Contract Terms & Conditions
MOTO ACQUIRE TERMS AND CONDITIONS
SERVICES
Subject to the terms of this Agreement and the applicable Order Form(s), Moto Acquire hereby
grants Dealer an exclusive right to access and use the Services during the Term.RESTRICTIONS AND RESPONSIBILITIES
2.1 Dealer will not, and will not permit any third party to, reverse engineer, decompile,
disassemble or otherwise attempt to discover the source code, object code or underlying
structure, ideas, know-how or algorithms relevant to the Services (except to the extent such
restrictions are contrary to applicable law); modify, translate, or create derivative works based
on the Services; use the Services for timesharing or service bureau purposes or otherwise for
the benefit of a third party; or remove any proprietary notices or labels.
2.2 Dealer represents, covenants, and warrants that Dealer will use the Services only in
compliance with Moto Acquire’s standard published policies then in effect and all applicable
international, federal, state, and local laws, guidelines, treaties, regulations, directives, and
regulations, whether now existing or hereafter enacted, in connection with Dealer’s use of the
Services, including those related to advertising, export, data privacy, international
communications and the transmission of technical or personal data, and all compulsory industry
self-regulations, including but not limited to state licensing laws, tax reporting laws, UDAAP and
other laws related to unfair or deceptive acts or practices, the Federal USA PATRIOT Act, the
Payment Card Industry Data Security Standard Requirements (“PCI DSS”), the Federal
Gramm-Leach-Bliley Act, Federal Telephone Consumer Protection Act, the Federal CAN-SPAM
Act, and the EU General Data Protection Regulation (“GDPR”), as they may be amended from
time to time (“Applicable Laws”). Dealer is solely responsible for all data, information, text,
content, and other materials that are uploaded, posted, delivered, provided, or otherwise
transmitted or stored by or on behalf of Dealer in connection with or relating to the Service
(“Dealer Content”). Dealer shall ensure that the Dealer Content is collected, transmitted, and
used in compliance with all applicable laws and regulations (including applicable federal and
state privacy laws and anti-spam laws).
2.3 Dealer shall obtain all rights and consents necessary for Moto Acquire to fulfill its obligations
and exercise its rights as contemplated hereunder, including all rights and consents necessary
under any applicable privacy laws for Moto Acquire to process consumer Personal Identifiable
Information (“PII”) and Personal Data in accordance with this Agreement. Although Moto
Acquire has no obligation to monitor Dealer’s use of the Services, Moto Acquire may do so and
may prohibit any use of the Services it believes may be in violation of the foregoing. Dealer shall
be responsible for maintaining the security of the Dealer account, passwords (including but not
limited to administrative and user passwords) and files, and for all uses of Dealer account.
Dealer shall be responsible for all activity under its account via such passwords.
2.4 Dealer hereby grants Moto Acquire access to Dealer’s instance(s) on any Moto Acquire
system (“Dealer Site”), including but not limited to the Dealer’s Acquire Online instance, and
Dealer Data.
2.5 In connection with the provision of the Services, Moto Acquire has contracted with various
entities to supplement the Services. Such entities include, but are not limited to, Cox
Automotive, Inc. and its affiliates (the “Third Party Providers”). If Dealer uses the products
and/or services of the Third Party Providers, Dealer acknowledges and agrees to the following:
(i) Dealer shall not challenge the ownership rights of any Third Party Provider with respect to
such Third Party Provider’s products and/or services.
(ii) Dealer must comply at all times with all applicable laws, including applicable privacy laws
and any laws relating to unfair competition, deceptive trade practices, advertising, and
consumer protection.
(iii) Moto Acquire does not guarantee the completeness or accuracy of the products and/or
services of Third Party Providers and Moto Acquire shall have no liability if such products and/or
services are incomplete, inaccurate, or flawed in any other manner.CONFIDENTIALITY; OWNERSHIP; FEEDBACK
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”)
has disclosed or may disclose business, technical or financial information relating to the
Disclosing Party’s business (“Proprietary Information” of the Disclosing Party). Proprietary
Information of Moto Acquire includes non-public information regarding features, functionality,
and performance of the Service. Proprietary Information of Dealer includes Dealer Content. The
Receiving Party agrees: (i) to take commercially reasonable precautions to protect Disclosing
Party’s Proprietary Information; (ii) disclose the Disclosing Party’s Proprietary Information to its
employees, consultants or subcontractors only on a need-to-know basis and subject to the
confidentiality obligations imposed herein; (iii) not to use (except in performance of the Services
or as otherwise permitted herein) or divulge to any third person any of Disclosing Party’s
Proprietary Information; (iv) immediately notify the other party upon discovery of any
unauthorized use or disclosure of Disclosing Party’s Proprietary Information, help the Disclosing
Party prevent further unauthorized use or disclosure, and provide the Disclosing Party with
information about the incident as the Disclosing Party may reasonably request; and (v) when the
Disclosing Party’s Proprietary Information is no longer necessary to perform any obligation
under this Agreement, return it to the Disclosing Party or destroy it at the Disclosing Party’s
request.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information
(other than Personal Data) that the Receiving Party can document (a) is or becomes generally
available to the public, (b) was in its possession or known by it prior to receipt from the
Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was
independently developed without use of any Proprietary Information of the Disclosing Party, or
(e) is required to be disclosed by law.
