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AutoRevo Terms of Service
Before the vehicle dealer named on the Account Information Page (“Dealer”) uses the AutoRevo Software, Dealer must read and agree to these Terms and Conditions (the “Terms and Conditions”) with AutoRevo, LTD, a Texas Limited Liability Company, located at 3820 American Drive, Suite 110, Plano, TX 75075 (“AutoRevo”)
These Terms and Conditions are effective as of the date that Dealer completes registration on the Account Information Page to license and use the AutoRevo software (the “Effective Date”). If Dealer disagrees with any part, Dealer will not be allowed to license the AutoRevo Software. If Dealer accepts the provisions of these Terms and Conditions, Dealer has certain rights and obligations as set forth herein. These Terms and Conditions amend and restate any and all previous terms and conditions for the AutoRevo Software.
2 Dealer Responsibilities.
2.1 User Agreement. Unless already a registered AutoRevo user, as of the Effective Date, Dealer will sign up and become AutoRevo User, and at all times comply with the terms and conditions of the AutoRevo user agreements and privacy policies located on the AutoRevo website. Dealer acknowledges that Dealer’s failure to comply with the eBay or AutoRevo user agreements may result in suspension of Dealer’s eBay and/or AutoRevo user account(s). Dealer, its employees, affiliates and third party contractors will conduct themselves in a professional and workmanlike manner that is consistent with eBay and AutoRevo rules and regulations. Failure to comply with this Section 2.1 will be deemed a material breach of these Terms and Conditions. 2.2 Listing and Sales. Dealer will list vehicles on the eBay site in accordance with eBay’s standard terms and conditions located on the eBay site that relate to listings and sales. Dealer will ensure that any vehicle that has met the reserve on the eBay site will no longer be available for sale off the lot and transacted to the high bidder on the eBay site. Dealer shall respond to eBay-generated e-mails within one business day of receipt. 2.3 Delivery. Dealer will use best efforts to deliver each vehicle sold on the eBay site or any other classified site within seven (7) business days of the successful bid for such vehicle. In addition, Dealer shall deliver to the successful bidder the actual vehicle listed on the eBay site. 2.4 Other Obligations. Dealer shall comply with its other obligations set forth in these Terms and Conditions, including, but not limited to, those set forth in Sections 5 (“Licenses”), 6 (“Payment”), 7 (“Confidential Information”), 8 (“Representations and Warranties”) and 9 (“Indemnification”).
3 AutoRevo Responsibilities.
3.1 AutoRevo Software. AutoRevo will make the AutoRevo Software available to Dealer in accordance with the license provisions set forth in Section 5 below. In addition, AutoRevo may, from time to time, make updates to the AutoRevo Software available. 3.2 Training. AutoRevo may, in its sole discretion, periodically provide Training Sessions to Dealer’s employees. 3.3 Technical Support and Consultation. AutoRevo will provide technical support via electronic format during business hours of 8:30 AM to 5:30 PM, Central Standard Time, which AutoRevo may change at any time upon electronic posting of new hours of support.
4 Term and Termination.
4.1 Except as set forth herein, the Term of these Terms and Conditions will be for a period of one (1) month from the Effective Date (“Initial Term”). These Terms and Conditions will automatically renew for additional one (1) month periods unless either party provides written notice to the other of its intent not to renew at least thirty (30) days prior to the expiration of the then-current Term. These Terms and Conditions will be terminable early (i) if a party materially breaches these Terms and Conditions and does not cure such breach within thirty (30) days following written notice thereof from the non-breaching party, and (ii) by AutoRevo for convenience following thirty (30) days written notice. 4.2 Effects of Termination. Upon expiration or termination, all licenses granted hereunder will terminate unless such licenses are expressly stated as surviving. 4.3 Survival. Sections 1 (Definitions); 4.3 (“Survival”); 5.4 (“Ownership”); 7 (“Confidentiality”); 8 (“Representations and Warranties”); 9 (“Indemnification”); 10 (“Limitation of Liability”) and 11 (“General”) will survive the expiration or early termination of these Terms and Conditions, as well as any payment obligations that accrued prior to termination.
