TERMS AND CONDITIONS
DEALER SERVICES AGREEMENT
The following terms and conditions (“Terms and Conditions”) along with the Sales Order (“Sales Order”) attached hereto constitute the entire agreement between CDM Field Services, Inc. (“CDM”), its agents, affiliates and third party vendors (collectively “Xcite Advertising”) and the customer identified on the Sales Order (“Customer”). Together, the Terms and Conditions and the Sales Order are referred to herein as the “Agreement.” Capitalized terms shall have the meanings assigned to them herein or as defined in Section 10.
- Overview.This Agreement states the terms and conditions by which Xcite Advertising will deliver, and Customer will receive, the Services provided by Xcite Advertising.This Agreement is intended to cover any and all Services ordered by Customer and provided by Xcite Advertising (the “Services”). Customer may order Services not specified in the Sales Order by a Change/Add Addendum (“Addendum”), which when signed by Customer and CDM shall become a part of this Agreement. References to the Sales Order herein shall include any Addenda.
- Services; Delivery of Services; Certified Programs.
2.1 Services. During the Initial Term of this Agreement and any Renewal Term, Xcite Advertising will provide the following “Services” to Customer as designated on the Sales Order:
Service Visits. A Xcite Advertising Account Representative will make the number of visits set forth on the Sales Order each week to the Customer’s location during regular business hours to photograph and/or capture videos of vehicles, obtain Vehicle Data, and, if applicable, print and apply Window Stickers and/or Buyer’s Guides. Customer agrees to designate the vehicles to be serviced, provide access to the vehicles, place the vehicles in a suitable location for photographing (unless “Photograph Staging” is designated on the Sales Order), and provide pricing and other Vehicle Data requested by Xcite Advertising. Xcite Advertising’s Account Representative will attempt to accommodate, when possible, Customer’s requests with respect to service visit times and dates.
Inclement Weather. If inclement weather or other events beyond Xcite Advertising’s control prohibits any service visit(s) in any week, or if Customer cancels a scheduled service visit, Xcite Advertising may reschedule the service visit(s) to occur in the following week (to be performed in addition to the other regularly scheduled service visit(s)).
NO LIABILITY FOR LOT DAMAGE: XCITE ADVERTISING SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGE TO ANY VEHICLE ARISING OUT OF THE PERFORMANCE OF THE SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO THE STAGING OF VEHICLES.
Canceled Visits. TWENTY-FOUR (24) HOUR NOTICE IS REQUIRED TO CANCEL A SCHEDULED VISIT OR CUSTOMER WILL BE ASSESSED AND AGREES TO PAY A ONE HUNDRED DOLLAR ($100.00) CHARGE.
Vehicle Photographs. For each vehicle serviced, Xcite Advertising will take the number of digital photographs designated by Customer on the Sales Order. The images will be processed into an appropriate file format suitable for internet file transfer (upload). Photo quality often depends on weather conditions and/or other external factors beyond Xcite Advertising’s control, and while Xcite Advertising’s Account Representative will attempt to obtain the best images possible, Xcite Advertising makes no warranty with respect to image quality.
Vehicle Videos. For each vehicle serviced, Xcite Advertising will take a video designated by Customer on the Sales Order. The video will be processed into an appropriate file format suitable for internet file transfer (upload). Video quality often depends on weather conditions and/or other external factors beyond Xcite Advertising’s control, and while Xcite Advertising’s Account Representative will attempt to obtain the best videos possible, Xcite Advertising makes no warranty with respect to image quality.
During the Term of this Agreement, Customer shall be provided access to use Xcite Advertising’s online inventory management tool, as the same may be updated and revised from time to time. Xcite Advertising will upload, generally on the same day as the service visit, the Vehicle Data obtained and vehicle photos taken during the service visit. Customer agrees to comply with the use and other licensing restrictions set forth in the program.
Data Export Services. Xcite Advertising will send the Vehicle Data and vehicle photos by internet file transfer (upload) to the Customer’s Web Site and up to three (3) e-commerce web site(s) designated by Customer (or more, as set forth on the Sales Order).
