This ADVERTISING AND CALL CENTER SERVICE AGREEMENT ("Agreement") is entered into between the Dealer indicated on the Dealer Order Form ("Dealer") and Credit Yes, a Washington LLC ("Agent"). Agent and Dealer may be referred to individually as a "Party" or collectively as "Parties." Concurrently with the execution hereof, Dealer shall complete, execute and deliver (i) the Dealer Order form as attached hereto as Attachment A ("Order Form"). For the purposes hereof, each of the services to be provided to Dealer by Agent pursuant hereto are collectively referred to herein as the "Services."
1. RESPONSIBILITIES OF PARTIES
1.1 Advertising Services: Agent shall manage the Monthly Advertising Budget for local and national advertising campaigns selected by Dealer on the Order Form (the "Advertising Services"). Dealer and Agent shall identify a geographic area ("Service Area") whereby the "Local" Advertising will be placed. Dealer understands that Agent will combine Local and National media buys across multiple media venues.
1.2 Call Center Services: Agent shall provide Call Center Service authorized by Dealer on the Order Form (the "Call Center Services"). As an Agent of the Dealer it is Agent's sole responsibility with respect to the Call Center Services is to perform such services in a professional manner. Agent shall provide the Call Center Services including serving as a call center to make outbound calls and handle inbound calls received from a potential customer of Dealers who complete or begin to complete a Credit Application ("Potential Customers") as a result of the aforementioned services.
1.3 Brand License: Agent will provide Dealer with Banners, Links and point-of-sale displays that Dealer may display on its Website, on-line advertising or in it's dealership. Any other marketing materials used by Dealer, must accurately describe Agent's services and may not mislead Potential Customers. All marketing shall be consistent with and subject to the terms and conditions set forth herein, if applicable, and Agent' policies for the sale of its services (which may from time to time be amended at the sole discretion of Agent). AGENT may not use Agent's name, logo, trademark or other intellectual property of Agent to market any service other than Agent or to direct Potential Customers to services other than Agent. Dealer may not use or purchase Agent trade names for online adverting without the express written consent of Agent. Dealer must comply with all applicable laws, ordinances and regulations, and shall do nothing that would tend to discredit or injure the reputation of Agent or its services. Dealer shall not send Spam, unsolicited emails or junk faxes. Agent may suspend or cancel any Dealer immediately if in the sole discretion of Agent, Dealer's marketing or representations could confuse customers, create economic loss for Agent or damage the reputation of Agent.
1.4 Notification Services: Agent will deliver follow up notifications to Potential Customers who complete a Credit Application as required by law. In addition, Dealer may utilize, subject to the terms hereof, certain of Agent's proprietary software and/or applications (collectively, the "Agent Software") to direct Agent to deliver other notifications to Potential Customers on behalf of Dealer as an agent of the Dealer. The services contemplated by this section are collectively referred to herein as the "Notification Services."
1.5 Reporting Services: In the event that Dealer elects to receive certain reporting services described in the Order Form (the "Reporting Services"), Dealer hereby grants Agent or its affiliates all right and license to access, use or interface with Dealer's computer system, the Agent Software and the data stored in Dealer's computer system solely for the purpose of providing the Reporting Services and for no other reason. Dealer shall also execute such additional agreements as may be required by Agent and/or provide its affiliates all information necessary for the provision of such Reporting Services including, but not limited to, appropriate contact information, login information, appropriate passwords, modem dial-in number, modem speed and account numbers.
1.6 Customer Care: Dealer shall be responsible for timely communications with Potential Customer with regard to the vehicle purchase and financing transaction. In addition, Agent reserves the right to reassign the Potential Customer at anytime, for any reason. Including, but not limited to distance from Dealer, creditworthiness, inventory selection and/or down payment requirement.
1.7 Ownership of "Potential" Customer Data: As between the parties, Potential Customer Data shall be considered proprietary information of Agent. All right, title and interest in the Potential Customer Data will be owned by Agent.
1.8 Confidentiality: Each Party and its affiliates, its agents, subcontractors and employees receiving confidential information of the other party shall use such confidential information only for the purposes set forth herein and shall treat such information as strictly confidential, and shall use the same care to prevent disclosure of such information as such Party and/or its affiliates uses with respect to its own confidential and proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances.
