Set-up fee due upon signing. Monthly fees due the 1st of each month in advance, commencing the first full month following launch. Company is entitled to interest on late payments calculated at 5% on all unpaid balances per month until paid in full.
Company and Dealer enter into this Dealer Website Software Agreement upon the following additional terms and conditions.
Dealer agrees to work cooperatively with Company to facilitate the integration of backend systems and Dealer agrees to timely review and approve or suggest changes to website and advertising content created and submitted by Company. In the event Dealer does not respond to such submissions by Company with two (2) business days, such website and/or advertising content shall be deemed approved by Dealer.
Ownership of Intellectual Property. Company is the exclusive owner of all software, documentation and other materials supplied to or created for Dealer (including revisions, modifications and enhancements thereto) and any other specifications, documentation, ideas, know-how, techniques, processes, inventions or other intellectual property that Dealer or its licensors or suppliers may develop, conceive or provide in connection with Company’s performance of the Services, including all patents, copyrights and other intellectual property rights thereto (“Work Product”). Dealer owns its trademarks and all information and data directly or indirectly supplied to Company or supplied by Dealer’s customers or customer prospects. Company grants Dealer a nonexclusive worldwide license to use and sublicense the Work Product during the term of this Agreement for purposes of utilizing the Services pursuant to these Terms and Conditions. Notwithstanding anything else herein to the contrary, Dealer shall have the right to collect, own and use anonymous website and transaction data for purposes of improving, analyzing and promoting its services.
(A) Warranty. Company warrants that Company’s products and services will be of a professional quality conforming to generally accepted industry standards and that they will not infringe the intellectual property rights of any third parties.
(B) WARRANTY DISCLAIMER. OTHER THAN THE EXPRESS WARRANTIES SET FORTH, COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DEALER’S SOLE REMEDY FOR BREACH OF SUCH EXPRESS LIMITED WARRANTIES IS CORRECTION OR REFUND.
THE LIABILITY OF EACH PARTY AND ITS LICENSORS, SUPPLIERS AND SUBCONTACTORS IS LIMITED IN ANY EVENT TO ACTUAL DIRECT DAMAGES TO THE EXTENT CAUSED SOLELY BY SUCH PARTY’S ACTS OR OMISSIONS, UP TO A MAXIMUM LIABILITY EQUAL TO THE AMOUNT PAID BY CLIENT FOR THE SERVICES THAT DIRECTLY CAUSED SUCH DAMAGE. IN NO EVENT WILL EITHER PARTY OR ITS LICENSORS, SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME.
(A) Confidential Information. As a result of the relationship entered into by the parties under this Agreement, the parties acknowledge that they may from time to time require or gain access to information that is confidential or proprietary to one another. All information disclosed by a party hereunder that (1) is in writing and marked with an appropriately restrictive legend indicating the confidential or proprietary nature of the information, (2) is disclosed orally and reduced to a writing marked with an appropriately restrictive legend promptly after the oral disclosure, or (3) by its nature or under the circumstances of its disclosure should reasonably be understood to be confidential is referred to herein as “Confidential Information.”
(B) Obligations. The receiving party (1) shall hold all Confidential Information in confidence; (2) shall use the Confidential Information only for the purpose of performing its obligations under this Agreement; (3) shall reproduce the Confidential Information only to the extent necessary for such purpose; (4) shall restrict disclosure of the Confidential Information to its employees, agents and representatives with a need to know and who are bound to protect the confidentiality of such Confidential Information (and shall advise such employees, agents and representatives of the obligations assumed herein); and (5) shall not disclose or cause to be disclosed the Confidential Information to any third party without prior written approval of the disclosing party, except as allowed under (4) above.
(C) Exceptions. The foregoing restrictions do not apply to Confidential Information that (1) is or becomes a part of the public domain through no wrongful act or omission of the receiving party; (2) was in the receiving party’s lawful possession before the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (3) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (4) is independently developed by the receiving party without reference to or reliance on the Confidential Information; or (5) the disclosing party agrees in writing is free of such restrictions.
