AUTOFERRET.COM TERMS OF SERVICE

Notice to all users: Carefully read the following legal agreement before using this Web site or service. By using this Web site or service, you signify your assent to these terms of use. If you do not agree to these terms of use, please disconnect from and do not use this Web site or service.

1. AutoFerret.com Service. AutoFerret.com (“Provider”) will undertake promotional activities for Dealer, including advertising Dealer’s vehicles on AutoFerret.com and affiliated websites, promoting Dealer’s vehicles and/or services to AutoFerret.com site visitors, members and individuals (“Consumers”) through Targeted Marketing Contacts (“TMCs”) in accordance with the criteria set forth in this Agreement.

2. Franchises Represented.  The Rooftops and Franchises included in this Agreement are set forth in the Agreement and Dealer represents that it is a licensed franchisee for each Franchise listed in the Agreement.

3. Dealer Responsibilities.

3.1 Service to the Consumer.  Dealer agrees to contact the consumer in any TMC within 24 hours of receipt. Dealer agrees to conduct all business with Consumers in a responsible, courteous, and professional manner. Dealer agrees not to mislead consumers in any way. Dealer agrees to offer a $75 discount on listed prices to Consumers and authorizes AutoFerret.com to adjust listed prices by $75 to reflect that discount. Dealer agrees not to purport to represent, speak on behalf of Provider, or to disclose the existence of a relationship between Dealer and Company when communicating with Consumers.

3.2 Target Radius.  Dealer’s initial Target Radius shall be based on a specified radius (in miles) from the zip code of the Dealer’s rooftop (as set forth above).  Dealer may select additional marketing territories from which Dealer whishes to receive TMCs by specifying one or more zip codes and radii from each (in miles, and within the constraints of the AutoFerret.com system); provided that the minimum radius for any Target Radius, including the initial Target Radius, shall be 25 miles.  In the event that Dealer selects a TMC number or volume limitation Preference, Dealer acknowledges and agrees that AutoFerret.com may in AutoFerret.com’s sole discretion, expand or contract Dealer’s initial Target Radius or any other Target Radius (up to a maximum incremental radius increase of 100 miles from the specified radius for such Target Radius) provided that AutoFerret.com does not exceed such TMC number or volume limitation.

3.3 Dealer Preferences.  Dealer may select the following criteria (“Preferences”) according to which AutoFerret.com will provide TMCs: (a)Target Radius (provided that initial Target Radius must include Dealer’s rooftop), (b)information regarding the TMC receipt mechanism (email and/or XML) for receipt of TMCs, (c)total number of TMCs for the duration of the contract (d)monthly TMC volume, (e)The name of a Dealer representative who is familiar with the AutoFerret.com program.  Dealer agrees to be bound by, and AutoFerret.com may rely on any modifications to the Preferences communicated to AutoFerret.com in writing (whether by fax, email or in tangible form) by a representative of Dealer with actual or apparent authority.  Any changes to Preferences by Dealer will take effect within seven (7) business days.  Dealer agrees to maintain the accuracy of Dealer’s Preferences and further agrees to pay for all TMCs that correspond to Dealer’s Preferences in effect at the time a TMC is delivered to Dealer.  

3.4 Inventory Data.  Dealer agrees to provide AutoFerret.com with on-going access to current, accurate Dealer Inventory Data for publication on AutoFerret.com and affiliate websites in a format that meets AutoFerret.com specifications. Dealer agrees not to misrepresent vehicle inventory or pricing in any way. Dealer agrees to be responsible for the ongoing operation of Dealer’s mechanisms for providing AutoFerret.com to access Dealer’s inventory (i.e. database and network connections). 

3.5 License. Dealer hereby grants AutoFerret.com a non-exclusive, world wide, royalty-free license to use Dealer’s name, URL, trademarks, service marks, images, and related assets (“Materials”) for use in connection with providing the services hereunder, including, without limitation, the right to display such materials on other websites in connection with providing the Services. Materials are accepted by AutoFerret.com upon the representation that Dealer has the right to publish Materials without infringing on the rights of any third party and without violating any law.

3.6 Functionality of Receipt. Dealer agrees to be responsible for the ongoing operation of Dealer’s chosen lead notification receipt mechanisms. Dealer agrees to pay for any TMC that fails to reach Dealer in a timely fashion due to (a) technical failure of one or more of Dealer’s TMC receipt mechanisms, or (b) failure of Dealer to inform AutoFerret.com of changes in the nature or identity of one or more of Dealer’s TMC receipt mechanisms (i.e. Network failure, change in email address, etc.).

3.7 Use of Services. Dealer agrees to comply with all applicable laws, rules and regulations, including but not limited to advertising, privacy, and disclosure laws, with respect to the offer and sale of products and services to consumers using AutoFerret.com and contacted through TMCs.  Dealer acknowledges and agrees that TMCs and all AutoFerret.com services related thereto are provided to Dealer on a non-exclusive basis for Dealer’s personal use and Dealer shall not, nor shall it permit others to resell, redistribute, pass-through or sublicense any TMC or service to any third party.  Dealer must notify AutoFerret.com of any disputes arising from or relating to a TMC within 4 business days of notification of such TMC by AutoFerret.com.

