This document sets forth the terms and conditions pursuant to which Edmunds.com, Inc. ("we," "our" or "Edmunds") provides advertising, marketing and other services to dealerships, and is referred to below as this "Agreement." When a dealership (referred to below as "you," "your" or "Dealership") submits any Order Form for advertising, marketing or other services, or an on-line sign-up form, to Edmunds and Edmunds accepts it (an "Order Form"), this Agreement will govern the provision by Edmunds of the services described in that Order Form.
- Order Forms: The specific advertising and marketing services to be provided by Edmunds, as well as any widgets or tools to be provided by Edmunds (for example, Edmunds CarCode®, Edmunds Express, Site Enhancer Driven by Edmunds, Edmunds Review Accelerator, Edmunds MyAppraise and MyAppraise Trade-In) (collectively, the "Services"), and the fees for the Services (the "Fees"), are set forth in one or more Order Forms, and this Agreement is incorporated into and made a part of each Order Form. In the event of any conflict between the terms of this Agreement and the terms of an Order Form, the terms of that Order Form shall control. Hand-written modifications to an Order Form will not be effective or binding on Edmunds unless initialed by legal counsel for Edmunds. From time to time, Edmunds may elect to reflect in the form of an email or other electronic communication to Dealership (i) the specific advertising and marketing services, or the widgets or tools, that Edmunds will be providing, and/or (ii) Dealership's request for a modification of the terms of an Order Form (including a modification to the Fees to be paid by Dealership for a Service). Upon the acknowledgement or consent by Dealership to the provision of those services, widgets and/or tools, or to such modification, that electronic communication will be deemed an "Order Form" (or a modification to an Order Form) for purposes of this Agreement.
- Fees: Dealership shall pay the Fees to Edmunds on or before the date each Fee is due. For billing purposes only, Fees payable under each Order Form may be treated by Edmunds as independent of each other. Edmunds may change the Fees for any Service at any time on not less than 30 days' prior notice to Dealership. Edmunds may cease rendering any or all of the Services, without notice to you, in the event you are delinquent in the payment of any Fees or in breach of any provision of this Agreement, but no such action shall terminate the term of any Order Form unless such term is terminated in accordance with Section 4; and no such action shall terminate this Agreement.
- Leads: Edmunds is not obligated to provide you with a minimum number of "Leads" (i.e., expressions of interest by a consumer in a specific vehicle identified by year/make/model or by VIN that are submitted to Edmunds for transmission to dealers). Edmunds does not guarantee any sales as a result of your purchase of the Services and your obligation to pay the Fees is unconditional and not dependent on any such sales. You agree not to resell or otherwise transfer to another dealership or any other entity any Leads (or any data included in any Leads) delivered to you by Edmunds.
- Term and Termination of Order Forms: The term of each Order Form shall commence on actual launch date for the Services specified in that Order Form, and shall continue until terminated by one of the parties. Should either party choose to terminate the term of an Order Form or any Service designated in an Order Form, such party may do so by giving not less than 30 days' prior notice to the other party in the manner set forth in Section 19. In addition, Edmunds has the right to terminate any Order Form immediately in the event: (i) such launch date does not occur within a reasonable time, (ii) you fail to pay any Fees when due, (iii) you otherwise breach any provision of this Agreement, the Order Form or any document referred to in the Order Form, (iv) the Services to be provided by Edmunds under this Agreement are deemed by Edmunds or alleged or determined an appropriate governmental authority to violate any local, state or federal law, rule or regulation, or (v) Edmunds determines in the exercise of its reasonable discretion that you have abused any of the Services. In the event of termination by either party, all amounts owed by Dealership under this Agreement shall become immediately due and payable. Since as of January 1, 2016 Edmunds is offering many of the Services as a "suite" of services, if either party terminates the term of any Order Form or any Service designated in an Order Form entered into after that date, other than in connection with your termination of all Services, you may not be entitled to any reduction in the total amount of your Fees.
Since this Agreement covers all Order Forms, and has provisions that are intended by the parties to survive the termination of the term of all Order Forms, the provisions of Sections 1 through 5, 7, 10 and 13 through 20 of this Agreement shall continue in full force and effect and are not subject to termination by the parties, even if an Order Form is terminated by either party or if this Agreement is terminated or purported to be terminated by either party. In addition, the provisions of Sections 11 and 12 shall continue in full force and effect until such time you cease making all use of the Services described in those sections and the data referred to in those sections.
