATION.
      • 14.1 General. Each Party (as an “Indemnifying Party”) agrees to defend, indemnify, and hold the other Party and its Representatives (each an “Indemnified Party”) harmless from and against any third-party claim, action, or liability (including damages, costs, expenses, and reasonable attorneys’ fees) that may arise against the Indemnified Party as the result of: (a) personal injuries or damages to tangible real property caused by the Indemnifying Party and/or its Representatives; (b) the Indemnifying Party’s failure to comply with all Applicable Laws and regulations; or (c) the misappropriation or misuse of the Indemnified Party’s Confidential Information by the Indemnifying Party.
      • 14.2 Infringement.
        • 14.2.1 DealerX shall defend, indemnify, and hold Customer harmless from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded arising out of any third-party claim that the Services (other than the Company Data and Company Content) infringe a valid United States patent, trademark, copyright, or other third-party right. Customer shall defend, indemnify, and hold DealerX harmless from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded arising out of any third-party claim that the the Company Data and Company Content infringe a valid United States patent, trademark, copyright, or other third-party right.
        • 14.2.2 Should the Services provided to Company, or any part thereof, become, or in DealerX’s opinion be likely to become, the subject of a third-party claim of infringement, DealerX may, at its option and expense, either procure for Company the right to continue using such Services or replace or modify such Services as to make them non-infringing. If replacement or modification is not possible or is commercially unreasonable, Company will receive a pro rata refund of the Budgets paid to DealerX exclusive of media, data, or pass throughs with respect to the particular Services that are the subject of such claim.
        • 14.2.3 This Section 14 states the entire liability of DealerX and the sole and exclusive remedy of the Company with respect to any third-party claim of infringement. Neither Party shall have any liability or obligation to the other for any infringement claim to the extent caused by or based upon: (i) the combination of materials with other products or services not furnished or authorized by the Party providing the materials to the extent the infringement would not have occurred but for such combination; or (ii) additions or modifications made to the materials after delivery that are not made by the Party providing the materials or authorized by this Agreement and the applicable Order Form(s) to the extent the infringement would not have occurred but for such addition or modification.
      • 14.3 Indemnification Procedure. The Indemnifying Party shall have the right to exercise reasonable control over any litigation within the scope of these indemnities; provided, however, that the Indemnified Party shall have the right to participate in any such litigation insofar as it concerns claims against it. That right to participate includes the Indemnified Party’s right to select and retain counsel for representation at the Indemnified Party’s own expense. No Party shall have any obligation to defend or indemnify the other Party if the intended Indemnifying Party is not notified promptly of the claim and is materially prejudiced thereby. The Indemnified Party shall cooperate to the extent necessary in the defense of any claim within the scope of these indemnities.
    • 15. PUBLICITY.
      • 15.1 Press releases. Neither Party shall issue any press release, advertising, or promotional material relating to this Agreement without the express written consent (email being sufficient) of the other Party.
    • 16. MISCELLANEOUS.
      • 16.1 Governing Law; Arbitration Any dispute or claim arising out of or related to the terms of this Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws principles. The Parties agree to submit to non-binding arbitration in Miami, Florida pursuant to the rules and procedures set forth in Florida Statutes Section 44.103 and Rules 1.800 and 1.820 of the Florida Rules of Civil Procedure in Miami Florida. For any disputes not subject to non-binding arbitration, the Parties agree to submit to the exclusive jurisdiction of the federal and state courts located in Miami, Florida.
      • 16.2 Updates to Terms & Conditions. DealerX reserves the right, in its sole discretion, to make any changes to the Terms & Conditions that it deems necessary or useful to maintain or enhance: (a) the quality of its Services (as defined below) to Company; (b) the competitive strength of our market for its Services; or (c) the Services’ cost efficiency or performance; provided that no such change materially reduces or otherwise has a material adverse effect on: (i) DealerX’s level of effort in performing the Services; (ii) DealerX’s obligation to provide the Services under this Agreement; or (iii) Company’s rights hereunder. DealerX will notify the Company (email sufficing) of any material updates to these Terms and Conditions. Additionally, the Parties acknowledge that the state of the Applicable Law with respect to privacy, including, without limitation, behavioral advertising, contextual advertising, cookies, personal information, and informational privacy is unsettled and therefore DealerX may update the Terms & Conditions from time to time to include such changes in Applicable Law by providing notice of those updated terms to Company in writing (email sufficing). Company agrees to comply with those change(s) in Law, which will become effective on the date mandated by the applicable change(s) in Law or thirty (30) days after the date of DealerX’s written notice.
      • 16.3 Severance and Waiver. If any one or more of the provisions of this Agreement or any Order Form shall for any reason be held to be invalid or unenforceable, such provision shall be enforced to the maximum extent permissible to affect the original intent of the Parties, and the same shall not affect any of the other portions thereof. Failure or delay by either Party in exercising any right hereunder shall not be a waiver of such right; to be enforceable, a waiver must be in writing and signed by the waiving party.
      • 16.4 Assignment. Neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed; provided, however, that no consent shall be required for assignment by either Party: (a) to an Affiliate or other entity under common control of the assigning Party; or (b) in connection with a direct or indirect purchase, merger, reorganization, consolidation, or sale of all or a portion of the assigning Party’s assets, but, in each case of (a) and (b), subject to the assigning Party’s prompt notice of such assignment to the other Party. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
      • 16.5 No Third-Party Beneficiaries. This Agreement is solely on behalf of and for the benefit of the undersigned Parties. Unless otherwise expressly stated in an applicable Order Form, there are no intended third-party beneficiaries to this Agreement or any Order Form.
      • 16.6 Relationship. The Parties agree that they are independent contractors, and that no joint venture, partnership, employment, or agency relationship exists between the Parties as a result of this Agreement.
      • 16.7 Force Majeure. If performance of any obligation (other than Company’s payment obligations) hereunder is directly prevented or interfered with by an act or condition outside the reasonable control of a Party (a “Force Majeure Event”), such as fire, strike or labor disputes of a third-party, war or violence, and/or court order or requirement of a government agency, the Party suffering such Force Majeure Event, upon giving prompt written notice to the other Party, shall be excused from such performance during such occurrence to the extent performance is not possible.
      • 16.8 Notices. Except as otherwise provided by this Agreement, an applicable Order Form, or Law, any notice or other communication required hereunder shall be made by electronic mail and deemed to be received upon transmission. A Party may change the name or address of the designated recipient by giving notice to the other Party. Any notice or communication shall be deemed given upon receipt. If to DealerX, notices or other communications required hereunder shall be sent to legal@dealerX.com; and if to Company, notices or other communications required hereunder shall be sent to the email address of the person under an applicable Order Form.
      • 16.9 Survival of Terms. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, but not limited to, all provisions with respect to confidentiality, limitations on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect.
      • 16.10 Headings, Good Faith, and Counterparts. The descriptive headings of the sections of this Agreement and any Order Form are for convenience only and do not constitute a part of this Agreement or such Order Form. With respect to all of their respective dealings under this Agreement and each Order Form, each Party will act fairly and in good faith, and in the event of a dispute arising under this Agreement or any Order Form, each Party agrees to engage first in a business meeting to resolve the dispute.
      • 16.11 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject-matter hereof and supersedes any and all written and oral prior agreements and understandings between the Parties.

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