Moto Acquire reserves the right to use Dealer’s name as a reference for marketing or
promotional purposes on Moto Acquire’s website and in other communication with existing or
potential Moto Acquire dealers with the prior consent of Dealer.
If there is any actual or suspected theft of, accidental disclosure of, loss of, unauthorized
destruction of, or inability to account for any Confidential Information by Dealer or any of its
subcontractors or any unauthorized intrusions into Dealer’s or any of its subcontractors’ facilities
or secure systems (collectively, “Security Breach”), Dealer must immediately: (a) notify Moto
Acquire, (b) estimate the Security Breach’s effect on Moto Acquire, (c) investigate and
determine if a Security Breach has occurred with respect to Moto Acquire’s Confidential
Information, (d) specify the corrective action to be taken, and (e) take corrective action to
prevent any further breach and mitigate any damages to Moto Acquire and third parties resulting
from the Security Breach.
Dealer must, as soon as is reasonably practicable, make a report to Moto Acquire including
details of the Security Breach and the corrective action Dealer has taken to mitigate damages
and prevent further Security Breach. Dealer must cooperate with Moto Acquire and all
government regulatory agencies and law enforcement agencies having jurisdiction and authority
for investigating a Security Breach or any related known or suspected criminal activity.
3.2 Moto Acquire shall own and retain all right, title and interest in and to (a) the Services, all
improvements, enhancements, or modifications thereto, whether or not developed based on
Dealer’s suggestions or other feedback, (b) any software, applications, inventions, or other
technology developed in connection with Professional Services or support, and (c) all
intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Moto Acquire shall have the right to collect and
analyze data and other information relating to the Services and related systems and
technologies (including, without limitation, information concerning Dealer Content and data
derived therefrom), and Moto Acquire will be free (during and after the Term) to (i) use such
information and data to improve and enhance the Services and for other development,
diagnostic, and corrective purposes in connection with the Services and other Moto Acquire
offerings, and (ii) disclose such information and data solely in aggregate or other de-identified
form in connection with its business.
3.4 Dealer may from time to time provide Moto Acquire with suggestions or comments for
enhancements or improvements, new features or functionality or other feedback (“Feedback”)
with respect to the Services. Moto Acquire will have full discretion to determine whether or not to
proceed with the development of any requested enhancements, new features, or functionality.
Moto Acquire will have the full, unencumbered, royalty-free, right to use, incorporate, and
otherwise fully exercise and exploit any such Feedback in connection with its products and
services.
3.5 From time to time, Moto Acquire may permit Dealer to use video, imagery, or other content
on the Dealer Site or in promotions for the Dealer Site on an “as is” basis and for no other
purpose (“Moto Acquire Content”). Moto Acquire Content shall not be modified and shall be
used only as approved by Moto Acquire in writing on a case-by-case basis. Dealer shall
indemnify Moto Acquire and its Indemnified Parties under Section 8 for any breach of this
Section 3.5.PAYMENT OF FEES
Unless Moto Acquire expressly agrees otherwise in writing, Dealer shall be required to provide
Moto Acquire (or its payment processor) with valid ACH authorization information or credit card
information for payment of all Fees due under this Agreement. Dealer represents and warrants
that such information is true and complete and that Dealer is authorized to use the applicable
payment method on an ongoing basis as needed for collection of the Fees.
Dealer authorizes Moto Acquire to charge or debit such payment method for all Fees due under
the applicable Order Form(s), including all amounts due upon the Effective Date and all
recurring monthly subscription fees thereafter.