2. PAYMENT TERMS
2.1 Pricing: Dealer shall pay Agent all fees, recurring and non-recurring charges and other charges ("Fees") for the Services in the amounts set forth on the Order Form. Agent shall have the right, at its sole discretion and upon thirty days written notice to Dealer, to add, eliminate, change or otherwise alter the Services to be provided hereunder and/or the Fees to be charged therefore.
2.2 Payment: All Fees are non-refundable and shall be payable in accordance with the payment terms in this Article 2. The Advertising Services are provided on a pre-paid monthly basis ("Service Period") and will be activated upon receipt of full payment by Agent no later than the twentieth (20th) day of the month prior to the next Service Period. For all other Services, Agent shall render invoices to Dealer on a monthly basis. Payment shall be electronically processed through the ACH (Automated Clearing House) program or by Credit Card. Credit Card payments must be approved in advance. Any amounts not paid when due shall be assessed interest at a monthly rate equal to one and one half percent (1.5%) or the maximum rate allowed by law, whichever is less, from the date the payment was due. Dealer authorizes Agent or its affiliates to debit from Dealer's account by electronic means (a) monthly advertising amount set forth in the Order Form (b) upon notice from Agent of any breach by Dealer hereunder (subject to any cure periods set forth in such notice), any amounts due as of the date thereof, in each case plus interest accrued on such amounts; such debits will be processed through the ACH (Automated Clearing House) program or by Credit Card. Agent's rights relating thereto shall survive the termination of this Agreement. If Agent commences legal proceedings and obtains judgment against Dealer to collect any payment due to it hereunder or otherwise in connection with the Services, Dealer shall, to the extent permitted by law, be responsible for and pay all reasonable attorneys' fees, court costs and other collection expenses incurred by Agent.
2.3 Deposit: Dealer shall pay Agent a deposit equal to the amount of one-month Advertising and License Fee set forth by Dealer on the Order Form. Deposit shall remain with Agent until Dealer delivers proper thirty-day written notice of termination. Deposit will then be applied to advertising incurred during remaining thirty-day termination period.
2.4 Taxes and Duties: All charges payable under this Agreement are exclusive of taxes and duties. DEALER shall pay or reimburse AGENT for all value-added, sales, use, property, tangible or intangible property, and similar taxes; all customs, duties, import fees, stamp duties, license fees, and similar charges; and all other mandatory payments to government agencies of whatever kind imposed with respect to products and services contemplated or delivered pursuant to this Agreement. If a transaction is exempt from tax, Dealer shall provide AGENT with a valid exemption certificate or other evidence of such exemption in a form acceptable to AGENT. Each Party hereto shall be solely responsible for all property and income taxes as may be charged or levied upon each Party's respective property or income.
3. TERM; TERMINATION
3.1 Term; Renewal: This Agreement shall commence on the first day of the month following the date accepted by Agent below ("Effective Date") and shall continue for 30 days ("Initial Term"). After the Initial Term, the Agreement shall automatically renew for additional 90-day periods until terminated in accordance with this Article 3. For purposes hereof, the Initial Term and any subsequent renewal terms are collectively referred to as the "Term".
3.2 Termination: Following the Initial Term, either Party may terminate the Agreement by providing 30-day written notice prior to the expiration of the Term.
3.3 Default: Agent may immediately terminate the Agreement: (i) in the event that Dealer fails to make any payment or any other amount when due or (ii) if Dealer experiences a material adverse change in financial condition. In addition, either Party may immediately terminate the Agreement upon written notice if the other Party is subject to a voluntary or involuntary liquidation, dissolution, receivership, bankruptcy, insolvency, assignment for the benefit of creditors, or other similar proceedings.
4. REPRESENTATIONS & WARRANTIES
4.1 AGENT Warranties: AGENT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE NUMBER OF POTENTIAL CUSTOMERS, THE PERCENTAGE OF POTENTIAL CUSTOMERS THAT WILL RESULT IN A SALE, THE CREDITWORTHINESS OR QUALIFICATION OF POTENTAIL CUSTOMERS OR THAT A POTENTAIL CUSTOMER CAN OR WILL QUALIFY FOR FINANCING. ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND NONE OF AGENT, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS MAKE ANY WARRANTIES TO DEALER OR TO ANY OTHER THIRD PARTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT RELATING TO ANYTHING PROVIDED OR USED UNDER THIS AGREEMENT OR DESCRIBED HEREIN.