- Dealer-Supplied Information: You understand and agree that (i) you are responsible for the accuracy, completeness, applicability, compliance with law, rule and regulation, and non-violation of any third party rights (collectively "Compliance") of all vehicle, dealership and other information, and/or creative content or components thereof, provided or made available to Edmunds (by your employees and your agents) for use by Edmunds in connection with the advertising and promotion of you or your vehicles, (ii) Edmunds does not have the ability or obligation to determine the Compliance of that information and, accordingly, you will bear the consequences if the information is not Compliant as provided or made available, and (iii) Edmunds does not have the ability or obligation to determine whether the photos provided or made available for a particular vehicle you offer for sale are of that vehicle or are "stock" photos and, accordingly, does not label as "stock" in any vehicle advertisements any of the photos provided or made available by you; and you will bear the consequences to the extent such photos are not Compliant. In some states, the advertised price for a vehicle is required to include any dealer document/processing/vehicle preparation fee or similar charge. If you are offering new vehicles for sale through Edmunds in one of those states, the Edmunds Dealer Pricing Tool will facilitate your compliance with that requirement. However, if you are offering used vehicles for sale through Edmunds in one of those states, you are responsible for assuring that the advertised price you provide to Edmunds for display includes all such charges.
- Consent to Recording of Calls: From time to time, Edmunds may engage third-party service providers to provide a toll-free number that Edmunds may display on the desktop or mobile versions of any Edmunds website or the Edmunds mobile app (collectively, the "Edmunds Website") for purposes of inducing calls to you (the "Toll-Free Number"). These service providers may, at Edmunds' direction and for its benefit, track and make a recording of those calls. Those recordings will be used for quality assurance, training and related purposes. When recording of such a call is activated, each caller to you will be notified of the fact that recording is occurring (unless you expressly request that these service providers not include such a notification, in which case you agree to yourself provide that notification). In addition, from time to time, Edmunds may arrange for the recording of calls made by you to our staff, or by our staff to your personnel, also to be used for quality assurance, training and related purposes. When recording of such a call is activated for calls to Edmunds, each caller to Edmunds will be notified of the fact that recording is occurring. However, for calls made by Edmunds to your personnel, Edmunds will be relying on your notice to your personnel as provided in the following paragraph.
You expressly agree that (i) you will provide written notice to all "Call Handlers" (that is, all employees or agents who work for you and who may make such recorded calls, or who may receive and answer such recorded calls) that the calls may be monitored and recorded and may be stored and disclosed to third parties, (ii) you will obtain the prior, express written consent of all Call Handlers to such recording before they are allowed to make, or to answer such received calls, and (iii) you will be solely responsible for providing and maintaining such notices and consents.
- Transaction Data: Dealership hereby grants to Edmunds a non-exclusive, worldwide, royalty-free, non-transferable, perpetual license to use Lead status data and vehicle transaction data (to the extent available) obtained from Dealership's dealer management system, customer relationship management system, inventory management system and/or such other dealership system as Dealership may elect to use) (such system(s) being hereinafter referred to as "Dealership's System" and such data being hereinafter referred to as the "Transaction Data"), on the condition that the Transaction Data is used only for the following purposes: (i) consumer, vehicle and industry research and reference, including (a) evaluation of Lead performance, and (b) use as a data point, verification and adjustment of the Edmunds.com True Market Value® prices and True Cost of Incentives® data, (ii) use in market analysis and the generation of other "market intelligence" data, (iii) improving Edmunds' other products and services, and (iv) billing of the Services. Under no circumstances will Edmunds (I) use the Transaction Data in a manner that would disclose to a viewer of any Edmunds Website, or any other third party, the name of Dealership or any consumer, or (II) sell or otherwise license the Transaction Data to any other person or entity (but notwithstanding the forgoing Edmunds may (a) provide the Transaction Data to third-party service providers who provide services to us, or who assist us to improve our data or our services or to better understand their value to our visitors or to the companies with which we do business, on the condition that each such service provider executes an agreement to maintain the confidentiality of the Transaction Data, and (b) communicate Transaction Data relating to a specific consumer who submitted a Lead to that consumer and/or to the dealer who received that Lead). Dealership acknowledges Edmunds may engage the services of one or more service providers to obtain and transmit the Transaction Data from Dealership's System to Edmunds (unless otherwise agreed, at Edmunds' sole cost and expense). If Dealership provides access to Dealership's System for the purpose of Edmunds' obtaining Transaction Data or otherwise facilitates the transfer of Transaction Data to Edmunds, such actions will constitute Dealership's consent to such access to Dealership's System and the use of the Transaction Data as described herein, even if such permission has previously been withheld.