Unless otherwise expressly stated in the applicable Order Form, Dealer shall pay upon the
Effective Date:
(i) any applicable one-time configuration, training, or implementation fee;
(ii) the prorated subscription fee for any Partial Month; and
(iii) where applicable under the Order Form, the first full monthly subscription fee for each
subscribed Service.
For purposes of this Agreement, a “Partial Month” means the period beginning on the date that
is two (2) business days after the Effective Date of the applicable Order Form and ending on the
last day of that same calendar month, unless otherwise expressly agreed by Moto Acquire in
writing. Fees for a Partial Month shall be prorated based on the number of days in such Partial
Month.
Thereafter, monthly subscription fees shall be due and payable in advance throughout the Term
in accordance with the applicable Order Form.
Moto Acquire may, in its sole discretion, decline to countersign an Order Form, delay activation
or launch, or suspend configuration, provisioning, or access if Dealer has not provided a valid
payment method, if initial Fees have not been successfully collected, or if billing responsibility
for subscribed stores has not been clearly established.
If Moto Acquire chooses to bill through invoice and accept payment by check or bank transfer,
full payment for invoices issued in any given month shall be due upon receipt. Unpaid Fees are
subject to a finance charge of 19.56% per annum effective interest rate (1.5% per month)
compounded monthly, or the maximum permitted by law, whichever is lower. Dealer shall be
responsible for all taxes associated with Services other than taxes based on Moto Acquire’s own
net income, payroll, real estate, and personal property.TERM AND TERMINATION
5.1 Initial Term. If the applicable launch, provisioning, or operational start date for a subscribed
Service occurs on any day other than the first day of a calendar month, the period from such
start date through the last day of that calendar month shall be considered a partial month
(“Partial Month”). Unless otherwise expressly stated in the applicable Order Form, the applicable
start date for billing and term-calculation purposes shall be the date that is two (2) business
days after the Effective Date of the applicable Order Form.
The Initial Term for such subscribed Service shall commence on such applicable start date and
shall continue through the end of the time period specified in the Order Form, measured from
the first day of the calendar month immediately following such start date.
5.2 Renewal. Subject to earlier termination as provided below, the Agreement shall be
automatically renewed for additional periods of one (1) month each (collectively, the “Term”),
unless either party provides the other with written notice of non-renewal at least thirty (30) days
prior to the end of the Initial Term or the then-current Renewal Term.
5.3 Termination. Either party may terminate this Agreement (i) upon thirty (30) days’ prior written
notice if the other party materially breaches any of the terms or conditions of this Agreement,
and, if capable of cure, is not cured during such thirty (30) day period, (ii) immediately upon the
institution by or against the other party of insolvency, receivership, or bankruptcy proceedings,
(iii) immediately upon the other party's making an assignment for the benefit of creditors, or (iv)
immediately upon the other party's dissolution or ceasing to do business. Further, Moto Acquire
may immediately suspend access to the Services if Dealer materially breaches this Agreement,
including but not limited to non-payment of past-due fees, until such breach is cured.
5.4 Effect of Termination. Dealer acknowledges and agrees that Dealer is purchasing a
subscription for the entire Initial Term or Renewal Term, as the case may be. As an
accommodation to Dealer, Moto Acquire will invoice Dealer in monthly installments as set forth
above. Upon any termination by Dealer of this Order Form, other than for Moto Acquire’s
uncured material breach of this Agreement, all payments for the remainder of the then-current
term shall be due and payable and Dealer shall pay all such amounts upon receipt of invoice. If
Dealer fails to pay such amounts when due, Dealer shall be liable for continuing interest as set
forth in Section 4 until paid, as well as full recovery of Moto Acquire’s attorney’s fees and
expenses in any action Moto Acquire institutes to recover such amounts.
5.5 Survival. The provisions of Sections 3-4, 5.2, 6.3, 6.4, 6.5, and 7-9 shall survive any
termination or expiration of this Agreement.WARRANTY, UPTIME AND DISCLAIMER
6.1 Moto Acquire represents and warrants that (a) it will perform the Professional Services in a
professional and workmanlike manner and (b) the Services will operate in material conformity
with any specifications set forth in writing by Moto Acquire.
6.2 Moto Acquire will use reasonable efforts to provide the Services in a manner that minimizes
errors and interruptions in accessing the Services, as set forth in the Service Level Agreement
attached as Exhibit C to the Order Form.
6.3 EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN SECTION 6.1, MOTO
ACQUIRE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE
AND TITLE.
Moto Acquire does not warrant that the Services will be uninterrupted or error free; nor does it
make any warranty as to the results that may be obtained from use of the Services.