5.1 License to AutoRevo Software. AutoRevo grants Dealer a nonexclusive, non-transferable, limited license to use the AutoRevo Software during the term of these Terms and Conditions in the Territory solely for Dealer’s auction websites, classified websites, or any other online sales marketplace listings activities in accordance with these Terms and Conditions (the “Listing Sites”). Dealer may not modify, copy, publish, license, or sell any information or software associated with the AutoRevo Software. Dealer may not rent, lease, transfer or otherwise transfer rights to the AutoRevo Software. Furthermore, Dealer may not use the AutoRevo Software in any manner that could damage, disable, overburden, or impair the Listing Sites, nor may Dealer use the AutoRevo Software in any manner that could interfere with any other party’s use and enjoyment of the Listing Sites. Dealer agree that Dealer will use the AutoRevo Software only in compliance with all applicable laws, including but not limited to copyright and other intellectual property laws. Dealer’s right to use the AutoRevo Software will terminate immediately if Dealer violates any provision of these Terms and Conditions. Upon termination of these Terms and Conditions, Dealer shall discontinue all use of the AutoRevo Software. 5.2 Content License. Subject to the terms of these Terms and Conditions, Dealer’s hereby grants to AutoRevo a non-exclusive license to use, reproduce, distribute (only as necessary to promote the Dealer’s listings in a manner consistent with these Terms and Conditions), publicly display and publicly perform (in digital or analog formats) the Dealer Content on the eBay site or otherwise as reasonably appropriate to advertise and promote the Dealer Content solely to allow AutoRevo to perform its obligations set forth in these Terms and Conditions. 5.3 Content Standards. Dealer will not provide any Dealer Content that:
(i) infringes any third party’s U.S. copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (iii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (iv) is obscene, harmful to minors or child pornographic; (v) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (vi) is false, misleading or inaccurate.
5.4 Ownership. AutoRevo owns all rights, title and interest in and to the AutoRevo Software, including without limitation all Intellectual Property Rights. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. Dealer agrees not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the AutoRevo Software. Dealer also agrees not to remove, obscure, or alter AutoRevo’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the AutoRevo Software. Except as expressly set forth in these Terms and Conditions, neither party grants to the other any rights in or to any technology, content, customer data, intellectual property or other rights or property of such party. All rights not expressly granted hereunder are reserved.
6.1 Except as otherwise provided in an Account Information Page, Customer agrees to pay in advance for use of the AutoRevo Service. Fees for other services will be due and payable as set forth in the Account Information Page. All fees under these Terms and Conditions are non-refundable. AutoRevo’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, even if such taxes are not listed on an Order Form, excluding only United States (federal or state) taxes based solely on AutoRevo’s net income. Customer agrees to provide AutoRevo with valid credit card or approved purchase order information and complete and accurate billing and contact information as a condition to purchasing any products or services hereunder, and Customer agrees to update this information promptly and no less than 30 days after any change to it. Except as otherwise provided in an Account Information Page, AutoRevo reserves the right to change the fees, applicable charges and usage policies and to introduce new charges at any time, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail as set forth in Section 11.7 below. If Customer provides credit card information to AutoRevo, Customer authorizes AutoRevo to bill such credit card at the time that Customer orders any products or services and at the time of any renewal, for (a) the amount charged for the Initial Term (as defined in Section 6), as indicated on the Order Form, (b) any other products or services that Customer purchases under this Agreement, as indicated on an Account Information Page, and (c) in the event of a renewal as provided in Section 4 (“Term and Termination”), the amount charged for any renewal term(s). If AutoRevo, in its discretion, permits Customer to make payment using a method other than a credit card, AutoRevo will invoice Customer at the start of a license or billing period and approximately one month in advance of the start of any renewal or subsequent billing period, and all amounts invoiced shall be due upon receipt of the invoice. Customer’s account will be considered past due if payment in full is not received on or before the date that the payment is due, as set forth herein. If Customer believes that any invoice is incorrect, Customer must contact AutoRevo in writing within 60 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. 6.2 Automatic Credit Card Billing Authorization. Upon acceptance of the Terms and Conditions, AutoRevo will automatically bill your credit card at the beginning of each billing period for the Subscription and Premium Features amount due for a given billing period plus any overage charges from the previous month where applicable. The total charges will appear on your monthly credit card statement. By agreeing to these Terms and Conditions, you authorize AutoRevo to automatically bill the card provided. AutoRevo accepts Visa, Mastercard, and American Express.