- Dealership License: Dealership hereby grants to Edmunds a non-exclusive, worldwide, royalty-free license to use, copy, encode, store, archive, distribute, transmit and publicly display Dealership logos, marks, trademarks and/or other Dealership intellectual property (the "Marks") provided to and used by Edmunds in performing the Services. Edmunds is further granted the right to sub-license the Marks to its third party service providers providing services to or on behalf of Edmunds. Such right to use said Marks shall be limited to those uses reasonably required to perform the services under this Agreement. Dealership further grants Edmunds all additional rights and licenses (and the right to sub-license such rights and licenses) reasonably required to perform the Services.
- Edmunds Price Promise® and Edmunds.com Used+ Services: If Dealership purchases any Edmunds Price Promise® (or "Your Price") advertising services, the parties agree to the additional provisions concerning Edmunds Price Promise® set forth at the end of this Agreement. If Dealership purchases any Edmunds.com Used+ advertising services, Dealership agrees to the additional provisions concerning Used+ set forth at the end of this Agreement.
- Edmunds CarCode®: Edmunds CarCode® (the "CarCode Service") is a service that provides for text messaging and "chat" communications between you and your potential and actual customers ("Customers"), initiated either by you, or by a Customer using your desktop or mobile website, or any Edmunds Website. Either you or Edmunds may terminate the CarCode Service at any time by giving not less than 30 days' prior notice to the other party in the manner set forth in Section 19.
The provisions of this Agreement that relate to the CarCode Service shall be operative and binding on Edmunds and you if either (i) you have entered into an Order Form for the CarCode Service, or (ii) you or one of your salespeople elects to use the CarCode Service.
You understand, agree and acknowledge that (i) the CarCode Service is solely a platform for facilitating the transmission of text communications between you and Customers at their cell phone numbers, (and for facilitating "chat" communications between you and Customers, if you elect to use that component of the CarCode Service), (ii) text communications are initiated either by Customers or (as described below) by you; and (iii) Edmunds does not (A) provide or source any such cell phone numbers; (B) initiate itself any such communications, unless requested to do so by a Customer; or (C) control the content, timing, frequency or recipient of text or chat communications from you to those individuals.
You agree that you will use the CarCode Service in the manner in which it was designed, which does not include any current or future mechanism or capacity for the automated dialing of cell phone numbers or the storage of cell phone numbers for the purpose of initiating a text communication. You agree that you will not attempt to modify the CarCode Service, or install or use any "plug in" software in connection with the CarCode Service.
You agree that you will use the CarCode Service, and the telephone numbers of Customers obtained through the CarCode Service or obtained independently by you and used in the CarCode service, in a manner that is compliant with all laws and regulations governing such activity, including without limitation the Telephone Consumer Protection Act and Federal Communications Commission regulations promulgated thereunder, any state laws that address the transmission of messages to consumer mobile devices to communicate with Customers, the National Do Not Call Registry, and/or any similar state registry. You agree not to use the CarCode Service for any purpose that is illegal or is otherwise prohibited by applicable law, rule or regulations.
You are advised, and you acknowledge and agree, that Edmunds and its third-party service provider(s) that are used to provide the CarCode Service (including any social media websites or applications from which a Customer elects to initiate use of the CarCode Service) will intercept and have access to the text messages and chat communications between you, your salespeople whom you designate to use the CarCode service on your behalf (as described below), and each Customer who uses the CarCode Service, including the content, timing, frequency and recipient of those communications, the phone number of the Customer who engages in text communications and the CarCode Service phone numbers that are provided by Edmunds to you, and all "metadata" concerning your and your Customers' use of the CarCode Service. Edmunds does not, however, use any of that information in a manner that is detrimental to your interests, for example, by using that information to solicit a Customer to do business with a different dealer.
The CarCode Service includes a feature that allows you to initiate text communications to a cell phone number that you designate, by manually entering that cell phone number and a message that you create into the CarCode Service and asking that Edmunds forward that message to that cell phone number. This feature is referred to as "Dealer-Initiated Texting." You agree that you will use Dealer-Initiated Texting only to initiate a text communication to a Customer for which you have determined that you have, at that time, either the necessary consent from that Customer or the necessary pre-existing business relationship with that Customer, as those are determined under all applicable laws and regulations.
