Posted: March 7, 2015
Effective: March 7, 2015 This ACV Auctions Dealership Agreement (the “Agreement”) is between ACV Auctions Inc., a New York corporation (“ACV Auctions”) and the organization agreeing to these terms (“Customer”). This Agreement governs access to and use of the ACV Auctions client software (“Software”) and services (together, the “Services” or ” ACV Auctions for Dealership”). By clicking “I Agree,” signing your contract for the Services, or using the Services, you agree to this Agreement as a Customer. If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing to this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.
b. Facilities and Data Processing. ACV Auctions will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, and processing of Customer Data. Customer agrees that ACV Auctions may transfer, store, and process Customer Data in locations other than Customer’s country. “Customer Data” means Stored Data and Account Data. “Stored Data” means the files and structured data submitted to the Services by Customer or Reps. “Account Data” means the account and contact information submitted to the Services by Customer or Reps.
c. Modifications to the Services. ACV Auctions may update the Services from time to time. If ACV Auctions changes the Services in a manner that materially reduces their functionality, ACV Auctions will inform Customer via the email address associated with the account.
d. Software. Some Services allow Customer to download ACV Auctions Software which may update automatically. Customer may use the Software only to access the Services. If any component of the Software is offered under an open source license, ACV Auctions will make the license available to Customer and the provisions of that license may expressly override some of the terms of this Agreement.
2. Customer Obligations.
a. Compliance. Customer is responsible for use of the Services by its Reps. Individuals Customer designates as Reps may buy and sell automobiles on Customer’s behalf and execute certificates of title or any other instruments or documents on your behalf. Reps may pick up, receive, or deliver cars or other property on your behalf. Reps must be Customer’s employees or independent contractors. Customer and its Reps must use the Services in compliance with the [Acceptable Use Policy – Hyperlink] Customer will obtain from Reps any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow ACV Auctions to provide the Services. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any.
b. Customer Administration of the Services. Customer may specify Reps as “Administrators” through the administrative console. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. ACV Auctions’ responsibilities do not extend to the internal management or administration of the Services. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the Services complies with this Agreement.
c. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its Reps and terminate any unauthorized use of or access to the Services. Customer will promptly notify ACV Auctions of any unauthorized use of or access to the Services.
d. Restricted Uses. Customer will not (i) sell, resell, or lease the Services; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
e. Third Party Requests.
e.i. “Third Party Request” means a request from a third party for records relating to a Rep’s use of the Services including information in or from a Rep or Customer’s Services account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from Rep permitting a disclosure.
e.ii. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact ACV Auctions only if it cannot obtain such information despite diligent efforts.
e.iii. ACV Auctions will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Customer of ACV Auctions’s receipt of a Third Party Request; (B) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then ACV Auctions may, but will not be obligated to do so.
3. Third-Party Services. If Customer uses any third-party service with the Services, (a) ACV Auctions will not be responsible for any act or omission of the third party, including the third party’s access to or use of Customer Data and (b) ACV Auctions does not warrant or support any service provided by the third party.
a. Of Rep Accounts by ACV Auctions. If a Rep (i) violates this Agreement or (ii) uses the Services in a manner that ACV Auctions reasonably believes will cause it liability, then ACV Auctions may request that Customer suspend or terminate the applicable Rep account. If Customer fails to promptly suspend or terminate the Rep account, then ACV Auctions may do so.
b. Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then ACV Auctions may automatically suspend use of the Services. ACV Auctions will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.
5. Intellectual Property Rights.
a. Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant Customer any Intellectual Property Rights in the Services or ACV Auctions trademarks and brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
b. Limited Permission. Customer grants ACV Auctions only the limited rights that are reasonably necessary for ACV Auctions to offer the Services. This permission also extends to trusted third parties ACV Auctions works with to offer the Services (e.g., payment provider used to process payment of fees, etc.).
c. Suggestions. ACV Auctions may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or Reps send ACV Auctions.
d. Customer List. ACV Auctions may include Customer’s name in a list of ACV Auctions customers on the ACV Auctions website or in promotional materials.