File Transfer Errors and Delays. The ability to transfer files to any third-party web site(s) is subject to approval by the owner(s) of the web site(s). Xcite Advertising is not responsible for delays in file transfers due to the web site owner/operator’s response time, inability, or unwillingness to accept file transfers.
Window Stickers and/or Buyer’s Guides. Xcite Advertising will provide each vehicle serviced with a Window Sticker that incorporates the applicable Vehicle Data, and/or a Buyer’s Guide. IT IS CUSTOMER’S RESPONSIBILITY TO VERIFY THAT EACH VEHICLE SERVICED BY XCITE ADVERTISING HAS THE APPROPRIATE WINDOW STICKER AND/OR BUYER’S GUIDE AFFIXED AND THAT ALL INFORMATION CONTAINED IN EACH WINDOW STICKER AND/OR BUYER’S GUIDE IS COMPLETE AND ACCURATE. XCITE ADVERTISING ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS and makes no representations, either expressed or implied, to Customer, or any prospective purchaser or owner of any vehicle, as to the completeness or accuracy of the information contained therein (including but not limited to pricing). Xcite Advertising assumes no responsibility for errors or omissions in foreign language translation of Window Stickers or Buyer’s Guides.
2.2 Delivery of Services. Customer agrees to receive and pay for the Services identified on the Sales Order. Customer authorizes Xcite Advertising and its employees and agents to enter Customer’s premises to perform such Services on its behalf.
2.3 Certified Programs. Xcite Advertising is recognized by several manufacturers as a top tier vendor for various certified used vehicle programs (including, for example, the GM CUV/Cadillac Certified Programs operated by General Motors). In connection with these programs, prior to completing the vehicle certification process (including Window Sticker printing and uploading of Vehicle Data), Customer must provide Xcite Advertising with evidence that Customer has complied with all of the manufacturer’s program requirements.
2.4 Cooperation. Customer agrees to cooperate in good faith with Xcite Advertising and its reasonable requests in connection with the delivery of the Services.
The term of this Agreement will commence on the first Service Start Date set forth on the Sales Order and continue for thirty (30) days (the “Initial Term”). Upon expiration of the Initial Term, the term shall be extended automatically for a period of thirty (30) days (“Renewal Term”), unless and until Customer or Xcite Advertising gives the other no less than thirty (30) days’ advance written notice of termination. The Initial Term and the Renewal Term are collectively referred to herein as the “Term.”
- Fees and Payment Terms.
4.1 Payment Terms. Customer will pay all fees due according to the prices and terms listed in the Sales Order. Xcite Advertising will invoice Customer for fees due on a monthly basis. Invoices are due and payable upon receipt.
4.2 Late Payments. Unpaid amounts due Xcite Advertising not received within forty-five (45) days of the invoice date (a “Payment Default”) shall bear interest from the date when due until paid at a rate of one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. Customer also shall pay to Xcite Advertising all expenses incurred by Xcite Advertising in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default, including, but not limited to, reasonable attorneys’ fees and the fees of any collection agency retained by Xcite Advertising. Time is of the essence with respect to the payment of invoices under this Agreement. Xcite Advertising reserves the right to cease providing Services to Customer, suspend services, and/or to terminate this Agreement for untimely payment of invoices. Suspension or termination of Services shall not effect Customer’s obligation to pay for any Services performed prior to suspension or termination. Xcite Advertising’s election not to exercise its right to suspend Services or terminate this Agreement pursuant to this Section shall not constitute a waiver of its right to do so with respect to any subsequent untimely payments.
4.3 Taxes. Customer agrees to pay all sales, value added and other taxes, if any (other than taxes based on Xcite Advertising’s income), related to the delivery of the Services.
- Intellectual Property Ownership.Xcite Advertising grants to Customer a non-exclusive, perpetual, royalty-free, world-wide license and right to use on the Customer’s Web site and in Customer’s marketing materials the digital photographic images of vehicles taken at Customer’s location by or for Xcite Advertising and provided to Customer. Except as expressly set forth herein, this Agreement does not transfer from Xcite Advertising to Customer any Xcite Advertising Technology, and all right, title and interest in and to Xcite Advertising Technology will remain solely with Xcite Advertising. Customer agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Xcite Advertising and/or its third party vendors.
