You are entering into this Bid Hogs Advertising Sales Agreement (this “Agreement”) with Bid Hogs, Inc., dba BidHogs.com (“Bid Hogs”, “we” or “us”) for the purpose of implementing the BidHogs Advertising Agreement. We provide the services identified on the front of this Agreement, as may be amended, modified, or canceled from time to time (each a “Service” and collectively, the “Services”) in connection with the BidHogs.com website (the “Website”). By entering into this Agreement, you are agreeing to use and participate in the Services in accordance with this Agreement. A user of the Website from whom you receive, through the Services, a request for information about new and used car advertising is referred to in this Agreement as a “Customer”, and such request is referred to in this Agreement as an “Opportunity”. During the applicable Term, as de ned below in Section 2, we will forward Opportunities to you pursuant to terms of this agreement.
What We Provide. We will provide you with the following Services to be used at your option: (a) accessto an initial general training session to enable your designated sales personnel to use and participate in the Services; (b) display of your Advertisements, as de ned below, on the Website; (c) new and used car advertising; (d) copies of Opportunities for you via e-mail, fax, and web access through our online Bid Hogs Extranet tool; (e) phone, e-mail, and web-based support; (f) reports such as the number of Opportunities sent to you; and (g) if you are listing data, we will electronically retrieve your new and/or used vehicle data; if we are unable to retrieve data from your system, you are required to electronically send data to us. We will enhance and update your data for display on the Website; however, you will be responsible for any updates to any data we host. Services are provided on a monthly basis which runs from the 1st day of the calendar month to the last day of the calendar month.
What You Provide. You will provide and/or do the following in connection with the Services: (a) notify us in writing of any change of your salesperson(s) or manager(s) within two (2) business days after such change; (b) provide full-time Internet and e-mail access to all designated salesperson(s); (c) respond to every one of your Opportunities within eight (8) business hours after transmission; (d) exercise your best efforts to have your designated salesperson(s) respond to all Opportunities in accordance with the customer satisfaction standards and other requirements set forth herein or as we may request from time to time; (e) provide and honor the price of the agreed-upon vehicle without requiring the customer to be present at your dealership (notwithstanding the foregoing, it is not required that the agreed-upon vehicle be the final vehicle sold); (f ) inform the customer of the status (i.e. orderable, locatable, in stock) of the requested vehicle(s) including a stock number, if available, and respond to all customer questions in a prompt manner; (g) provide and maintain specific processes for all information, communication, and transactions relating to your Opportunities; (h) follow all of the then-current, applicable policies for the Services that are made available to you; (I) comply with all applicable laws, rules, and regulations, including the Telephone Consumer Protection Act; (j) provide to us such information relating to the Services and their performance as we may request from time to time; and (k) electronically send orenable us to electronically retrieve digital images of your Advertisements. If you are listing new and/or used vehicle data, you must (i) electronically send or enable us to electronically retrieve data from your computer system periodically as required by us (digital photographs may only be electronically sent to us); (ii) inform us promptly of any changes to your computer system including, but not limited to, vendor, service provider and CRM applicable databases; (iii) update your internal systems that provide data to us at least once per day and otherwise make commercially reasonable efforts to ensure that the data is only for vehicles available on your lot; and (iv) ensure that all data provided by you will include at least the stock number, complete VIN, actual mileage, colors, and, in most cases, provide information with regard to price.
2. TERM AND TERMNINATION
The term of this Agreement begins on the date of this Agreement’s execution by both parties (“Effective Date”) and continues until terminated by either you or us, with or without cause (the “Term”), upon at least thirty (30) days written notice. We may terminate the Service(s) immediately pursuant to Section 10 (Default) or at any time with five (5) days written notice to you upon any of the following; (a) if you do not comply with any of your obligations under this Agreement (or then-applicable policies and terms), including but not limited to, any failure to pay amounts due, past, or current; (b) for reasons relating to any applicable state or federal law; or (c) if we no longer make the Service(s) available. Any termination notice to us must be in writing and mailed by certified mail or overnight courier service to the address set forth in Section 14. If we have any reason to believe that any of the foregoing circumstances have occurred, we may, without liability, immediately suspend Services upon notice to you, immediately cease forwarding Opportunities to you, cause your Advertisements and data not to be displayed on the Website, and obtain any other remedies available. You will receive an official written acknowledgment from the Bid Hogs Account Management Group of any partial or full cancellations to your account. If you terminate the Services under this Agreement and later desire to reinstate the Services after termination, in order to receive the Services, you will be required to sign another Agreement with us. A final bill will be issued to you following the 30-day termination period and will be due and payable upon receipt. All our rights and remedies are cumulative.
