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STANDARD AGREEMENT - DEALIX TERMS OF SERVICE

THESE TERMS OF SERVICE ARE INCORPORATED BY REFERENCE INTO EACH DEALIX DEALER SERVICES AGREEMENT AND CONSTITUTE AN INTEGRAL PART THEREOF.  THESE TERMS OF SERVICE ARE LOCATED AT http://www.dealix.com/corporate/standardagreement.aspx AND MAY BE AMENDED BY DLX FROM TIME TO TIME IN ITS SOLE DISCRETION AS PROVIDED HEREIN.
1.      DLX Services. DLX will provide Dealer with advertising and marketing services (the “Services”) consisting of the presentation to consumers of information about automobiles and/or Dealer (including Dealer Inventory) and allowing such consumers to respond to advertisements by contacting Dealer (each such advertising response being a “Referral”) via the Internet or by telephone in accordance with the criteria set forth in the Agreement.

2.      Dealer Authorizations. The Rooftops and Franchises with respect to which Dealer will receive Referrals are set forth in the Agreement and Dealer represents that it is a licensed franchisee for each Franchise and the holder of a valid dealer license for each state listed in the Agreement.

3.      Services Delivery and Preferences.

3.1.   Internet and Telephone Referrals.  In connection with the Services, DLX or its third-party providers may present consumers on certain websites with information regarding Dealer and/or Dealer’s vehicles (including listings of pre-owned and new vehicles provided by Dealer (“Inventory”) which may include vehicle details and photographs) and allows consumers to (a) submit Referrals to Dealer via the Internet ("Internet Referrals") or (b) contact Dealer by telephone via a DLX-designated call tracking number ("Telephone Referrals").

3.2       Referral Preferences. Dealer may select certain criteria (“Preferences”) as may be available from time to time and according to which DLX will provide Referrals.  Preferences may include Referral receipt mechanism (e.g. email and/or XML), dollar volume limitations (or subscription package selection, if applicable), vehicle types for which Referrals are sought, and Marketing Territory for a given set of Services.  Certain detailed Preferences may be available on a campaign basis (“Campaigns”), which may include vehicle make/model, Campaign duration, Campaign budget and detailed Campaign Marketing Territory.  Dealer acknowledges and agrees that Campaign Preferences are separate from general Preferences and fees incurred for Campaign Referrals are incremental to and are not counted against general dollar volume Preferences.  Certain Preferences, including without limitation eligibility for Telephone Referrals, may be subject to minimum or maximum criteria.  Dealer acknowledges and agrees that, notwithstanding any Preferences selected by Dealer, Dealer may be required to accept and pay for all Referrals from certain Referral sources as a condition to receiving Referrals from such sources.  Without limiting the foregoing, Dealer agrees that Dealer shall accept and pay for all Referrals from Kelly Blue Book, Edmunds, Yahoo! and MSN without regard to model or trim level Preferences as a condition to receiving Referrals from such sources.  In the event that Referral volume and/or dollar volume limits have been reached for a given period, Dealer may be provided with the ability to waive such limits with respect to a given Referral, including without limitation waiver of such limits by entering a confirmatory code prior to acceptance of a Telephone Referral, and Dealer acknowledges and agrees that any such waiver with respect to a properly delivered Referral shall be binding on Dealer

3.3       Marketing Territory. To the extent applicable to the Services, Dealer’s Marketing Territory shall be based on zip codes or a specified radius (in miles) from a defined zip code.  Dealer may select additional marketing territories from which Dealer wishes to receive Referrals by specifying one or more zip codes and/or radii from each (within the constraints of the DLX system); provided that the minimum marketing territory, including the Initial Marketing Territory, shall be zip code.  In the event that Dealer selects a Referral dollar volume limitation Preference, Dealer acknowledges and agrees that DLX may in DLX’s sole discretion, expand or contract Dealer’s Initial Marketing Territory or any other Marketing Territory (excluding Campaign Preferences) provided that DLX does not exceed such Referral dollar volume limitation.

3.4        Internet Chat Referrals.  Unless Dealer elects not to participate, certain Internet Referrals may be distributed by way of Internet chat communications from consumers to Dealer ("Chat Referrals"). Dealer acknowledges that Dealer must obtain chat services directly from a DLX-approved provider of such services and Dealer's account with such provider must be in good standing in order For Dealer to be eligible to receive Chat Referrals. Dealer agrees that a Chat Referral will be deemed delivered when Dealer or its representative is logged in to the chat service and either (a) Dealer responds to a Consumer inquiry submitted through such chat service and either the Consumer or Dealer provides a phone number or email address enabling further communication between Dealer and the Consumer, or (b) a Consumer completes and submits a form through such chat service requesting information in response to an advertisement for a vehicle.