4. Term and Termination. This Agreement shall be for the term set forth in the AutoFerret.com Service Contract signed by Dealer. Upon expiration of the initial term, this agreement will automatically renew under the same terms and at the same rate as in the AutoFerret.com Service Contract. This Agreement may be immediately terminated by AutoFerret.com without liability in the event Dealer has failed to perform any obligation required under this Agreement and all amounts due hereunder shall become immediately due and payable.  AutoFerret.com will not provide any refund. Either AutoFerret.com or Dealer may terminate this Agreement at any time without cause on 30 days prior written notice to the other. In the event that Dealer instructs AutoFerret.com to terminate the service hereunder prior to the expiration of the required notice period, Dealer shall be liable for an early termination fee equal to the last full month invoice from AutoFerret.com.

5. Payment. Dealer agrees to pay AutoFerret.com for services at the price shown in the Service Contract in a single consolidated payment on behalf of all Rooftops and Franchises represented under this Agreement. All payments to AutoFerret.com will be made in U.S. Dollars, will be due and payable upon AutoFerret.com providing written or electronic invoices to Dealer and must be paid within seven (7) days after each such invoice. Late payments will incur a finance charge of 1.5% per month and Dealer agrees to pay all costs incurred in connection with collection of past due amounts (including collection agency fees and reasonable attorney fees).

6. Limitations of Liability. THE SERVICES PROVIDED BY AUTOFERRET.COM HEREUNDER, INCLUDING TARGETED MARKETING CONTACTS, ARE PROVIDED “AS IS” AND AUTOFERRET.COM MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, CONCERNING THE SERVICES OR REFERRALS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. AUTOFERRET.COM’S LIABILITY HEREUNDER, IF ANY, SHALL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE MONTHLY SERVICE FEE PAID BY DEALER FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED. IN NO EVENT SHALL AUTOFERRET.COM, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT OR DEALERS USE OF THE SERVICES, EVEN IF AUTOFERRET.COM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Indemnification. Dealer agrees to indemnify and hold harmless AutoFerret.com and its affiliates and their respective directors, officers, employees, agents and suppliers against any and all losses, liabilities, claims, awards, damages, judgments, settlements, and costs, including fees and expenses, arising out of or related to Dealer’s negligence or wrongful conduct, or arising out of any third-party claim, including, but not limited to, any claims for damages by any person or entity regarding the purchase, lease, and/or finance of a motor vehicle from Dealer or resulting from Dealer’s utilization of AutoFerret.com’s services.

8. Nondisclosure. 

8.1 Confidential Information. In connection with providing the services hereunder, AutoFerret.com may disclose Confidential Information (as defined below) to Dealer.

8.2 Definition of Confidential Information. Confidential Information means any information, technical data, or know-how, including but not limited to, that which relates to research, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances of AutoFerret.com, which all shall be deemed as Confidential Information. Confidential Information does not include information, technical data or know how which (I) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure, or (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature other than as a result of any improper inaction or action of the Recipient or, (iii) is approved by AutoFerret.com, in writing, for release.

8.3 Nondisclosure of Confidential Information. Dealer agrees not to use any Confidential Information disclosed to it by AutoFerret.com for its own use or for any purpose other then to carry out discussions concerning, and the undertaking of the Agreement. Dealer will not disclose any Confidential Information of AutoFerret.com to parties outside the Agreement or to employees of the Dealer other than employees or agents under appropriate burden of confidentiality and who are required to have the information in order to carry out the discussions concerning and the undertaking of the Agreement. Dealer agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of AutoFerret.com in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature. Dealer agrees to notify AutoFerret.com in writing of any misuse or misappropriation of Confidential Information of the disclosing party, which may come to the receiving party’s attention.

8.4 Publicity. Dealer will not, without prior consent of the other party, disclose to any other person, the fact that Confidential Information of AutoFerret.com has been disclosed under this agreement, that discussions or negotiations are taking place between the parties, or any of the terms conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to AutoFerret.com.

8.5 Return of Materials. Any materials or documents that have been furnished by AutoFerret.com to Dealer in connection with the Agreement will be promptly returned by the Dealer, accompanied by all copies of such documentation or certification of destruction, within (10) days after (i) the Agreement has been terminated or (ii) the written request of AutoFerret.com.

8.6 Patent or Copyright Infringement. Nothing in this agreement is intended to grant any rights to Dealer with regard to any and all rights of AutoFerret.com’s rights to patents or copyrights, including tradenames.

8.7 Term of Nondisclosure. The forgoing commitments of each party shall survive any termination of the Relationship between the parties for a period of three years after application of Section 4 above.

8.8 Remedies. Dealer agrees that any violation or threatened violation will cause irreparable injury, both financial and strategic, to AutoFerret.com and in addition to any and all remedies that may be available, in law, in equity or otherwise, AutoFerret.com shall be entitled to injunctive relief against the threatened breach of this Agreement by Dealer without the necessity of proving actual damages.

