DealerSwap Terms of Use

Welcome to the Terms of Service Agreement ("Agreement"). This is a legal agreement between you and DEALERSWAP LLC, a Masssachusetts limited liability company doing business as DEALERSWAP (hereinafter referred to as "DEALERSWAP," "We," "Us," or "Our"). DEALERSWAP provides the services ("Services") offered through DEALERSWAP.com (the "Site") to You as a registered subscriber or authorized user, subject to the terms and conditions of this Agreement. In this Agreement, "Member," "You," "Your," and "Yourself" refers to an individual accessing the Site, regardless of any particular DEALERSWAP product or Services purchased or licensed. To the extent applicable, "Member," "You," and "Your" also includes the company or organization, if any, on whose behalf an individual is accessing the Site. By accessing the Site, You expressly acknowledge acceptance of the terms and conditions of this Agreement. The Agreement will continue in full force and effect until terminated pursuant to Section 5 (Termination). This Agreement is not a transfer of any of DEALERSWAP’S property, rights or interests nor a license of any of DEALERSWAP’S intellectual property.

Modification

DEALERSWAP reserves the right, in its sole and absolute discretion, to modify the Site, or modify the terms and conditions of this Agreement, without notice or reason given to You. All modified terms and conditions of this Agreement will be effective 30 days after they are initially posted on the Site. If a modification is unacceptable, You may terminate this Agreement by giving notice of termination to DEALERSWAP and following the procedures in Section 5 (Termination). If You do not give DEALERSWAP notice of termination within 15 days of such modification(s), Your continued use of the Site signifies Your acceptance and agreement to be bound by the modification(s) to this Agreement.

Conditions for Membership

DEALERSWAP accepts only those Members that meet DEALERSWAP’S strict membership criteria. Accordingly, DEALERSWAP, in its sole and exclusive discretion, accepts only Members who are actively engaged in automobile industry as resellers, dealers, brokers, service centers, manufacturers, integrators, or variations of the preceding under certain conditions. In the sole and absolute discretion of DEALERSWAP, memberships will not be granted to competitors of DEALERSWAP. Competitors or their affiliates approved for membership by standard, erroneous, or fraudulent means are in violation of this Agreement, will be immediately terminated from Service. DEALERSWAP may, in its sole and absolute discretion, deny membership or Service to any person or entity for any reason or no reason.

Membership

Company Membership

To join the Site as a subscribing company, logon to www.dealerswap.com, choose the appropriate link, and fill out the required information. All information submitted to DEALERSWAP about Yourself and Your company must be valid, current, and accurate to the best of Your knowledge, or denial, termination, or suspension of membership may occur. After filling out and submitting the required information, a DEALERSWAP representative will review Your application. The individual who enrolled Your company will be appointed the company administrator ("Administrator") by default. A DEALERSWAP representative will then e-mail Your Administrator a password ("Password") and login ("Login"). All Logins and Passwords are considered property of DEALERSWAP and are to be used only by the intended person, the Administrator. Violation of this requirement may cause company suspension or termination of its membership and the Services. The Administrator is responsible for approving individuals within Your company to access the Site as Members ("Members"), and is responsible for managing such Members, their actions, and the security levels for such Members. The security levels may be changed by the Administrator or a DEALERSWAP representative, in its sole and exclusive discretion. Once your company has elected to subscribe for DEALERSWAP Services a credit card or other payment information will be required. Subscription fess will commence on the 1st day of every month.

Member of a Subscribing Company

To join as a Member, visit www.dealerswap.com, choose the appropriate link, and fill out the required information. All information submitted to DEALERSWAP about Yourself must be valid, current, and accurate to the best of Your knowledge, or denial, termination, or suspension of membership and the Services may occur. After filling out the required information, a DEALERSWAP representative may, in its sole and exclusive discretion, grant You access by sending You a Login and Password via e-mail, provided Your company application is approved by DEALERSWAP Administrator. All Logins and Passwords are considered property of DEALERSWAP and are to be used only by the intended person, the Member. Violation of this may cause company suspension or termination of Services.