Each time you elect to use Dealer-Initiated Texting to initiate a text communication to a new cell phone number, Edmunds uses a third-party service provider to determine whether the cell phone number you have entered into the CarCode Service is on the National Do Not Call Registry and/or any similar state registry. That service provider requires that you agree that, if you obtain information from or through the CarCode Service that a telephone number of an individual is on National Do Not Call Registry and/or any similar state registry, you will not provide or distribute that information to any other person or entity (other than your own staff); and, accordingly, you hereby agree to comply with this provision.
The CarCode Service permits you to provide the cell phone numbers of your designated salespeople to Edmunds. Those numbers are used by Edmunds to transmit to those salespeople text communications from Edmunds, including automated text communications. You represent and warrant that you have all necessary consent from your salespeople to provide to Edmunds the cell phone numbers you elect to provide, that you have advised your salespeople that they will be receiving text messages on their cell phones from Edmunds, that you will provide accurate cell phone numbers to Edmunds for those salespeople, and that you will be responsible for any error or omission in the information you provide to Edmunds for this purpose. You agree that, at such time as a salesperson whose cell phone number has been provided to Edmunds ceases to be employed by you or withdraws that consent, you will remove his or her cell phone number from the CarCode Service so that he or she does not continue to receive such text messages.
You may delegate some or all of your usage of the CarCode Service to a third-party service provider that you designate (for example, to respond on your behalf to text and/or chat communications from Customers), either in addition to or in lieu of having your staff do so. In such case, you will remain responsible for the use of the CarCode Service by such service provider to the same extent as if such use were by your own staff. You will also be responsible for terminating access to the CarCode Service for such service provider at such time, if any, as you determine to cease using the services of such service provider.
Alternatively, you may delegate to a third-party service provider engaged by Edmunds the responsibility for responding to text and chat communications from Customers. You acknowledge and agree that Edmunds is not responsible for the performance of the services of that service provider, including the content of any communications by that service provider to Customers.
Whitepages, Inc. Provisions: Edmunds may from time to time obtain from Whitepages, Inc. ("Whitepages") certain information concerning the name and other personal information of Customers (which Whitepages obtains from the telephone number used by a Customer), and provide some or all of that information to you. The information that Edmunds obtains from Whitepages and delivers to you is referred to as the "Whitepages Data."
It is a condition to your receipt of any Whitepages Data that you agree to the following:
(a) You represent and warrant that you will comply with the "Whitepages Terms" (set forth below); (ii) you acknowledge and agree that the Whitepages Data is provided to you on an "as is" basis without warranties of any kind; (iii) you acknowledge and agree that Whitepages will not be liable to you in any manner in connection with your use of the Whitepages Data; and (iv) you agree to indemnify, defend, and hold harmless Whitepages from and against all claims, actions, and judgments arising out of your use of the Whitepages Data. You agree that Whitepages shall be a third-party beneficiary of the forgoing with the right to enforce the Whitepages Terms.
(b) The following are the "Whitepages Terms":
You may only use the Whitepages Data for your own internal use, and may not:
(i) use the Whitepages Data for marketing purposes except to respond to an inquiry, application, purchase or transaction or unless contact previously has been initiated with you by the Customer to whom the Whitepages Data pertains;
(ii) publish, offer, sell, license, transmit, distribute, or reproduce the Whitepages Data via any means (other than to your affiliates (i.e., companies that control, are controlled by, or are under common control you)), provided that such affiliates are notified of and abide by the restrictions of this paragraph (b);
(iii) use the Whitepages Data in violation of any applicable law, rule, or regulation (e.g., the Telephone Consumer Protection Act, the Fair Credit Reporting Act, etc.) or in violation of any third-party legal right;
(iv) use the Whitepages Data to violate, if applicable, the requirement regarding registration, certification and payment in connection with access to and use of the National Do-Not-Call Registry;
(v) store or reproduce the Whitepages Data for purposes other than the purposes set forth herein (and storage or reproduction of the Whitepages Data for resale is expressly prohibited); or
(vi) use the Whitepages Data for file download online in a fixed page format.
However, Whitepages has acknowledged that certain of the Whitepages Data may be, accessed or otherwise known or obtained by you other than from or through Whitepages (for example, directly from a Customer). Such data, when otherwise known or obtained by you, is referred to as "Alternatively Sourced Data." Whitepages has agreed that that none of the forgoing restrictions imposed on your use or dissemination of the Whitepages Data is applicable to your use or dissemination of any Alternatively Sourced Data.