YOUR FAILURE TO MEET THE APPLICABLE REQUIREMENTS OF THE SERVICES OR TO COMPLY WITH CUSTOMER SATISFACTION STANDARDS SET FORTH HEREIN OR AS WE MAY REQUEST FROM TIME TO TIME PERTAINING TO THE SERVICES AND THEIR USE WILL BE GROUNDS FOR OUR TERMINATION OF YOUR USE OF AND PARTICIPATION IN THE SERVICES.
You represent to us: (a) (if you are subscribing to the new vehicle advertising Service) that you are a licensed new motor vehicle dealer and that you are a franchiseefor the franchise(s) indicated on the front of this Agreement (the “Franchises”); (b) (if you are subscribing to the used vehicle advertising Service) that you are a used motor vehicle dealer; and (c) that, if required by any regulatory agency, your sales personnel are duly licensed. You will provide customers with appropriate materials for the applicable Franchises. You will promptly notify us in writing if any of the relevant representations in this Section 3 are no longer true.
DURING THE TERM, THE SERVICES ARE PROVIDED TO YOU ON AN “AS-IS, AS-AVAILABLE” BASIS. THE SERVICES MAY CONTAIN TECHNICAL OR OTHER INACCURACIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO: (I) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF THE SERVICES; (II) ANY WARRANTIES CONCERNING ADHERENCE WITH INDUSTRY PRACTICES, INCLUDING BUT NOT LIMITED TO INDIVIDUAL SCREENSHOTS OF EACH CONSUMER’S CONSENT TO RECEIVE TELEMARKETING CALLS, AND (III) ANY IMPLIED WARRANTIES IF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. FURTHER, WE EXPRESSLY DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY MAKE WITH CUSTOMERS, AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS.
During the Term, you agree to pay us the Fees specified on the front page of this Agreement (the “Fees”). Payment for the non-refundable Initial Set-Up Fees and the first Monthly Advertising Fees will be due when invoiced after execution of this Agreement. Recurring Monthly Advertising Fees will be charged in advance on a monthly basis, including any fees for partial monthly Services, in accordance with our then-current applicable rates and policies. If you add or terminate a market zone, franchise, Showcase, or Premier Showcase slot, your Monthly Advertising Fees will be subject to change. You must pay any sales, use, or other transaction-based taxes, if applicable. Invoices are due within ten (10) days upon receipt. You must pay all amounts without offset. If any collection agency efforts are required to collect amounts past due, you will beliable for any collection agency fees in connection with your account, as well as any returned check fees. You will be deemed to have waived disputes regarding any Fees unless you notify us in writing of such disputes within thirty (30) days of the applicable invoice date. Downtime, for any reason, is not a breach of this Agreement by us and will not entitle you to any refunds or credits. We reserve the right to change our Fees or implement changes to any of our policies regarding the Services and their use at any time upon thirty (30) days prior written notice to you. Upon notice of a price increase, you will have the right to terminate this Agreement upon the effective date of any such Fee increase. Should you not accept such change, your effective cancellation date will be the date of the fee increase provided that you give written notice to us and such notice is mailed by certified mail or overnight courier service to the address set forth in Section 14. You may, on occasion, receive an Opportunity from us that may be returned for credit in accordance with the terms of our credit policy, which is available upon request. Should you receive such an Opportunity, you must notify us within seven (7) days of the Opportunity receipt so that we can analyze each Opportunity and issue credit to your account, if appropriate. You will be deemed to have waived disputes regarding any Fees upon failure to submit Opportunities for credit review within the seven (7) day lead receipt window. Any Opportunity submitted for credit must be veri ed by our Lead Quality Assurance Team and identified as invalid before credit(s) will be issued. The assessment of invalidity is at our discretion. You will receive acknowledgment from the Bid Hogs Account Management Group for all credited Opportunities. Credited Opportunities may be in the form of: (a) replacement Opportunities or (b) monetary credit toward your next monthly invoice at our discretion. Only credit requests faxed to 973-846-0041 will be considered for credit.
You will provide digital inserts of your logos and advertising messages (“Advertisements”) and will be solely responsible for their content. We will not be responsible for any errors or omissions in any Advertisement. We reserve the right, in exercise of our sole discretion, to revise or reject any Advertisement or portion thereof for any reason. Display by us of an Advertisement on the Website will not affect our right to revise or reject such Advertisement thereafter. Changes to Advertisements must be given in writing. E-mail changes will be accepted only if sent to the following e-mail address: email@example.com. You warrant and represent to us that all Advertisement material which you submit to us will be original, will not violate any law or infringe the copyrights, trademarks, trade names, patents, or other proprietary rights of any person, and will contain no matter which is libelous, an invasion of privacy, an unlawful appropriation of any name or likeness, or is otherwise injurious to the rights of any person, and that you have obtained or will obtain all licenses and/or consents necessary to display the Advertisement material prior to your submission of such Advertisement material to us. You assume all liability for all content (including, but not limited to, text, representations, names, photographs, logos, and illustrations) of Advertisements, and you agree to Indemnify and hold harmless Bid Hogs, and its respective shareholders, employees, directors, officers, and agents from and against any and all claims, losses, liabilities, and expenses, including attorneys’ fees and legal expenses, resulting from or attributable to the display or publication of any Advertisement submitted by you, Your instructions with special clauses or modi cations will have no binding effect on the parties.