Billing

Your DEALERSWAP Service is billed either on a monthly, semi-annual or an annual basis unless a custom plan is implemented at DEALERSWAP’S sole discretion. There is no minimum length of subscription for the DEALERSWAP service. Your subscription fees are payable in advance and are not refundable in whole or part.

Credit Cards

Accepted credit cards are Visa and MasterCard. Billing will be proactive, taking place on the 1st of the month. Invoices will be emailed on a monthly, semi annually or on an annual basis, and will not be mailed.

Company Checks, Wire Transfers, and ACH Payments

Company checks, wire transfers, and ACH payments are also accepted means of payment. Billing will take place annually. DEALERSWAP will charge a $30 service fee for each check returned NSF or otherwise not honored.

Late Payment

Past due accounts may be suspended or cancelled without notice after any payment due becomes 15 days delinquent. DEALERSWAP reserves the right to charge a late fee of $15 per month on any past due account. You agree to be liable for all attorneys' and collection fees arising from efforts to collect any unpaid balance of your account(s). You agree to be billed for and to pay any outstanding balance in the event of cancellation or termination of Your account upon demand. Unless You notify DEALERSWAP of any billing discrepancies within 90 days after they first appear on Your account statement, they will be deemed acceptable by You for all purposes, including resolution of inquiries made by Your credit card issuer. You waive and agree to release DEALERSWAP from all liabilities and claims of loss resulting from any billing discrepancy or error that is not reported to DEALERSWAP within 90 days of its publication in Your account.

Billing Changes

DEALERSWAP reserves the right, at any time, to change its fees and billing methods, including the addition of supplemental fees or separate charges for online areas, content, or Services provided by DEALERSWAP, which will be effective 30 days after posting such changes on the Site (the "Effective Date"). DEALERSWAP may also elect, in its sole and absolute discretion, to supplement such notice of billing changes through pop-ups, e-mail, or U.S. Mail to the address provided by Your Administrator. If any such change is unacceptable to You, You may terminate Your membership as provided in Section 5 (Termination). Your continued use of the Site after the Effective Date will constitute Your acceptance of such change(s). You acknowledge that the notice efforts outlined in this section are adequate to inform you of any billing changes with respect to the Services.

Termination

This Agreement may be terminated by You upon providing 30 days advance written notice to DEALERSWAP. The method of notice of termination is: e-mail sales@dealerswap.com DEALERSWAP will not provide any refunds under any circumstances to Members. In its sole and absolute discretion, DEALERSWAP may terminate this Agreement and Your access to the Services at any time without notice or reason. In the event DEALERSWAP receives any "ethics complaint" with respect to You, DEALERSWAP may, in its sole and absolute discretion, terminate Your access to the Services. You agree not to mine, harvest or script any data located on this Site; in the event that DEALERSWAP receives any evidence of this activity with respect to You, DEALERSWAP may, in its sole and absolute discretion, terminate Your access to the Services. The aforementioned activities materially interfere with and cause damage to DEALERSWAP’S business; DEALERSWAP may seek monetary damages and / or equitable relief from You as a result therefrom. DEALERSWAP also, in its sole and absolute discretion, may suspend Your access to the Site at any time without notice or reason. In the event Your account is terminated or suspended, no refund will be granted to You.

Access and User Responsibilities

All Logins and Passwords are the property of DEALERSWAP and may be revoked at anytime without notice. Logins and Passwords must be appropriate and unique on the Site. Logins and Passwords are to be used only by the intended person, who is the Administrator or Member. Logins and Passwords supplied to the Member are non-transferable and may only be used by the persons registered under those Logins and Passwords. Unauthorized use may cause company suspension or termination of its membership and the Services. Lost Passwords may be retrieved by logging on to Password Recovery, speaking to Your company Administrator, or contacting a DEALERSWAP representative.

You and Your Administrator are responsible for the deletion of Members and their user information when a Member of Your company quits, is terminated, or engages in conduct that violates the terms of this Agreement. You understand and agree that unauthorized logins are prohibited even when accomplished with legitimate Logins and Passwords. Unauthorized logins include, but are not limited to, competitors and their affiliates, terminated Members, and site hackers.

DEALERSWAP’S Site is protected under copyright and other laws. Any reproduction or distribution of this Site information, by, for, or to any third party, is expressly prohibited.