You accept all Whitepages Data "AS IS" and acknowledge and agree that Whitepages obtains its data from third-party sources, which may or may not be completely thorough and accurate, and you shall not rely on Whitepages for the accuracy or completeness of the Whitepages Data.
If you cannot or do not agree to the forgoing, please advise Edmunds so that we can assure that you are not provided with any of the Whitepages Data.
- Edmunds Web Tools: Edmunds Express, Site Enhancer Driven by Edmunds, Edmunds Review Accelerator, MyAppraise Trade-In and certain other services provided by Edmunds (collectively, the "Edmunds Web Tools") are web-based informational tools that are provided by Edmunds to dealerships for use either in their stores or on their websites. Edmunds Web Tools may include from time to time: True Market Value® (TMV®) prices for your vehicles and for potential trade-in vehicles; a vehicle comparison tool; vehicle specifications; vehicle configuration; editorial information; Edmunds Price Promise® certificates for your vehicles; and the ability to text and email to, or print out some or all of this information for, a Customer's use.
True Market Value® (TMV®) prices are Edmunds's estimates of the current market prices for vehicles. The TMV® price for a vehicle or a set of vehicles displayed and/or utilized in Edmunds Web Tools is based on the information provided to Edmunds.com by the user of that tool, and any errors or omissions in that information may result in either the display of no TMV® price or an erroneous TMV® price for the applicable vehicle(s). TMV® prices are dynamic and, accordingly are adjusted by Edmunds.com frequently and without notice. No TMV® price may be available at certain times for certain vehicles.
TMV® prices are the copyrighted property of Edmunds.com, and True Market Value® and TMV® are registered trademarks of Edmunds. All rights reserved.
All prices, incentives and rebate information and other information displayed in Edmunds Web Tools are gathered from third-party sources and based on algorithms that are believed by us to be reliable, but we do not verify all such information and no assurance can be given that all such information is accurate, complete or current.
Certain features of the Edmunds Web Tools permit the entry of personally identifiable information of a Customer. That information is subject to the provisions of the Edmunds Privacy Statement.
Certain of Edmunds Web Tools include a feature that allows you to text information displayed in that tool to a cell phone number that you designate, by manually entering that cell phone number into that tool and asking that Edmunds forward that information to that cell phone number. This feature is referred to as "Text Sharing." You agree that you will use Text Sharing only to initiate a text communication to a Customer for which you have determined that you have, at that time, either the necessary consent from that Customer or the necessary pre-existing business relationship with that Customer, as those are determined under all applicable laws and regulations.
- Edmunds Ad Solutions: Edmunds Ad Solutions is an advertising product that offers you the opportunity to (i) advertise your dealership(s) on any Edmunds Website, and (ii) have Edmunds purchase advertising for your dealership(s) on third-party websites selected from time to time by Edmunds, such as Facebook, each with the intention of driving shoppers to your website(s). Please note that between 40 and 50 percent of the amount you are charged for Edmunds Ad Solutions will be spent by us on media purchases for you on Facebook and its properties (and any other third-party websites that are included in Edmunds Ad Solutions); the balance is Edmunds' fee for this service.
As a part of Edmunds Ad Solutions, Edmunds requires that you implement an analytics code on your website(s) ("Code") that will send to Edmunds data about actions that your visitors take ("Ad Solutions Data"). Edmunds will use the Ad Solutions Data solely for the following purposes: (i) reporting and analytics, including demonstrating to you the effectiveness of Edmund Ad Solutions, (ii) optimizing the manner in which Edmunds Ad Solutions is operated and managed for you, including by modifying or refining the audience to whom your advertisements are displayed, and (iii) for Edmunds' internal purposes, including the optimization and management of our products and services.
Edmunds will not use the Ad Solutions Data for the purpose of advertising retargeting (unless you expressly request), or any advertising for other dealers or any other third parties.
Ad Solutions Data will not be disclosed to other dealers or other third parties unless we have your permission or are required to do so by law or legal process, or unless such data is aggregated with Ad Solutions Data from other dealers in a manner that does not disclose to the recipient the identity of any of the dealers. However, Edmunds may provide Ad Solutions Data to third-party service providers who provide services to us, or who assist us to improve our data or our services or to better understand their value to our visitors or to the companies with which we do business, on the condition that each such service provider executes an agreement to maintain the confidentiality of the Ad Solutions Data.