7. OWNERSHIP OF DATA
You and Bid Hogs will co-own all data generated pursuant to this Agreement, and each has an unrestricted right to use or sell such data. Without limiting the generality of the foregoing, (a) Bid Hogs is not entitled to share in the profits you make or will make from the Opportunities sent or the Services performed other than the Fees charged by Bid Hogs, and (b) you are not entitled to share in the profits Bid Hogs makes or will make from the data and Opportunities, or arising from the Services.
8. COMPLIANCE WITH RULES AND LAWS
You will comply with all then-current applicable policies regarding the Services and their use that we may establish and make available to you from time to time. You will also comply with all applicable laws and regulations relating to the Services, including the collection, distribution and display of data, and your obligations under this Agreement. You are responsible for the compliance of your affiliates, employees, agents, and consultants (collectively“Associates”) with the terms of this Agreement and any applica- ble laws or regulations. You agree to indemnify and hold harmless Bid Hogs and its respective employees, directors, officers, and agents, against any loss, damage, award, or expense (including attorneys’ fees) involving a claim that your or your Associates have violated, or allegedly violated, applicable laws or regulations related to the
Services provided by this Agreement
As required under federal law by the Telephone Consumer Protection Act of 1991, 47 U.S.C. §227, and the Federal Communications Commission’s related implementing regulations as set forth in 47 C.F.R. §64.1200, each party makes the following representations; (i) Bid Hogs represents it obtains express written consent of a customer by a disclaimer on its Website forms that collects the Opportunity, and (ii) You represent you will comply with the Telephone Consumer Protection Act and Federal Communications Commission’s regulations, and further provided, if a customer opts-out after being contacted by you, you will provide Bid Hogs with your updated do-not-call (or SMS) list with each monthly payment.
9. LIMITATION OF LIABILITY
WE WILL NOT BE LIABLE TO YOU FOR CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR LOST DATA, EVEN IF TOLD THOSE DAMAGES MAY OCCUR IN CONNECTION WITH YOUR USE OF OR PARTICIPATION IN THE SERVICES. OUR LIABILITY UNDER CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY CANNOT EXCEED THE AMOUNT YOU PAY US UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING SIX MONTH PERIOD.
You will be in default if you breach this Agreement or any policies we may adopt in connection with the Services, including any failure to pay any amounts due. If you default, we may, without liability, immediately terminate this Agreement and immediately cease forwarding Opportunities to you and/or display your data in connection with the Services and obtain any remedies available. All unpaid amounts are immediately due and payable on default. All our rights and remedies are cumulative.
In addition to your agreement to indemnify us elsewhere in this Agreement, you will indemnify, defend, and hold Bid Hogs, our affiliates, and our and their shareholders, employees, directors, officers, agents, representatives, suppliers, and other websites displaying your inventory harmless against all damages, suits, proceedings, liens, penalties, and liabilities in any way related to: (a) breach of this Agreement by you or an Associates; (b) your o er or sale of a motor vehicle through an Opportunity resulting from these Services (including, without limitation, your failure to honor the transaction price or other terms of any o er made to a customer resulting from an Opportunity; or (c) any other act, inaction or omission by you or your Associates, including your failure to notify Bid Hogs if a consumer retracts their consent. Your indemni cation obligations survive the termination of this Agreement. Subject to Section 9, if you become a defendant in a suit based on a direct claim that an Opportunity furnished under this Agreement directly failed to obtain express customer consent as represented in Section 8, you must notify us promptly of the suit. If we receive prompt notice and, at our request, are given control of the suit and all requested assistance for defense, we will defend the suit at our expense and pay any costs or damages finally awarded.