DEALERSWAP does not represent that its Services are appropriate or available for use in any particular location. Those who choose to access the Services do so on their own initiative and are responsible for compliance with all applicable laws. Membership in, and use of, the Services are void where prohibited. Software from the Services is subject to United States export controls and may not be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country with which the U.S. maintains a trade embargo prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List or Entities List. By downloading or using such software, You represent and warrant that You are not (a) located in or a national or resident of any such country or (b) on any such list or acting on behalf of any person or entity on any such list.

Additionally, You agree that You will not:

• take any action that imposes or may impose (in Our sole and absolute discretion) an unreasonable or disproportionately large load on DEALERSWAP’S infrastructure;
• copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for Your information) from the Site without the prior expressed written permission of DEALERSWAP and the appropriate third party, as applicable;
• interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
• use any robot, spider, scraper, or other automated means to access the Site for any purpose without Our express written permission;
• post content or items in an inappropriate category or area on the Site;
• use the Site for any purpose that is unlawful, fraudulent, or contrary to this Agreement and the policies of DEALERSWAP, and You will cooperate fully with DEALERSWAP to investigate any suspected unlawful, fraudulent, or improper activity, including but not limited to granting authorized DEALERSWAP representatives access to any password-protected portions of Your Member account;
• use the Site if You are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from Our Site;
• interfere with any other Member's listings;
• use the Site in any manner that harasses another Member or could interfere with any other party's use or enjoyment of the Site. You will respect the privacy of others and not use the Site for unwelcome, rude, or abusive communications;
• attempt to gain unauthorized access to any Member account information, computer systems, or networks associated with the Site;
• attempt to obtain any information or materials relating to the Site through any means not intentionally made available through the Site;
• "frame," "mirror," or otherwise copy any portion of the Site without DEALERSWAP’S express written authorization;
• use false identities or impersonate any other person or use a name that You are not authorized to use;
• post false, inaccurate, misleading, defamatory, or libelous content on the Site (including personal information);
• transfer Your Login and/or Password to another party without DEALERSWAP’S consent;
• distribute or post unsolicited bulk e-mail or spam to Members or users of the Site;
• distribute viruses or any other technologies that may burden or harm DEALERSWAP or the interests or property of DEALERSWAP’S Members;
• copy, modify, or distribute content from the Site or DEALERSWAP’S intellectual property, copyrights and trademarks;
• solicit, harvest or otherwise collect information about Members or users, including e-mail addresses; or
• encourage or instruct any other individual to do any of the acts prohibited by this Section 6 or to violate any term of this Agreement or DEALERSWAP’S policies.

Good Faith Clause

Each Member agrees to conduct Site business in an appropriate, honest, and ethical manner, including, but not limited to, accurately describing the Member's company, the Member's information, and the quantity, condition, age, stock status, price, and description of products the Member lists on the Site. Manipulation of the system is expressly prohibited. If any manipulation occurs, DEALERSWAP encourages You to report such conduct. Site business not conducted in good faith may result in suspension or termination of Services in DEALERSWAP’Ssole and exclusive discretion.

Confidential Disclosure

You understand and agree that information disclosed through DEALERSWAP’S Site includes proprietary information belonging to DEALERSWAP. You agree not to copy or disclose to third parties, in whole or in part, any portion of the information, including, but not limited to, Site design, software, navigation, features of the Site, and information concerning other Members and the products they list on the Site. The provisions of this Section 8 (Confidential Disclosure) survive termination or expiration of this Agreement.

Content License

You are solely responsible for all materials, whether publicly posted or privately transmitted, that You upload, post, e-mail, transmit, or otherwise make available on Our Site ("Your Content"). You hereby grant Us, Our affiliates, and Our partners a worldwide, irrevocable, royalty-free, nonexclusive, sublicensable license (through multiple tiers) to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish Your Content and subsequent versions of Your Content for the purposes of (i) displaying Your Content on Our Site, (ii) distributing Your Content, either electronically or via other media, to users seeking to download or otherwise acquire it, and/or (iii) storing Your Content in a remote database accessible by end users, for a charge. This license shall apply to the distribution and the storage of Your Content in any form, medium, or technology now known or later developed.