- Data Other than the "Transaction Data" (as defined in Section 7) and "Ad Solutions Data" (as defined in Section 12): Edmunds may, in the course of performing services to you obtain data relating to you and your business (for example, inventory listings and related inventory data). You agree that (i) Edmunds may obtain your inventory listings and related inventory data from you, your agents and/or your service providers, (ii) Edmunds may use and provide such data to the entity(ies) that assist us in providing those services, including in connection with advertising and marketing services provided on behalf of Edmunds on third-party properties (e.g., Facebook); and (iii) Edmunds may provide such data (excluding, however, any such data that is generally regarded as "personally identifiable information") to other third parties in the conduct of our business.
- Sharing of Data and Information: If one of your stores holds a franchise to sell new vehicles, Edmunds may share data and information it obtains from you (including but not limited to the types of data described above in the sections describing Edmunds CarCode, Edmunds Express/Site Enhancer Driven by Edmunds, and Edmunds Ad Solutions, as well as data generated through the implementation of other widgets or tools provided by Edmunds) — as well as any other information concerning your websites or customers that Edmunds may have or obtain — with the manufacturer or distributor who granted you that franchise and with any affiliated entities, agents and contractors of that manufacturer or distributor. In addition, if you engage or have engaged a third party to operate or manage any of your websites, Edmunds may share any such data and information with that third party. You consent to the sharing of data and information as set forth in this section.
- Dealer Ratings and Reviews: It is Edmunds' policy not to publish consumer ratings or reviews for any dealer that offers any payment or other form of consideration or incentive to submit a dealer rating or review for posting on Edmunds.com. For additional information on our policies concerning the posting of dealer ratings and reviews and related matters, see https://help.edmunds.com/hc/en-us/articles/206103287-Reviews-for-Your-Dealership-on-Edmunds-com.
- Warranties/ Limitation of Liability/Indemnification: You represent and warrant that you have all licenses required by applicable laws and regulations to operate your automobile dealership, and possess the required franchise(s) to represent the new vehicle brands you sell, and that you are, and will remain, in compliance with all applicable laws and regulations in your regular business and the use of the Services.
EDMUNDS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND LICENSES PROVIDED HEREUNDER AND ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT SHALL EDMUNDS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (AND WHETHER OR NOT EDMUNDS OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF USE OF MONEY, LOSS OF DATA OR INTERRUPTION IN ITS USE OR AVAILABILITY, STOPPAGE OF WORK, IMPAIRMENT OF ASSETS OR OTHERWISE ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHERWISE, AND WHETHER BASED ON ANY PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE SERVICES (INCLUDING THE EDMUNDS CARCODE SERVICE), OR ANY TRANSACTION PERFORMED OR UNDERTAKEN UNDER OR IN CONNECTION WITH THIS AGREEMENT. THE PRICES WE DISPLAY FOR VEHICLES ADVERTISED BY YOU ARE GENERALLY CALCULATED BY US BASED ON DATA AND RULES SUPPLIED TO US BY YOU, BY INTERMEDIARIES WHO TRANSMIT DATA FROM YOU TO US, AND BY THE VEHICLE MANUFACTURERS; WE ARE NOT RESPONSIBLE FOR ANY ERRORS IN SUCH DATA OR RULES, OR FOR ANY ERRORS THAT MAY OCCUR IN THE MANNER IN WHICH WE APPLY SUCH DATA AND RULES TO DETERMINE THE VEHICLE PRICES DISPLAYED. EDMUNDS' AGGREGATE LIABILITY FOR ACTUAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY DEALERSHIP DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. You agree to indemnify and hold harmless Edmunds and its affiliates, and their respective officers, directors, shareholders, members, employees and agents (each of the foregoing, a "Covered Party") from and against any and all liabilities, losses, damages, judgments, costs and expenses (including reasonable attorney's fees and costs of any investigation or action related thereto) incurred by, or imposed on or asserted against, a Covered Party in connection with a claim, suit or other proceeding by a third party arising out of or relating to (i) your performance under this Agreement, including your use of the CarCode® Service, (ii) your breach of this Agreement, including the breach of any representation or warranty, (iii) any claim by a Customer relating to the purchase, lease or servicing of any vehicle or other product or service from you, (iv) any error, omission, misconduct or negligence by you or your franchisees, or any of their officers, directors, shareholders, members, employees or agents, or (v) your failure to comply with any law, rule or regulation applicable to your business or your performance hereunder.
