- Trade-In Value: If Dealer has selected to receive the Trade-In Value, Hearst Autos shall: (i) provide Dealer with an active link to the Trade-In Value, Hearst Autos’ online trade appraisal engagement tool, for placement on Dealer’s websites and distribution to Dealer’s customers who access the product through Dealer’s website or other distribution methods, including email newsletters (“End Users”); (ii) deliver trade-in values to End Users who input requested automotive information into the Trade-In appraisal and provided their contact information including, first name, last name, email address and/ or phone number (“Prospect Information”); (iii) deliver the Prospect Information to Dealer for Dealer's exclusive use to contact such End Users in connection with an offer to purchase or sell automobiles; (iv) if Dealer has selected to receive the Enhance service, Hearst Autos shall deliver a script which will open a new tab on the End User’s browser that will run a website with Trade-In Value, enabling the consumer an additional chance to engage with Trade-In Value; and (v) provide the ability to use the eCoupon Service, through which Hearst Autos will deliver to End Users together with their trade-in appraisal, a coupon with details specified by Dealer.
- Credit Score: If Dealer has selected to receive the Credit Score tool, Hearst Autos shall: (i) provide Dealer with an active link to Credit Score, Hearst Autos’ credit score engagement tool, for distribution to End Users, (ii) deliver a credit score to End Users who input the requisite information in Credit Score; (iii) deliver the Prospect Information to Dealer for Dealer's exclusive use to contact such End Users in connection with an offer to purchase or sell automobiles. Dealer acknowledges and agrees that it shall not have any access to a consumer’s credit score as part of Credit Score; and; (iv) if Dealer has selected to receive the Enhance service, Hearst Autos shall deliver a script which will open a new tab on the End User’s browser that will run a website with Credit Score, enabling the consumer an additional chance to engage with Credit Score.
- Advertising: If Dealer has selected to engage Hearst Autos for display advertising, Hearst Autos shall deliver display advertising across Hearst Autos’ portfolio of publisher sites and related audience extensions pursuant to the terms set forth in the Advertising Program Insertion Order Details page of the Agreement In addition to the terms of this Agreement, Hearst Autos shall provide such advertising pursuant to the IAB Standard Terms and Conditions Version 3.0. In the event that any of the terms of this Dealer Service Agreement are inconsistent with the terms of the IAB Standard Terms and Conditions Version 3.0, the terms of this Agreement shall prevail.
- Listings: If Dealer has selected to use the Car and Driver Listings Service (“Listings Service”), Hearst Autos shall list vehicles supplied to Hearst Autos by Dealer from its inventory (each, a “Listing”) on the vehicle listings search pages of caranddriver.com when meeting a visitor’s search criteria. Dealer will have exclusive advertising rights on dealer’s Vehicle Details Pages, (the caranddriver.com sub-page to which the Listing links that sets forth the details of the offered vehicle). If Dealer has selected to receive the Enhanced Listings Service (“Enhanced Listings Service”), dealer shall receive the following services in addition to the Listings Service: (i)Dealer’s two best matched Listings will be displayed and highlighted in the first two search results (Featured Listings) for the Make and Zone purchased by the Dealer and searched for by visitor; and (ii) Dealer’s advertisements will be displayed on the Vehicle Detail Pages of aggregate vehicle listings for those same Make and Zone searches by visitors.
- Payment Tools: If Dealer has selected to use any of the Payment Tools (the “Payment Tools”), they will be provided by DealerScience, LLC (“DealerScience”) and will include: (i) Payment Buttons, which will be made available publicly by the Dealer on the Dealer's primary website. Lease and Finance Calculators will be limited to the Customer Versions within the customer portion of Dealer’s website. The Payment Window will calculate a lease or finance payment on a specific vehicle in inventory to be displayed on a Dealer's website. In addition, these plug-ins Include a calculator on the VDP for customers to customize payments, (ii) Automated Specials Page, which will display custom and/or automatically generated specials for leases, financing, and purchases for a Dealer’s website; and (iii) Payment Search tools, which will list lease and finance payments of cars in a searchable and sortable list to assist finding a certain car in a particular price range.
In addition to the terms and conditions described in this Agreement, all of the Payment Tools, and Dealer’s use thereof, shall be subject to and limited by, the Terms and Conditions of DealerScience, which are located here. The Payment Tools shall be deemed to be the “Service” as that term is defined in the DealerScience Terms and Conditions. In addition, any personnel of the Dealer who use the Payment Tools, must agree prior to such use to the DealerScience End User License Agreement (“EULA”). Dealer hereby accepts and agrees to, and is bound by, the DealerScience Terms and Conditions, including the EULA. The DealerScience Terms and Conditions and EULA shall be deemed to be a material part of this Agreement with respect to the Payment Tools. Solely with respect to Dealer’s use of the Payment Tools, if and to the extent of any inconsistency between the terms and conditions described in this Agreement and the DealerScience Terms and Conditions and EULA, the DealerScience Terms and Conditions and EULA shall control. Dealer acknowledges and agrees that solely with respect to Dealer’s use of the Payment Tools, DealerScience is a third-party beneficiary this Agreement and is entitled to enforce the DealerScience Terms and Conditions and EULA directly against the Dealer.