Unauthorized Use of Copyrighted Materials and Trademarks

DEALERSWAP is, unless otherwise stated, the owner or licensee of all rights in this Site and its contents, software, databases, and Services. The materials contained in this Site are protected by the copyright and trademark laws and other laws of the United States, as well as international conventions and the laws of other countries. No user of this Site has any right, title, or interest in the Site, its content, any intellectual property therein, unless any content, software, databases, or services have been specifically licensed to You in writing by DEALERSWAP or by its licensor.

You are prohibited from using the Site or its Services to transmit, route, provide connections to, or store any material that infringes copyrighted works, trademarks, or otherwise violates, or promotes the violation of, the property rights of DEALERSWAP or any third party.

Release

If You have a dispute with one or more Members or users of the Site, You hereby release DEALERSWAP(and its managers, governors, agents, subsidiaries, joint ventures and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If You are a California resident, You waive California Civil Code §1542, which reads: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states, nations, and jurisdictions waive their rights under analogous laws, statutes, and regulations. The provisions of this Section 11 (Release) survive termination or expiration of this Agreement.

Indemnity

You hereby agree to indemnify, defend, and hold DEALERSAP and all of Our managers, governors, owners, employees, agents, information providers, affiliates, partners, and licensors (collectively, the "DEALERSWAP Parties") harmless from and against any and all allegations, demands, claims, liabilities, damages, losses, fines, penalties, costs, and expenses of whatsoever nature (including attorneys' fees) incurred by any DEALERSWAP Party in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, or trademark infringement arising out of:

• Your use of Our Site;
• Any use or alleged use of Your accounts or Your Login/Password by any person, whether or not authorized by You;
• The content, the quality, or the performance of content that You submit to Our Site;
• Your connection to Our Site;
• Your violation of this Agreement; or
• Your violation of the rights of any other person or entity.

You may not enter into any settlement that adversely affects DEALERSWAP without Our prior written approval. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Us, and You agree to cooperate with Our defense of these claims.

The provisions of this Section 12 (Indemnity) survive termination or expiration of this Agreement.

No Warranty; As Is

THE SITE AND SERVICES AND GOODS OBTAINED THROUGH THE SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH NO WARRANTY OF ANY KIND. DEALERSWAP EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICES, AND ALL COMMUNICATIONS BETWEEN MEMBERS MADE THROUGH THE SITE, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. In addition, DEALERSWAP makes no representation or warranty that the operation of the Site will be error free. Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to You.

The provisions of this Section 13 (No Warranty; As Is) survive termination or expiration of this Agreement.

Limitation of Liability

DEALERSWAP WILL NOT BE LIABLE TO YOU FOR LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS OPPORTUNITIES, LOST DATA OR ANY OTHER DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF DEALERSWAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, DEALERSWAP'S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) the total fees You paid to DEALERSWAP in the 12 months prior to the action giving rise to the liability, or (b) $100. DEALERSWAP WILL NOT BE LIABLE TO YOU FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS IN THE SITE OR SERVICES. Some states or other jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply to You.

Without limiting the foregoing, under no circumstances will DEALERSWAP be held liable for:

• other Members' actions or inactions, including information they post on the Site. You acknowledge that DEALERSWAP is not involved in the actual transactions between Members who are buyers and sellers. DEALERSWAP has no control over and does not guarantee the quality, safety, or legality of items advertised, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction;
• any incorrect or inaccurate information, whether caused by the Site, its users, or by any of the equipment or programming associated with or utilized in the Site. DEALERSWAP will have no responsibility or liability for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Site. DEALERSWAP will not be responsible and assumes no liability for any problems or technical malfunction of any telephone, network, cable or lines, computer, on-line-systems, servers or providers, computer equipment, software, failure of e-mail or players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to participants or to any other person's computer, related to, or resulting from, participating in, or downloading materials of, the Site;
• any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning; or
• any unauthorized use of proprietary or confidential information concerning Your business contacts, including without limitation names and e-mail/business addresses.

Without limiting the foregoing, You acknowledge that the Site contains links to websites controlled by companies other than DEALERSWAP, and You agree that DEALERSWAP is not responsible for and does not endorse, or accept any liability for, the content or use of those websites.