7.1 Confidential Information Defined. A party’s “Confidential Information” is defined as any confidential or proprietary information of a party which is disclosed to the other party in a writing marked confidential or, if disclosed orally, is identified as confidential at the time of disclosure and is subsequently reduced to a writing marked confidential and delivered to the other party within ten (10) days of disclosure. Notwithstanding the foregoing, Confidential Information shall include proprietary technical and business information provided by either party to the other hereunder, including but not limited to: (a) patent and patent applications; (b) techniques, sketches, drawing, works of authorship, models, inventions, processes, equipment, algorithms, software programs, including, but not limited to, the AutoRevo Software, software source comments, and formulae related to current, future and/or proposed products and services of each of the parties, including information concerning research, development, design details and specifications; and (c) financial information, procurement and/or purchasing requirements, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising data, and marketing plans. The terms of these Terms and Conditions will also be deemed Confidential Information. 7.2 Mutual Obligations. Dealer will hold AutoRevo’s Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use AutoRevo’s Confidential Information for any purpose other than as required to perform under these Terms and Conditions. Such restrictions will not apply to Confidential Information which (a) is already known by the recipient, (b) becomes publicly known through no act or fault of the recipient, (c) is received by recipient from a third party without a restriction on disclosure or use, or (d) is independently developed by recipient without reference to the Confidential Information. The restriction on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, provided that recipient will first notify the disclosing party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order. The parties’ respective obligations hereunder will survive the expiration or early termination of these Terms and Conditions for a period of 3 years. 7.3 Return of Confidential Information Upon Termination. Upon termination of these Terms and Conditions, the receiving party will return to the disclosing party all Confidential Information of the disclosing party and destroy all documents or media containing any such Confidential Information and any and all copies or extracts thereof. 7.4 Confidential Treatment. Without limiting the foregoing, and subject to compliance with applicable law, Dealer agrees, if possible, to notify AutoRevo in the event any element of these Terms and Conditions may need to be disclosed pursuant to any regulatory or other disclosure requirement, so as to allow AutoRevo to obtain a protective order with respect to its confidential information.
8 Representations and Warranties.
8.1 Dealer represents and warrants that (a) it will comply with any applicable federal and state laws, regulations and ordinances in the performance of its obligations hereunder, as well as listing vehicles on the eBay site, including vehicle dealer laws and regulations; (b) Dealer entering into these Terms and Conditions and/or its performance hereunder will not violate terms of any other Terms and Conditions that Dealer has with a third party; and (c) if Dealer is not licensed as a vehicle dealer in the state applicable to a sale, Dealer will not (i) list a vehicle for sale under its User ID, (ii) charge a fee for services based upon a percentage of sales price, and (iii) interact with bidders or filter or otherwise control the flow of information between bidders. 8.2 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AUTOREVO, ITS PARENT(S), AFFILIATE(S) AND SUBSIDIARY(IES) DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE AUTOREVO SOFTWARE AND THE EBAY AND AUTOREVO SITES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. IN ADDITION TO THE OTHER DISCLAIMERS INCLUDED IN THS SECTION 8.2, AUTOREVO, ITS PARENT(S), AFFILIATE(S) AND SUBSIDIARY(IES) DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE AUTOREVO SOFTWARE. AUTOREVO, ITS PARENT(S), AFFILIATE(S) AND SUBSIDIARY(IES) DO NOT REPRESENT OR WARRANT THAT THE EBAY OR AUTOREVO SITES WILL OPERATE SECURELY OR WITHOUT INTERRUPTION.
Dealer acknowledges that it has not entered into these Terms and Conditions in reliance upon any warranty or representation except those specifically set forth herein.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO DEALER. DEALER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
9.1 Dealer will indemnify AutoRevo, its parent(s), affiliate(s) or subsidiarie(s) against any and all Claims which AutoRevo, its parent(s), affiliate(s) or subsidiarie(s) may incur as a result of any third parties actions arising from or relating to (i) Dealer Listings; (ii) breach by Dealer of any of its representations, warranties or obligations hereunder; (iii) infringement by any Dealer Content of a U.S. patent, copyright, trademark right or other intellectual property right of a third party or misappropriation of any third party trade secret, except where such Dealer Content has been modified by AutoRevo without authorization, and such modification is the basis of the Claim; and (v) any agreements between Dealer and its customers. 9.2 The foregoing obligations are conditioned on the indemnified party: (i) giving the indemnifying party prompt notice of the relevant claim, (ii) cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim, and (iii) giving the indemnifying party the right to control the investigation, defense and settlement of any such claim, except that the indemnifying party will not enter into any settlement that affects the indemnified party’s rights or interest without the indemnified party’s prior written approval, which will not be unreasonably withheld The indemnified party will have the right to participate in the defense at its expense.