- DISCLAIMER OF ALL WARRANTIES.
THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT CUSTOMER’S OWN RISK. XCITE ADVERTISING MAKES NO EXPRESS OR IMPLIED WARRANTIES IN CONNECTION WITH THE SERVICES. XCITE ADVERTISING DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT ANY GIVEN WEB SITE WILL BE OPERATIONAL AT ANY GIVEN TIME. XCITE ADVERTISING DOES NOT WARRANT THAT THE SERVICES AND ANY INFORMATION OR MATERIAL THAT XCITE ADVERTISING PROVIDES, INCLUDING THE VEHICLE DATA AND VEHICLE IMAGES AND/OR THE USE THEREOF, ARE COMPLETE OR ACCURATE. XCITE ADVERTISING DOES NOT PROVIDE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, OR ANY EXPRESS OR IMPLIED WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY VEHICLE DATA, VEHICLE IMAGES OR OTHER DELIVERABLES OR OF ANYTHING XCITE ADVERTISING MAY PROVIDE.
- LIMITATION OF LIABILITY.
XCITE ADVERTISING SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE, FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFIT, REVENUE, DATA OR GOODWILL, WHETHER INCURRED OR SUFFERED AS A RESULT OF THE USE OF THE SERVICES, THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XCITE ADVERTISING SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. XCITE ADVERTISING WILL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S DATA FILES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF XCITE ADVERTISING. IN NO EVENT SHALL XCITE ADVERTISING’S AGGREGATE LIABILITY FOR ANY CAUSE ARISING OUT OF OR RELATED TO ITS PERFORMANCE OR NON-PERFORMANCE UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR OTHERWISE, EXCEED THE AMOUNT OF THE FEES PAID TO XCITE ADVERTISING AS PROVIDED FOR UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD, IF ANY. XCITE ADVERTISING SHALL NOT BE LIABLE FOR ANY MISTAKES, ERRORS OR OMISSIONS CONTAINED IN OR ON: ANY (I) “INTERNET MARKETING” DOCUMENTATION OR OTHER MATERIALS, OR CUSTOMER WEB SITES, WHETHER HOSTED OR NOT HOSTED BY XCITE ADVERTISING OR ANY OTHER LOCATION TO WHICH THE VEHICLE DATA IS OR ARE DISTRIBUTED; OR (II) WINDOW STICKERS, BUYER’S GUIDES, OR ANY OTHER DOCUMENTATION IN WHICH VEHICLE DATA IS OR ARE CONTAINED, INCLUDING THE FAILURE OF SUCH WINDOW STICKER, BUYER’S GUIDES OR OTHER DOCUMENTATION TO INCLUDE INFORMATION REQUIRED BY APPLICABLE FEDERAL AND/OR STATE LAWS OR REGULATIONS, AND FURTHER INCLUDING ANY WARRANTY INFORMATION OR ANY PROBLEMS OR DAMAGES WITH RESPECT TO A VEHICLE THAT MAY OTHERWISE VOID THE STATED WARRANTY OR WARRANTIES.
Customer shall indemnify, defend, and hold harmless Xcite Advertising with respect to any Claims, sustained by Xcite Advertising to the extent such Claims are based upon: (i) any third party action related to Customer’s use of all or part of the Services; (ii) mistakes, errors or omissions contained in any material, including, without limitation, any report, output or result generated in connection with the use of the Services provided to such third party by Customer; (iii) Customer provided Vehicle Data or other information; and (iv) in connection with the designation of any vehicle as “certified” pursuant to a particular manufacturer’s certification program(s).
9.1 Termination Without Cause During Renewal Term. This Agreement may be terminated by either party at any time during the Term for any or no reason upon either party giving to the other no less than thirty (30) days’ prior written notice of termination. Upon termination of this Agreement, Customer will pay Xcite Advertising all amounts due hereunder for fees through the effective termination date.