Electronic Communications Privacy Act Notice (18 U.S.C. § 2701-2711): Without limiting the foregoing, DEALERSWAP makes no guaranty of the confidentiality or privacy of any communication or information transmitted on the Site or any website linked to the Site. DEALERSWAP will not be liable for the privacy of the information, e-mail addresses, registration and identification information, disk space, communications, confidential or trade secret information, or any other content transmitted over networks accessed by the Site, or otherwise connected with Your use of the Site.

The provisions of this Section 14 (Limitation of Liability) survive termination or expiration of this Agreement.

Privacy Policy

All of the information that We collect from You, such as registration and credit card information, is subject to Our Privacy Policy. Please click here to see Our full Privacy Policy.

Binding Arbitration

Each Party agrees that any controversy or claim arising out of or relating to this Agreement, the breach thereof, or its subject matter must be settled by binding arbitration in accordance with the commercial arbitration rules (then existing) of the American Arbitration Association. The decision of the arbitrator shall be final and unappealable. The arbitration must be conducted in Wrentham, Massachusetts, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. If a Member files a claim or counterclaim against DEALERSWAP, the Member must do so on an individual basis and not with any other Member or as part of a class action. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings of any arbitration held pursuant to this Section 16. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which hereby is expressly excluded. Notwithstanding anything to the contrary, DEALERSWAP, the Member, or any other party to the arbitration may at any time seek injunctions or other forms of equitable relief from any state or federal court of competent jurisdiction in NORFOLK COUNTY, MASSACHUSETTS (the "Court"), and each party hereby consents to and agrees to submit to the exclusive personal jurisdiction and venue of the Court for the purpose of seeking injunctions or other forms of equitable relief pending the completion of the arbitration.

The provisions of this Section 16 (Arbitration) survive termination or expiration of this Agreement.

Relationship of the Parties

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

Electronic Signature Provisions

You represent and warrant that You have the legal right, power, and authority to agree to the terms of this Agreement on behalf of Yourself and any subscribing Member affiliated with You. You further agree that Your use constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act ("E-Sign") and the Uniform Electronic Transactions Act ("UETA") and that You have formed, executed, entered into, accepted the terms of, and otherwise authenticated this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes of E-Sign, UETA, and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by You and any subscribing Member affiliated with You. You consent to the use of (a) electronic means to provide You with any notices given pursuant to this Agreement and (b) electronic records to store information related to this Agreement and Your use of the Site and Services.

Governing Law

This Agreement and the rights of the parties hereunder will be governed by, interpreted, and enforced in accordance with the internal laws, and not the laws pertaining to choice or conflict of laws, of the State of Massachusetts and the Federal Arbitration Act.

General Provisions

You may not assign or transfer this Agreement or any Member rights or obligations, in whole or in part, by operation of law or otherwise, without the prior written consent of DEALERSWAP, which may be withheld in its sole and exclusive discretion. DEALERSWAP may assign this Agreement in whole or in part without Your consent.

No waiver of this Agreement, or any part hereof, will be binding unless made in writing and signed by the party claimed to have made such waiver. No waiver of any breach or condition of this Agreement will be deemed to be a waiver of any other conditions or subsequent breach whether of like or different nature. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party's rights to enforce subsequently the provision.

This Agreement together with the rules and policies of DEALERSWAP constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

If any provision of this Agreement is, becomes, or is deemed invalid, illegal, or unenforceable in any jurisdiction, (a) such provision will be deemed amended to conform to applicable laws of such jurisdiction so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, it will be stricken; (b) the validity, legality, and enforceability of such provision will not in any way be affected or impaired thereby in any other jurisdiction; and (c) the remainder of this Agreement will remain in full force and effect. Furthermore, in lieu of any invalid, illegal, or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

The provisions of this Section 20 (General Provisions) survive termination or expiration of the Agreement.

Refund Policy

As detailed above, cancellation by You must be in writing with 30 days notice. Setup charges are not refundable under any circumstances, and You are not be entitled to any refund of any monies under any circumstances should this agreement be terminated before the end of the term.

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