12. CONFIDENTIALITY/PRIVACY/DATA LICENSE
Each of the parties acknowledges and agrees that one party may receive non-public personal information of the other party’s customers and consumers, knowledge, materials, data and other information concerning the operations, plans, and opportunities of the other party. This Information (either written or verbal) and any information that is identified in writing as “CONFIDENTIAL” (collectively “Confidential Information”) will be considered such party’s confidential and proprietary information. We each agree to treat any such Information provided as confidential, using the same degree of care and discretion that we each use with respect to our own confidential information. Confidential Information may be disclosed if required by law. Notwithstanding the foregoing, and except as otherwise agreed by Bid Hogs; (a) you may hereby grant us the nonexclusive, worldwide, irrevocable, royalty-free right and license to access, use, copy, adapt, display, and distribute new and/or used vehicle inventory data posted on the Website, on any other websites or other media, to make databases or compilations to provide to others, and as provided for in this Agreement; and (b) you grant us the nonexclusive, worldwide, irrevocable, royalty-free right and license to access and use all other data that you provide to us. However, we will not disclose such data to others in a way that identi es it specifically as your data. Certain federal and state privacy and data security-related laws and regulations (“Privacy Laws”) may affect your ability to collect, use, store, and disseminate customer and consumer personal information which may be included in your Confidential Information. IT IS YOUR RESPONSIBILITY TO FAMILIARIZE YOURSELF WITH THESE PRIVACY LAWS AND COMPLY WITH THEM IN ALL JURISDICTIONS IN WHICH YOU HAVE FACILITIES, PERSONNEL, OR OPERATIONS, AND THAT THE CUSTOMERS OR CONSUMERS ARE LOCATED WHEN COLLECTING, USING, STORING, AND DISSEMINATING CUSTOMER OR CONSUMER INFORMATION. You agree to indemnify us for any harm arising from your failure to comply with the Privacy Laws.
13. APPROPRIATE SAFEGUARDS
Both you and Bid Hogs will maintain reasonable physical, electronic, administrative and procedural controls and safeguards to protect any Customer Information (as de ned below) received pursuant to this Agreement from unauthorized access, use, or disclosure. These controls include, but are not limited to, the maintenance of appropriate safeguards to restrict access to the Customer Information received to those employees, agents, or service providers who need such information to carry out the purposes for which such Customer Information was disclosed. For purposes of this Section 13, “Customer Information” will mean any record containing non-public personal information as de ned in 16 C.F.R. Section 313.3(n) about a customer, whether in paper, electronic, or other form, that is disclosed or made available to you or Bid Hogs, or yours or our affiliates.
This Agreement will become effective on the Effective Date. This Agreement contains the entire agreement between you and us regarding the Services and other matters covered by this Agreement. It will prevail over all oral and written communications between us regarding these matters. An electronic signature on this Agreement will have the same legal force and effect as though it were the original of such signature. This Agreement may not be modified except by awriting executed by each of the parties against which enforcement is sought. This Agreement will be construed and enforced under the laws of the State of New York and you irrevocably consent to exclusive jurisdiction and venue of the state and federal courts located in the Westchester County and the New York State Unified Court System, respectively, in connection with any claim or action arising out of or in connection with this Agreement. No action (including arbitration), regardless of form, arising under this Agreement may be brought by you more than one (1) year after the cause ofaction has accrued. If part of this Agreement is held invalid or unenforceable, the invalid part will bedeleted and the rest will remain in effect.
EACH PART OF THIS AGREEMENT THAT LIMITS LIABILITY, DISCLAIMS WARRANTIES OR GUARANTEES, OR EXCLUDES DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED THAT WAY. IF ANY REMEDY FAILS TO FULFILL ITS ESSENTIAL PURPOSE, THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES REMAIN IN EFFECT.
Failure by Bid Hogs to act with respect to a breach by you does not waive its rights to act with respect to subsequent or similar breaches. Except as otherwise stated herein, any notice required or permitted to be sent under this Agreement will be in writing and will be: (a) delivered by hand; (b) sent by fax (the receiving machine must print a transmittal confirmation receipt and the sending machine must print a copy of the transmittal receipt and partial first page of the document); or (c) mailed by certified mail or overnight courier service to the address set forth at the end of this Section. Complying notices will be effective when: (w) delivered by hand; (x) sent by fax; (y) deposited in the mail with proper postage prepaid; or (z) deposited with the delivery service. Any such notice to you will be addressed to the Dealership Information set forth on the front page. Any such notice to us will be addressed as follows or faxed to the fax number below:
Bid Hogs, Inc. dba BidHogs.com
980 Broadway, Suite 110
Thornwood, NY 10594
ATTN: General Counsel
Fax: (973) 846-0041
This Agreement will bind and benefit you, us, and our respective successors and assigns. We may delegate any of our obligations under this Agreement and assign this Agreement or any of our rights hereunder, without notice to you. Our assignee will have our rights and remedies involving any assigned rights, without right of set-off or counterclaim. You may not assign this Agreement or any of your rights or obligations under this Agreement. You agree to keep the terms of this Agreement confidential and you will not disclose them to third parties. Your obligations and our rights under Sections 3 through 14 of this Agreement will not expire following its termination. This Agreement will not be interpreted or construed as creating or evidencing any association, joint venture, partnership, or franchise between the parties or imposing any partnership or franchise obligation or liability on either party.
(Two Boxes with “Rep.” and “Dealer” under them respectively)
Last Revised April 26, 2017.