9. General.

9.1 Amendment. AutoFerret.com reserves the right to amend these Terms of Service at any time, provided that AutoFerret.com shall keep the terms accessible to Dealer through the website and send electronic notice to Dealer at the email address provided to AutoFerret.com of any changes.  Dealer will have seven (7) days from the date of electronic transmission to notify AutoFerret.com of any objection to changes made. This Agreement does not create a joint venture, partnership, employee, agency, franchise, or representative relationship between or among AutoFerret.com and Dealer. Dealer acknowledges that all or a portion of the data and services provided to Dealer may originate from third party suppliers. Dealer may not assign this Agreement without AutoFerret.com’s prior written consent. 

9.2 Enforceability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the reminder of the Agreement shall remain in full force and effect and shall in no way be impaired.

9.3 Entire Agreement and Amendments. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between the parties, whether written or verbal, with respect to the subject matter hereof and the terms of Dealer’s purchase orders or procurement documents issued in connection with this Agreement shall not serve to modify or add to these Terms of Service.

9.4 The Waiver. Failure to invoke any right, condition, or covenant in this Agreement by either party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant and neither party may rely on such failure.

9.5 Governing Law, Severability. This Agreement shall be governed by the laws of the State of Washington. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.

9.6 Venue.  Dealer agrees that venue for any action to enforce or interpret this Agreement shall lie in the state and federal courts located in King County, Washington. The parties shall be entitled to rely upon signatures on copies of this Agreement transmitted by facsimile.

9.7 Arbitration.  The parties shall settle any controversy arising out of this Agreement by arbitration in Seattle, Washington, in accordance with the rules of the American Arbitration Association.  A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The arbitrator may award attorneys' fees and costs as part of the award.  The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction.

9.8 Attorney’s Fees, Litigation Expenses and Costs.  In the event of any contro­versy, claim or dispute between the parties affecting or relating to the subject matter or performance of this Agreement (including issues of bankruptcy law), the pre­vailing party shall be entitled to recover from the nonprevailing party all of the prevailing party’s reasonable attor­neys' fees, litigation expenses and costs.

 

Except as noted, neither information provided by this service nor the AutoFerret Web Site or any element thereof, including without limitation, text, graphics, images, or other materials, may be copied, repurposed, uploaded, posted, transmitted, or redistributed, except that you may download one copy of such materials to your individual computer for your personal, non-commercial use only (which also excludes any use by any governmental, educational, charitable, or other institutional use that is not strictly a personal use by you), provided that all copyright and other proprietary notices appearing on such materials must be preserved without alteration, modification, or obfuscation. With respect to any software downloaded by you from the Web site, such software, and all elements thereof, are licensed to you by Viverrae, LLC for your personal use only. You may not modify or prepare derivative works based upon the information provided by this service or the Web site, or any element thereof, and you may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise attempt to access the source code to any software downloaded from the Web site.

All right, title, and interest in and to this Web site and the service is owned by Viverrae, LLC. The Web site and service are protected by United States copyright law and international treaty provisions, including without limitation the Berne Convention. All trademarks, service marks, and trade names are proprietary to Viverrae, LLC unless otherwise noted. All rights not expressly licensed hereunder are reserved by Viverrae, LLC.

The Web site, the service and all elements thereof are provided on an "as is" basis without warranty of any kind, express or implied. Viverrae, LLC disclaims all warranties, express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Viverrae, LLC does not warrant that the Web site or service will operate or perform in a manner that is uninterrupted or error-free, or that the Web site or host server will be maintained free of viruses or other harmful code. Viverrae, LLC makes no warranties that the information presented is current, up-to-date, or accurate. Some states and jurisdictions do not allow limitations on implied warranties, so the above may not apply to you. The foregoing shall be enforceable to the maximum extent permitted by applicable law.

Under no circumstances and regardless of legal theory, whether in tort, contract or otherwise, will Viverrae, LLC be liable to you or any other party for an indirect, special, incidental, reliance, or consequential damages, however caused, and regardless of character, including without limitation, any damages relating to lost data, computer failure or malfunctioning, or otherwise. Some states and jurisdictions do not allow the limitation of liability for consequential or indirect damages, so the foregoing limitation may not apply to you. The foregoing shall be enforceable to the maximum extent permitted by applicable law. You agree to this allocation of risk in relation to your use of the Web site.

This Web site and service are presented by Viverrae, LLC from within the United States, and Viverrae, LLC makes no representation that materials in this Web site are appropriate or available for use in locations outside the United States. Neither the Web site, nor any underlying information or technology may be downloaded or otherwise exported or reexported into, or to a national or resident of, any country to which the United States has embargoed goods (for example, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria) or to anyone on the United States Treasury Department's list of Specifically Designated Nations or the United States Commerce Department's Table of Denial Orders. By downloading or using any element of the Web site, you are agreeing to the foregoing and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you are responsible for complying with any and all local laws in your jurisdiction which may impact your right to use this Web site.