6. Fees & Payment.
a. Fees. Customer will pay, and authorizes ACV Auctions to charge using Customer’s selected payment method, for all applicable fees. Fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to ACV Auctions. ACV Auctions may suspend or terminate the Services if fees are past due.
b. Auto Renewals and Trials. IF CUSTOMER’S ACCOUNT IS SET TO AUTO RENEWAL OR IS IN A TRIAL PERIOD, ACV AUCTIONS MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES ACV AUCTIONS THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL. ACV Auctions may revise Service rates by providing Customer at least 30 days’ notice prior to the next charge.
c. Taxes. Customer is responsible for all taxes. ACV Auctions will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide ACV Auctions with an official tax receipt or other appropriate documentation.
d. Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
e. Guaranteed Performance. Customer guarantees performance of all obligations and payment of all debts incurred or authorized by Customer’s Reps. This guaranty includes, but is not limited to payment of losses from defective titles or false or inaccurate odometer mileage statements.
7. Term & Termination.
a. Term. This Agreement will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated.
b. Termination for Breach. Either ACV Auctions or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
c. Effects of Termination. If this Agreement terminates: (i) the rights granted by ACV Auctions to Customer will cease immediately (except as set forth in this section); (ii) ACV Auctions may provide Customer access to its account at then-current fees so that Customer may export its Stored Data; and (iii) after a commercially reasonable period of time, ACV Auctions may delete any Stored Data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: 2(e) (Third Party Requests), 5 (Intellectual Property Rights), 6 (Fees & Payment), 7(c) (Effects of Termination), 8 (Indemnification), 9 (Disclaimers), 10 (Limitation of Liability), 11 (Disputes), and 12 (Miscellaneous).
a. By Customer. Customer will indemnify, defend, and hold harmless ACV Auctions from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against ACV Auctions and its affiliates regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement; or (iii) Reps’ use of the Services in violation of this Agreement.
b. General. ACV Auctions will promptly Customer of any claim and will cooperate with Customer’s defense of that claim. The Customer will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) ACV Auctions may join in the defense with its own counsel at its own expense.
9. Disclaimers. THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR ACV AUCTIONS AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.
10. Limitation of Liability.
a. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ACV AUCTIONS OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR ACV AUCTIONS AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
b. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, ACV AUCTIONS’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $100,000 OR THE AMOUNT PAID BY CUSTOMER TO ACV AUCTIONS HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
a. Informal Resolution. ACV Auctions wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Customer or ACV Auctions may bring a formal proceeding.
b. Agreement to Arbitrate. Customer and ACV Auctions agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Buffalo, NY, or any other location both parties agree to in writing.
c. NO CLASS ACTIONS. Customer may only resolve disputes with ACV Auctions on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
a. Terms Modification. ACV Auctions may revise this Agreement from time to time and the most current version will always be posted on the ACV Auctions website. If a revision, in ACV Auctions’s sole discretion, is material, ACV Auctions will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to ACV Auctions’s terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
b. Entire Agreement. This Agreement, including Customer’s invoice and order form, constitutes the entire agreement between Customer and ACV Auctions with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the order form, the Agreement.
c. Governing Law. The Agreement is governed by New York law except for its conflicts of laws principles.
d. Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
e. Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to ACV Auctions must be sent to:
640 Ellicott St., Suite 108
Buffalo, NY 14203
f. Waiver. A waiver of any default is not a waiver of any subsequent default.
g. Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of ACV Auctions. ACV Auctions may not assign this Agreement without providing notice to Customer, except ACV Auctions may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
h. No Agency. ACV Auctions and Customer are not legal partners or agents, but are independent contractors.
i. Force Majeure. Except for payment obligations, neither ACV Auctions nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
j. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s Reps are not third-party beneficiaries to Customer’s rights under this Agreement.