4.      Dealer Responsibilities.

4.1    Service To Consumer. Dealer agrees to contact the consumer identified in any Referrals (“Consumers”) within 24 hours of receipt of the Referral. Dealer agrees to conduct all business with Consumers in a responsible, courteous, and professional manner.

4.2    Use of the Services. Dealer represents, warrants and covenants that in using the Services and in engaging in the offer and sale of products and services to Consumers, Dealer (a) will comply with all applicable laws, rules and regulations, including but not limited to advertising, privacy, and disclosure laws, (b) will not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party, (c) will not breach any duty toward or infringe any rights of any person or entity including copyright, patent, trademark or other intellectual property rights or rights of publicity or privacy, and (d) will comply with and, will not circumvent, all standards, guidelines and requirements of DLX with respect to the Services provided hereunder.  Dealer acknowledges and agrees that Referrals and all DLX services related thereto are provided for use by Dealer solely for the purpose of responding to the vehicle inquiries contained in the Referrals and Dealer shall not, nor shall it permit others to resell, redistribute, pass-through or sublicense any Referral or the information contained therein to any third party.

4.3    Dealer Preferences. Dealer agrees to be bound by, and DLX may rely on, (i) any modifications to Preferences communicated to DLX in writing (whether by fax, email or in tangible form) by a representative of Dealer with actual or apparent authority, and (ii) any modifications to Preferences made through the DLX extranet by a user logged in under Dealer’s username and password. Any changes to Preferences by Dealer will take effect the following business day. Dealer agrees to maintain the accuracy of Dealer’s Preferences and further agrees to pay for all Referrals that correspond to Dealer’s Preferences in effect at the time a Referral is delivered to Dealer. 

4.4    Functionality of Receipt. Dealer agrees to be responsible for the ongoing operation of Dealer’s chosen Referral receipt mechanisms. Dealer agrees to pay for any Referral that fails to reach Dealer in a timely fashion due to (a) technical failure of one or more of Dealer’s Referral receipt mechanisms, or (b) failure of Dealer to inform DLX of changes in the nature or identity of one or more of Dealer’s Referral receipt mechanisms (e.g. fax machine down, email address changed, etc.).  Dealer must notify DLX of any disputes arising from or relating to a Referral within four business days of delivery of such Referral by DLX.

4.5       Inventory Collection and Display. In the event that collection of Dealer Inventory requires DLX or its third-party vendors to access Dealer’s computer systems to collect data, Dealer specifically requests and authorizes such access and will provide, and has all rights and authorizations required to provide, DLX with such system access and permissions as DLX reasonably requires.

4.6       License. Dealer hereby grants to DLX a non-exclusive, worldwide, royalty-free license to use any Inventory (including any images, video or other content included or associated with such Inventory), Dealer’s name, URL, trademarks, service marks and related assets (“Materials”) in connection with providing the Services hereunder, including, without limitation, the right to display such Materials on DLX websites and other websites and the right to distribute and sublicense such Materials for use and display on other websites in connection with providing the Services. In addition, Dealer further grants to DLX a non-exclusive, worldwide, royalty free right and license to use the Inventory in connection the products and services of DLX and its affiliates. Materials are accepted by DLX upon the representation that (a) all Inventory is accurate and current, and (b) Dealer has the right to publish the Materials without infringing the rights of any third party and without violating any law.  Images and vehicle descriptions contained in Dealer Inventory and related data may not contain Dealer contact information and DLX reserves the right to edit any such Inventory to exclude such information.  DLX reserves the right, in its sole discretion, not to display or distribute any or all Materials.  DLX may provide the ability for Dealer to specify individual vehicles to exclude from the Inventory displayed on websites. Dealer acknowledges that Dealer is responsible for and Dealer agrees to pay for any Referral relating to a vehicle in Dealer’s Inventory until 48 hours after (i) DLX has collected or received updated Inventory in which such vehicle is not included, or (ii) Dealer has manually excluded the vehicle from the Inventory displayed on websites. 