(D) Irreparable Injury. Each party acknowledges that any breach of the provisions of this section would result in serious and irreparable injury to the non-breaching party for which the non-breaching party cannot be adequately compensated. Each party agrees, therefore, that, in addition to any other remedy that the non-breaching party may have, the non-breaching party is entitled to enforce the specific performance of this section and to seek both temporary and permanent injunctive relief without the necessity of proving actual damages
(A) Termination. Unless the “Month-to-Month” box on page 1 is selected, this Agreement terminates upon the earliest of:
(1) 30 days after written notice from one party to the other of the defaulting party’s material breach of this Agreement, which breach is not cured within such 30-day period;
(2) immediately upon written notice by either party to the other if the other party (a) becomes insolvent; (b) files a petition, or has a petition filed against it, under any laws relating to insolvency, and the related insolvency proceedings are not dismissed within 60 days after the filing of such petition; (c) enters into any voluntary arrangement for the benefit of its creditors; (d) appoints, or has appointed on its behalf, a receiver, liquidator or trustee of any of such party’s property or assets; or (e) ceases to carry on business in the ordinary course.
(B) Month-to-Month Payment Plan Termination: Termination of Month-to-Month Services shall be effective upon thirty (30) days Notice of Termination by either party.
(C) Annual Payment Plan Termination: Termination of Annual Services shall be effective upon thirty (30) days Notice of Termination by Dealer, and dealer shall be entitled to a refund of any pre-paid monthly fees as to any remaining full three-month periods following the effective date of such termination. By way of example, if a dealer on Annual Services paid up through December 31 gives notice of termination on August 15, the effective date of termination would be September 14 and the Dealer would be entitled to a refund for the remaining quarter of the term, October 1 through December 31.
(D) Survival. Sections 2, 3, 4, 5 and 7 survive any termination of this Agreement.
(E) Effect of Termination. After any termination of this Agreement, Company shall immediately discontinue the provision of all products and services hereunder, including the hosting of any Dealer website, as applicable, Dealer shall promptly pay any unpaid fees earned hereunder or receive any refund owed for Annual Services as described above, and Company shall, promptly upon Dealer’s request, destroy and certify in writing to Dealer that it has destroyed the originals and all copies of all confidential information disclosed by Dealer hereunder.
(A) Independent Contractors. The relationship between Company and Dealer is solely that of independent contractors and not that of employment, agency, partnership or joint venture. Neither party has the authority to represent or bind the other.
(B) Governing Law. This Agreement and all relationships created hereby will in all respects be governed by and construed in accordance with the laws of the State of Washington without regard to its conflict of laws principles. The parties consent to the exclusive jurisdiction of the federal and state courts located in King County, in the State of Washington.
(C) Entire Agreement; Modification. This Agreement and each SOW constitute the entire understanding between Company and Dealer with respect to the subject matter hereof. In the event of a conflict between this Agreement and an SOW, the SOW governs. This Agreement shall not be deemed or construed to be modified, amended or waived, in whole or in part, except by written agreement of the parties hereto. The failure of either party, in any one or more instances, to enforce any of the terms of this Agreement shall not be construed as a waiver of future enforcement of that or any other term.
(D) Assignability. Neither party may assign this Agreement, or any of its rights or obligations hereunder, without the other party’s written consent, which consent shall not be unreasonably withheld, except that either party may assign this Agreement to any of its affiliates or subsidiaries or to a successor in the event of a merger, acquisition or sale of all or substantially all of its assets or capital stock without the other party’s written consent.
(E) Force Majeure. Neither party will be held responsible for any delay or failure in performance of its obligations hereunder to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of terrorism or war, act of God, or other similar causes beyond its reasonable control and without the fault or negligence of the delayed or non-performing party or its subcontractors.