9.2 Termination For Cause. In addition to any other rights it may have under this Agreement or applicable law, Xcite Advertising may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a Payment Default, or (ii) Customer’s breach or failure to comply with any other obligation of Customer under this Agreement. Customer may terminate this Agreement if Xcite Advertising breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same.
9.3 Survival. The terms of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, and 13 hereof, and any other provisions of the Sales Order and/or any subsequent Addendum which by their nature are intended to extend beyond termination, shall survive expiration or termination of this Agreement for any reason.
- Definitions.As used herein, “Buyer’s Guide” means that document complying with federal law, either attached to a vehicle window or conspicuously placed inside a vehicle, which contains warranty disclaimer information for the vehicle (as required by law). As used herein, “Xcite Advertising Technology” means Xcite Advertising’s proprietary technology, including Xcite Advertising’s tools, Internet operations design, content, other software tools, hardware designs, software (in source and object forms), user interface designs, know-how, trade secrets and any related intellectual property rights (whether owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Xcite Advertising Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Customer or that have general applicability in the art. As used herein, “Vehicle Data” means the information provided by Customer to Xcite Advertising regarding a vehicle, as well as information Xcite Advertising may obtain from additional sources, such as VIN decoding services, including a particular vehicle’s identification number, the year, make, model, value added options, and manufacturer installed options, and when requested or required by Dealer, engine, drive train, and body and trim level (when available) for that vehicle. As used herein, “Window Sticker” means that document, either attached to a vehicle window or conspicuously placed inside a vehicle, which contains specific vehicle information (as required by law) and graphics including, but not limited to, features, price, and other vehicle details used for marketing purposes.
- Use of Customer’s Name for Marketing and Promotion.Customer agrees that during the Term of this Agreement Xcite Advertising may publicly refer to Customer as a customer in client lists and in other promotional materials and communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages.
- Administration and Maintenance.Routine maintenance and periodic system repairs, upgrades and reconfigurations may result in temporary impairment or interruption in the and other online services. As a result, Xcite Advertising does not guarantee continuous or uninterrupted service and reserves the right from time to time to temporarily reduce or suspend such services without notice.Xcite Advertising reserves the right to take emergency administrative measures including, but not limited to deletion of logs, core dumps, and file purges to ensure proper and optimum server operation.
- Non-Solicitation.Customer agrees that during the term of this Agreement and for a period of twelve (12) months following the termination of this Agreement, it will not, directly or indirectly, on its own behalf or on behalf of or in conjunction with any person or legal entity, recruit, solicit, or employ, or attempt to recruit, solicit, or employ, any independent contractors or employee of Xcite Advertising with whom the Customer had personal contact while performing the Services under this Agreement.In the event that Client directly or indirectly hires an independent contractor or employee of Xcite Advertising, Client will pay Xcite Advertising a fee of ten thousand dollars ($10,000) per independent contractor or employee hired.
- Miscellaneous Provisions.
14.1. Force Majeure. Xcite Advertising shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Customer resulting, directly or indirectly, from any unforeseen or force majeure event.
14.2. Governing Law. This Agreement is made under and will be governed by and construed in accordance with the laws of the state of California (except that body of law controlling conflicts of law). Exclusive venue for all disputes arising out of or relating to this agreement shall be the state and federal courts in California, and each party irrevocably consents to such personal jurisdictions and waives all objections thereto.
14.3. Severability. In the event any provision of this Agreement is held to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.
14.4. Waiver. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
14.5. Assignment. Customer may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Xcite Advertising, and any attempted assignment or delegation without such consent will be void. Xcite Advertising may assign this Agreement in whole or part. Xcite Advertising also may delegate the performance of certain Services to third parties or their third party vendors.
14.6. Notices. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.
14.7. Independent Contractor Relationship. Xcite Advertising is an independent contractor and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Xcite Advertising and Customer. Neither Xcite Advertising nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
14.8. Entire Agreement. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of CDM and Customer.
Authorized representatives of Customer and Xcite Advertising have read the foregoing and all documents incorporated herein and, by executing this Agreement, agree and accept such terms and conditions.