4.7       Telephone Referral Requirements.  Telephone numbers associated with Dealer Inventory for purposes of Telephone Referrals will be assigned by DLX and may be changed by DLX at any time without notice.  Dealer acknowledges and agrees that the telephone calls associated with Telephone Referrals will be recorded by DLX or its suppliers and that, in connection with providing the Services, the recorded calls may be reviewed by DLX, Dealer, and those given access by Dealer; which may include co-workers.  Dealer understands that, as currently configured, when a Consumer makes a call to the telephone number that results in a Telephone Referral, the Consumer will be automatically advised that such call is subject to recording and monitoring prior to the connection of the telephone call to Dealer.  In many states calls may only be recorded with the consent of both parties to the call.  Dealer represents, warrants and covenants that Dealer has obtained (or will obtain prior to participation in recorded calls) all necessary consents required by applicable law, including without limitation consents from Dealer personnel who will participate in the recorded calls.  Dealer agrees that neither DLX nor its suppliers accepts any responsibility for (a) the legality of recording, monitoring, storing and/or divulging telephone calls and (b) the legality or sufficiency of the advisory language used in any telephone prompt or recording.

5.         Term and Termination. This Agreement shall apply to a set of Services for the term set forth in the Agreement and will renew on a month-to-month basis thereafter unless Dealer provides 30 days prior written notice of non-renewal.  Upon expiration of the initial term for a set of Services, either Dealer or DLX may terminate this Agreement without cause on 30 days prior written notice to the other. Termination by Dealer must be made in writing and delivered to “Dealix Corporation, Attn: Cancellations, 720 Bay Rd, #200, Redwood City, CA 94063-2469.”  This Agreement may be immediately terminated by DLX 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.  In the event that Dealer instructs DLX to terminate a set of Services 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 DLX for such Services.  Dealer and DLX agree that such early termination fee is a reasonable estimate of damages suffered by DLX and shall constitute liquidated damages and not a penalty.

6.         Flat-Rate Subscription Plans.  If Dealer receives Referrals pursuant to a flat-rate subscription plan, Dealer acknowledges that DLX will use its reasonable efforts to provide Dealer with Referrals, but DLX is not required to deliver any minimum number of Referrals during any subscription period.  Subscription plan estimates of Referrals are solely for convenience, represent estimates of the number of Referrals that may be delivered to Dealer in light of Dealer’s Preferences, and neither represent a guaranteed minimum or guaranteed maximum number of Referrals.  Dealer acknowledges that certain Services and/or Preferences may not be available in connection with flat-rate subscription plans.

7.      Payment. Dealer agrees to pay DLX for Referrals at the price shown in the Agreement in a single consolidated payment, on behalf of all Rooftops and Franchises represented under this Agreement. All prices are exclusive of and Dealer shall be responsible for all applicable taxes related to the Services whether or not included on any invoice.  All payments to DLX will be made in U.S. Dollars, will be due and payable upon DLX providing written or electronic invoices to Dealer and must be paid within ten 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).

8.      Limitations of Liability. THE SERVICES PROVIDED BY DLX HEREUNDER, INCLUDING REFERRALS, ARE PROVIDED “AS IS” AND DLX 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. DLX’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 DLX, 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 DLX HAS BEEN INFORMED PF THE POSSIBILITY OF SUCH DAMAGES.

9.      Indemnification.  Dealer agrees to indemnify and hold harmless DLX 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 (i) Dealer’s breach of any representation, warranty or covenant in this Agreement, (ii) Dealer’s offer, sale, lease, servicing and/or financing of a motor vehicle through any Referral, and (iii) any other act or omission by Dealer or its associates.  Dealer also acknowledges that Dealer’s use of the Services in violation of this Agreement may cause DLX or its suppliers severe and irreparable harm for which monetary relief would be inadequate and that, upon such misuse or threatened misuse, DLX is entitled to seek injunctive relief to stop such misuse, in addition to DLX’s other available remedies.

10.    General. DLX reserves the right to amend these Terms of Service at any time, provided that DLX shall notify Dealer of any such amendments in writing, and Dealer hereby consents to receipt of such written notice via email or via the posting of such amended Terms of Service at the Internet address set forth above or at a page accessible to Dealer via the DLX extranet. This Agreement does not create a joint venture, partnership, employee, agency, franchise, or representative relationship between or among DLX and Dealer. Dealer acknowledges that all or a portion of the Referrals delivered to Dealer may originate from third party suppliers. Dealer agrees that DLX’s suppliers shall be direct and intended third party beneficiaries with respect to Dealer’s obligations pursuant to Sections 4.2 and 4.7 to the extent provided in such supplier’s agreement with DLX. Dealer may not assign this Agreement without DLX’s prior written consent. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between the parties 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. This Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey. Dealer agrees that venue for any action to enforce or interpret this Agreement shall lie in the state and federal courts located in Essex County, New Jersey.  DEALER AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, DEALER WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES.

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