- Governing Law; Venue: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California applicable to agreements made and to be performed in such state. Each party hereby consents and agrees that the state or federal courts located in the county of Los Angeles, State of California shall have exclusive jurisdiction to hear and determine any and all claims or disputes between or among the parties pertaining to this Agreement or to any matter arising out of or relating to this Agreement; provided, however, that nothing in this Agreement shall be deemed or operate to preclude Edmunds from bringing suit or taking other legal action in any other jurisdiction, or to enforce a judgment or other court order in favor of Edmunds. Each party expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and each party hereby waives any objection that such party may have based upon lack of personal jurisdiction, improper venue or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Each party hereby waives personal service of the summons, complaint or other process issued in any such action or suit and agrees that service of such summons, complaint or other process may be made by overnight courier or delivery service addressed to such party (i) if to Dealership, at the address set forth in an Order Form; and (ii) if to Edmunds, at 2401 Colorado Avenue, Santa Monica, California 90404, Attention: General Counsel; and that service so made shall be deemed completed upon such party's actual receipt thereof.
- Severability: In the event any provision of this Agreement becomes or is determined by a court of competent jurisdiction to be illegal, invalid, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Agreement. The balance of this Agreement shall be enforceable in accordance with its terms.
- Notices: All notices and other communications called for or contemplated by this Agreement and sent by Dealership to Edmunds shall be sent by email to firstname.lastname@example.org, and shall be deemed given to Edmunds when actually received at that email address. All notices and other communications called for or contemplated by this Agreement and sent by Edmunds to Dealership shall be deemed given to Dealership (i) when delivered to Dealership by hand or by overnight courier or delivery service, or (ii) when sent to dealership by email. Dealership's contact information for all notices is as set forth on the corresponding Order Form.
- Miscellaneous: The individual who signs an Order Form on behalf of Dealership represents to Edmunds that he/she is fully authorized to sign that Order Form and to bind Dealership to the obligations described in that Order Form and in this Agreement. This Agreement and the Order Form(s) constitute the entire agreement between the parties regarding the subject matter hereof, and shall supersede all prior understandings and documents in connection with such subject matter, and may not be amended except by an instrument in writing signed on behalf of both you and Edmunds. No waiver of any provision of this Agreement shall be effective unless set forth in an instrument in writing signed by the party to be bound thereby or an email from an authorized representative of such party. No delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise of that or any other right, power or remedy. No provision of this Agreement shall be construed in favor of or against either of the parties by reason of the extent to which either such party or its counsel participated in the drafting hereof. Section headings have been inserted for convenience of reference only, are not a part of this Agreement and shall not be used in construing this Agreement. You agree to pay any tax (other than income or any equivalent tax) imposed by any governmental taxing authority as a result of the rendering of the Services. Edmunds and Dealership are independent contractors in connection with this Agreement, and nothing shall be deemed to make them partners or joint venturers. This Agreement is non-transferable and is non-assignable by you without prior written approval by Edmunds. This Agreement and the rights and duties hereunder may be assigned by Edmunds to any of its affiliates without notice to you. Edmunds may engage third-party service providers selected by Edmunds in its sole discretion, including affiliates of Edmunds, to assist in performing services under this Agreement. The provision by Edmunds of any of the Services does not constitute a license to use any of the data displayed in or by those Services.
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Edmunds Price Promise® Commitments
If you have signed up for the Edmunds Price Promise® program, we are excited that you have chosen to engage with car shoppers on a deeper level. We have outlined below the commitments required from each party that have proven essential to the success of this program.
You acknowledge that the purpose of the Price PromiseSM program is to highlight the savings to Edmunds visitors reflected by the difference between the price for your vehicles displayed on an Edmunds Website (i.e., the Price PromiseSM price) and the price for your vehicles displayed at the same time in all other venues (other websites, newspaper ads, etc.) (i.e., the feed price). Accordingly, you agree that it is your responsibility to assure that the feed price for each vehicle listed is equal to the price at which that vehicle is concurrently offered in all other venues; in fact, certain states may require you to offer in your showroom the same price to all consumers.
In connection with the Price PromiseSM program, Edmunds commits to:
- Provide personalized, dedicated program support.
- Deliver a personalized training program for your dealership within 60 days of launch.
- Provide access to an online pricing tool to streamline inventory pricing.
- Review product performance monthly.
- Provide consistent follow-up and evaluation of your dealership sales process.
- Provide online access to near real-time performance reporting.