- Term and Termination: This Agreement begins on the Effective Date set forth on the Dealer Service Agreement and continues until one year from the date hereof. The Agreement shall renew automatically for successive one-year terms unless either party provides notice to the other party of its intention not to renew thirty (30) days prior to the expiration of the then current term. Beginning sixty (60) days after the Effective Date, either party may terminate the Agreement at any time upon thirty (30) days’ prior written notice to the other party. Upon termination, Hearst Autos shall immediately cease providing the Trade-In Value, Credit Score and/or Display Advertising, as applicable, and Dealer shall immediately cease its use of the applicable products and services. Either party may terminate this Agreement immediately by giving notice to the other party if the other party commits a material breach of any of the terms of this Agreement and such breach is not remediable or the breach is remediable, but the breaching party fails to remedy the breach within 14 days of receipt of written notice from the non-breaching party. Without limiting the provisions of Section 5, above, DealerScience may terminate the Dealer’s use of the Payment Tools if the Dealer commits a material breach of the DealerScience Terms and Conditions or the EULA and such breach is not remediable or the breach is remediable but the Dealer fails to remedy the breach within 14 days of receipt of written notice from Hearst Autos or DealerScience of such breach.
- Payment Terms: With respect to the Trade-In Value, Credit Score and Display Advertising and Listings, Dealer agrees to pay the fees shown on the Dealer Service Agreement. With respect to Display Advertising, Hearst Autos will strive to hit the monthly budget and impression allocation in such Dealer Service Agreement. In the case of under/over delivered impressions, Hearst Autos will roll the under/over impressions into the following month's allocation. No invoice will ever exceed the monthly contracted amount. In all cases, Dealer shall pay the invoiced amount within 30 days of invoice. Any amounts not paid within such date shall accrue interest at the rate of 1.5% per month or the maximum lawful rate, whichever is less. Dealer shall be responsible for any and all excise, sales and/or use, or similar taxes (other than taxes on Hearst Autos’ income generally) that arise under this Dealer Services Agreement. Advertiser is liable for all fees and expenses, including attorneys’ fees, reasonably incurred by Hearst Autos in collecting, or attempting to collect, any charges owed under this Agreement.
- Ownership: All right, title and interest in and to the Trade‐In Value and Credit Score services, including, without limitation, the “look and feel” of the services, patents, copyrights, trademarks, and all other proprietary rights shall be owned by Hearst Autos. Hearst Autos reserves the right, in its sole discretion, to modify the services, including, without limitation, a service's features and functionality.
- Representations: Each of Dealer and Hearst Autos represents that it has full power and authority to enter into and perform this Dealer Service Agreement and that it shall comply with all applicable laws, rules and regulations relating to its performance of its obligations hereunder and the operation of its business. In addition, if Dealer elects to use the eCoupon Service and offer a coupon in conjunction with the values provided by Hearst Autos through the Trade-In Value, Dealer represents that it shall: (i) assume any and all liability associated with the coupon; (ii) honor all coupons up to their 10 day expiration, even if Dealer has cancelled the service or suspended its participation in the eCoupon Service and (iii) be solely responsible for compliance with all laws, rules and regulations governing use of the coupon.
- Indemnity: Dealer agrees to indemnify and hold harmless Hearst Autos and its parents, subsidiaries, affiliates, officers, employees and agents, from and against any and all claims, losses, costs and expenses including reasonable attorney's fees arising out of: (i) Dealer’s failure or alleged failure to comply with applicable laws and regulations (including all applicable laws and regulations applicable to the use, collection and storage of the Prospect Information, the Telephone Consumer Protection Act, the display or provision of disclaimers to consumers) in its operation of its business; (ii) Dealer’s breach or alleged breach of this Agreement; (iii) Dealer’s infringement or alleged infringement of any third party’s intellectual property rights; (iv) the content of any advertisements, listings, disclaimers or other materials provided to Hearst Autos; (v) the eCoupon Service and (vi) the Listing Service and Enhanced Listing Service and any transactions resulting therefrom, including claims of false or deceptive trade practices, false advertising, breach of contract or breach of warranty.
- Confidentiality: Dealer shall not disclose the terms of this Dealer Service Agreement or any other confidential information of Hearst Autos to anyone other than its employees, agents and representatives who reasonably require such knowledge in order to implement the purposes of this Agreement. Dealer shall be responsible for any breach or alleged breach of this Section 10 by any employees, agents or representatives.
- Warranty/Limitation of Liability: The Trade-In Value, Credit Score, Display Advertising, Listings, Payment Tools services and any other services, data or products delivered as part of this Agreement are provided "as is" and Hearst Autos makes no representation or warranty, whether express or implied, as to the accuracy of the data or services or that the data is free from errors and omissions, or the merchantability and fitness of the services or data or services for any particular purpose or use. Hearst Autos hereby disclaims any warranties not specifically set forth in this agreement and dealer waives all other representations and warranties, express, implied, statutory or arising by course of dealing or performance, custom, usage in the trade or otherwise. In no event, shall Hearst Autos be liable for the results of Dealer's use of the services. Under no circumstances shall Hearst Autos be liable for any indirect, punitive, special or consequential damages of any kind or lost profits, including without limitation, damages for loss of goodwill, work stoppage, compute failure or malfunction or any and all other commercial damages or losses. Hearst Autos' liability to Dealer hereunder, if any, shall be strictly limited to direct damages not to exceed the amount actually paid by Dealer to Hearst Autos in the previous 12-month period.
- Miscellaneous: This Agreement shall be governed and construed under the laws of the State of New York, without regard to any conflict of law principles. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successor and assigns. The Agreement may not be assigned by Dealer. In the event that any provision contained in this Agreement or the application thereto to any circumstance is for any reason held to be invalid or unenforceable, such provision shall be ineffective to the minimum extent of such invalidity or unenforceability and the remainder of this Agreement will remain valid and enforceable according to its terms. This Agreement terminates and supersedes all previous agreement either oral or written. Any amendments or changes to the terms of this Agreement (including any Insertion Orders or schedules hereto) must be made in writing and acknowledged by Hearst Autos.