4.2 Dealer Warranties: DEALER REPRESENTS AND WARRANTS THAT IT WILL HONOR ANY OFFFERS MADE BY AGENT TO POTENTIAL CUSTOMERS ON DEALER'S BEHALF AND WITH DEALER'S APPROVAL PROVIDED THAT ANY CONSUMER RESPONDING TO THE TO OFFER MEET THE SPECIFIC CRITERIA USED TO SELECT THE POTENTAIL CUSTOMER FOR THE OFFER. DEALER FURTHER REPRESENTS AND WARRANTS THAT THEY WILL COMPLY WITH ALL STATE AND FEDERAL LAWS.
5.1 Liability Restrictions:
(a) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ANY OF AGENT, ITS AFFILIATES OR THEIR RESPECTIVE, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, WHETHER BY STATUTE, IN TORT, OR IN CONTRACT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) AGENT'S LIABILITY SHALL BE LIMITED TO THE LESSER OF (i) ACTUAL DIRECT DAMAGES OR (ii) AMOUNTS ACTUALLY PAID (INCLUDING BOTH PRINCIPAL AND INTEREST) TO AGENT BY DEALER IN CONNECTION WITH THE CONTESTED SERVICES OVER THE PRECEDING SIX (6) MONTHS FROM THE TIME THE EVENT RESULTING IN LIABILITY OCCURS. IN THE EVENT OF AGENT LIABILITY PURSUANT HERETO, AGENT MAY ELECT, AT ITS DISCRETION AND SOLE OPTION, TO PAY SUCH REQUIRED AMOUNTS OR PROVIDE A CREDIT AGAINST PRODUCTS OR SERVICES.
5.2 Force Majeure: Agent shall not incur any liability to Dealer on account of any loss or damage resulting from any delay, default or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of Agent in the performance of its obligations under this Agreement.
5.3 Indemnification: Dealer shall, at its expense, indemnify, defend and hold harmless Agent and its affiliates, as well as its officers, directors, employees, managers, contractors, agents, successors, and assigns, from any and all liabilities, damages and related costs and expenses (collectively "Losses") and threatened Losses, arising from, relating to, incurred in connection with (a) Dealers use of the Services provided hereunder; (b) any advertising produced or placed by Dealer; (c) any representations or warranties made by Dealer on behalf of Agent; and/or (d) Dealer's relationship, negotiations or transaction with any Lead.
6.1 Assignment; Relationship of Parties: Dealer may not assign the Agreement or delegate its obligations hereunder, in whole or in part, without the prior written consent of Agent. The Parties are independent contractors, bound to each other only as provided for herein. Neither Party has the authority to bind, act on behalf of or represent the other.
6.2 Severability; Remedies: In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by an arbitrator or a court with jurisdiction over the Parties, such provision shall be deemed to be modified to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remainder of this Agreement shall remain in full force and effect. Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
6.3 Survival; Public Disclosures: Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement (in whole or in part) shall survive any termination or expiration of this Agreement (in whole or in part, as applicable) and continue in full force and effect. Dealer shall not use or display Agent's name, trademark, logo, service mark or trade dress without Agent's prior written consent.
6.4 Governing Law and Venue: This Agreement and performance under them shall be governed by and construed in accordance with the laws of the State of California, without regard to its choice of law principles or the Convention on Contracts for the International Sale of Goods. The exclusive venue for any legal proceeding arising from or related to this Agreement is the federal or state courts located in Clark County in the State of Washington.
6.5 Entire Agreement: No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Dealer may use in connection with the acquisition of services under this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Agent to object to such terms, provisions or conditions. This Agreement and the Order Form constitute the entire agreement between the Parties with respect to the subject matter set forth herein, and supersede all prior agreements, whether written or oral, with respect to the subject matter contained therein. Only a written instrument executed by both parties may modify this Agreement.
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