- Help you source your sales and provide insights into lost sales.
- Maintain a process for updating on a daily basis the Price PromiseSM price displayed on Edmunds.com for a unit of inventory after receipt of pricing changes.
As a Price PromiseSM dealer, you commit to:
- Set and honor your dealer commitments, and acknowledge and agree to the important information about Price PromiseSM offers, set forth in the Order Form.
- Price 80% or more of your inventory.
- Provide and update your inventory and Price PromiseSM prices as necessary to ensure what is displayed on Edmunds.com reflects the inventory on your lot.
- Provide a Price Disclaimer that is clear, accurate and complete; that includes all applicable eligibility requirements; and that lists all items not included in the Price PromiseSM price. Update the Price Disclaimer promptly as required.
- Honor each Price PromiseSM price that is provided to Edmunds through the last day of the calendar month in which that price is displayed by Edmunds -- which means you agree to sell for such price, at any time during that month, the applicable unit of inventory to any consumer who views such price on Edmunds (subject only to prior sale, to the consumer meeting the eligibility requirements, if any, in the Price Disclaimer, and to the exclusions in the Price Disclaimer).
- Assign a dedicated Price PromiseSM representative who will respect the Price PromiseSM customer by acknowledging that they have selected a vehicle and have received a Price PromiseSM certificate.
- Participate in a Price PromiseSM on-boarding meeting to ensure full Dealership buy-in of the Price PromiseSM program and to adopt best practices for program success.
- Provide your dealership sales data report to Edmunds monthly.
- Commit to review and discuss your program results with Edmunds on a monthly basis.
In addition, you acknowledge and agree that (i) a deduction for unconditional OEM customer incentives will be applied to your Price PromiseSM offer by Edmunds, and (ii) the destination fee, which must be included in your MSRP and Price Promise offer, will be displayed on the Edmunds Price PromiseSM Certificate.
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Edmunds Used+ Commitments
If you have signed up for the Edmunds Used+ program, we are excited that you have chosen to engage with car shoppers on a deeper level. We have outlined below the commitments required from you that have proven essential to the success of this program.
- You acknowledge that the purpose of the Used+ program is to highlight the savings to Edmunds visitors reflected by the difference between the price for your vehicles displayed on an Edmunds Website (i.e., the Used+ Price) and the price for your vehicles displayed at the same time in all other venues (other websites, newspaper ads, etc.) (i.e., the Feed Price). Accordingly, you agree that it is your responsibility to assure that the Feed Price for each vehicle listed is equal to the price at which that vehicle is concurrently offered in all other venues; in fact, certain states may require you to offer in your showroom the same price to all consumers.
- You agree that you will inspect, repair and recondition each used vehicle offered through Used+ in a manner consistent with consumers' reasonable expectations for such vehicle and all applicable legal requirements (including safety standards); and you acknowledge and agree that your failure to do so is grounds for immediate termination by Edmunds of your Edmunds Used+ Order Form. You further agree to (i) document and maintain proof of inspection, repair and reconditioning of all used vehicles offered through Used+, and (ii) upon request made at any time by Edmunds or the company that provides the Total Vehicle Protection Plan to the purchasers of such used vehicles, deliver to Edmunds or that company proof of inspection, repair and reconditioning of any or all such used vehicles.
- You acknowledge and agree to the following with respect to any Vehicle Assurance Program we may offer:
- Edmunds may from time to time offer a Vehicle Assurance Program to visitors to an Edmunds Website who purchase a used vehicle from Dealership. This program currently consists of (i) 30 day/1,000 mile Total Vehicle Protection Plan, and (ii) a 12-month/24-hour per day roadside assistance program, both of which are currently provided through CarChex, a vendor that Edmunds.com has engaged for this purpose.
- Edmunds is not the provider of the Vehicle Assurance Program benefits. Dealership acknowledges that the Total Vehicle Protection Plan is not available for vehicles with more than 120,000 miles, or any model that is more than 20 years older than the current calendar year, as well as certain exotic and specialty brands. See the CarChex website for a description of the vehicles that are not eligible.
- After an Edmunds visitor purchases a used vehicle from Dealership, that purchaser will receive the benefits of the Vehicle Assurance Program if he or she activates his or her participation.
- When in effect, the Vehicle Assurance Program will be offered for all of your used inventory. However, Edmunds reserves the right to discontinue offering the Vehicle Assurance Program to its visitors at any time and without notice to Dealership (either generally or only for certain dealers).