10 Limitation of Liability.
NEITHER AUTOREVO NOR ANY OF ITS PARENT(S), AFFILIATE(S) OR SUBSIDIARY(IES) WILL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS. IN NO EVENT WILL AUTOREVO, ITS PARENT(S), AFFILIATE(S) OR SUBISIDIARY(IES) BE LIABLE TO DEALER IN AN AMOUNT GREATER THAN THE AMOUNT OF FEES PAID TO AUTOREVO FOR SERVICES THAT ARE THE SUBJECT MATTER OF A CLAIM UNDER THESE TERMS AND CONDITIONS. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. THIS LIMITATION OF LIABILITY OF AUTOREVO, ITS PARENT(S), AFFILIATE(S) AND SUBISIDIARY(IES) IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THESE TERMS AND CONDITIONS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
11.1 Governing Law; Venue. These Terms and Conditions will be construed in accordance with and governed exclusively by the laws of the State of Texas applicable to Terms and Conditions made among Texas residents and to be performed wholly within such jurisdiction, regardless of such parties’ actual domiciles. For purposes of these Terms and Conditions both parties submit to personal jurisdiction in Dallas County, Texas and further agree that any cause of action arising under these Terms and Conditions will be brought exclusively in a Dallas County, Texas court. 11.2 Publicity. Dealer will not make any public statement, including but not limited to any press releases, regarding the terms of these Terms and Conditions, any aspect thereof or the relationship of the parties without AutoRevo’s prior written approval which may be withheld in a party’s sole discretion; provided that to the extent such disclosure is required by law, rule, regulation, or governmental or court order, the party requesting disclosure will furnish the other party with sufficient time to address such request with any such governmental agency and seek confidential treatment. Nothing herein will require AutoRevo to approve the issuance of a public statement or obligate AutoRevo to participate in any public statement. 11.3 Independent Contractors. These Terms and Conditions do not create, and nothing contained in these Terms and Conditions will be deemed to establish a joint venture between the parties, or the relationship of employer-employee, partners, principal-agent or the like. Further, neither party will have the power to bind the other without the other’s prior written consent, nor make any representation that it has any such power. 11.4 Assignment. Neither party may assign its right or obligations hereunder without the express written consent of the other party; provided however, that either party may assign these Terms and Conditions as a result of a merger, acquisition or sale of all or substantially all of its assets. Notwithstanding anything herein to the contrary, nothing herein restricts Dealer’s rights to assign any of its obligations or rights to an Dealer affiliate, provided that AutoRevo gives prior consent to such assignment in writing, such consent not to be unreasonably withheld or delayed. 11.5 Severability; Headings. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. 11.6 Force Majeure. AutoRevo will not be liable to Dealer on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms and Conditions if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded. 11.7 Notice. Any notice under these Terms and Conditions will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed email, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with an overnight courier, five (5) days after deposit in the mail, or upon confirmation of receipt of facsimile or email. Notices will be sent to a party at its address set forth above or such other address as that party may specify in writing pursuant to this Section 11.7 (“Notice”). 11.8 No Third Party Beneficiaries. Except as explicitly stated herein, Dealer hereby acknowledges and agrees that there will be no third party beneficiaries to these Terms and Conditions. 11.9 No Export. Dealer acknowledges that the AutoRevo Software is for use in the Territory and underlying technology may not be downloaded or exported outside the Territory. 11.10 Entire Terms and Conditions; Waiver. These Terms and Conditions, including all documents referred to herein, sets forth the entire understanding and Terms and Conditions of the parties, and supersedes any and all oral or written agreements or understandings between the parties. These Terms and Conditions may be changed by AutoRevo in writing at any time, without notice. The waiver of a breach of any provision of these Terms and Conditions will not operate or be interpreted as a waiver of any other or subsequent breach. In the event of a conflict between these Terms and Conditions and any appendices attached hereto, the provisions in these Terms and Conditions will control.
By checking the acceptance box on the Dealer Registration Page, Dealer agrees to these Terms and Conditions.