6.4 Dealer represents and warrants to Moto Acquire that: (a) the entering into and carrying out
of the terms and conditions of this Agreement will not violate or constitute a breach of any
obligation binding upon Dealer; (b) Dealer will provide competent and experienced personnel
under this Agreement and such personnel will perform within industry standards and meet any
service level agreements specified in this Agreement; and (c) Dealer is not subject to any
administrative or enforcement proceedings commenced by the OEM or any federal or state
regulatory agency that would materially and adversely affect the ability of Dealer to perform this
Agreement.
6.5 Dealer represents and warrants that no majority interest of Dealer is owned or controlled,
directly or indirectly, by any person or government from countries that are subject to economic,
trade or transactional sanctions imposed by the United States Government, including, but not
limited to, Burma, Cuba, Iran, North Korea, Syria or Sudan, and that neither Dealer nor any of
its owners, directors, officers, employees or group companies appears on any lists of known or
suspected terrorists, terrorist organizations or other prohibited persons made publicly available
or published by any agency of the government of the United States, or any other jurisdiction in
which Dealer or any of its group companies are doing business, including, but not limited to, the
List of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign
Assets Control of the United States Department of Treasury. Dealer will promptly notify Moto
Acquire if these circumstances change.LIMITATION OF LIABILITY
EXCEPT FOR DEALER’S BREACHES OF SECTION 2 OR USE OF THE SERVICE OR ANY
PART THEREOF EXCEPT AS EXPRESSLY PERMITTED HEREBY, NEITHER PARTY (NOR
ANY OF ITS DEALERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS
AND EMPLOYEES) SHALL BE LIABLE FOR (A) ANY LOST PROFITS, (B) ANY INDIRECT,
PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
THIS AGREEMENT OR ANY DELAY OR INABILITY TO USE THE SERVICES OR (C) ANY
OTHER DAMAGES IN EXCESS OF THE AGGREGATE FEES PAID (PLUS AMOUNTS
PAYABLE) TO MOTO ACQUIRE HEREUNDER IN THE SIX (6) MONTH PERIOD PRIOR TO
THE DATE THE CLAIM FIRST AROSE, IN EACH CASE WHETHER BASED IN CONTRACT,
TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF EITHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING APPLIES TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.INDEMNIFICATION
8.1 Moto Acquire will defend, indemnify, and hold harmless (“Indemnify”) Dealer against any
third-party claim, suit or proceeding (“Claim”) alleging that the Services infringe any third-party
intellectual property right. Notwithstanding the foregoing, Moto Acquire will have no obligation
under this section or otherwise with respect to any infringement claim to the extent based upon
(i) any unauthorized use, reproduction, or distribution of the Services or any breach of this
Agreement by Dealer or any third party permitted by Dealer to use the Services, (ii) any
combination of the Services with other products, equipment, software or data not supplied,
authorized or recommended by Moto Acquire, (iii) any modification of the Services by any
person other than Moto Acquire or its authorized agents or contractors or (iv) any activity after
Moto Acquire has provided Dealer with a workaround or modification that would have avoided
such issue without materially adversely affecting the functionality or availability of the Services.
If Moto Acquire reasonably believes that all or any portion of the Services, or the use thereof, is
likely to become the subject of any infringement claim, suit or proceeding, Moto Acquire will
procure, at Moto Acquire’s expense, for Dealer the right to continue using the Services in
accordance with the terms hereof, replace or modify the allegedly infringing Service to make it
non-infringing, or, in the event the preceding is infeasible or not commercially practicable, Moto
Acquire may, in its sole discretion, terminate this Agreement upon written notice to Dealer and
refund to Dealer any prepaid amounts for unused Services.
8.2 Dealer will indemnify Moto Acquire against any Claim arising due to (i) the Dealer Content
and/or any code not developed by Moto Acquire (including, but not limited to, tracking code) that
Dealer implements, requires, or is required to have Moto Acquire implement infringing any
third-party intellectual property or other third-party right or Dealer acting or failing to act violates
any applicable law or regulation, (ii) Dealer’s breach of Section 2, 6.4, or 6.5 of this Agreement,
(iii) Dealer’s negligence, willful misconduct, fraud, or misuse of the Services, or (iv) the usage of
any Third Party Products by Dealer or any client of Dealer.
8.3 Each Party’s indemnification obligations above are contingent upon the indemnified party
providing the indemnifying party: (a) with prompt written notice of the Claim; provided that failure
to do so shall not relieve the indemnifying party of its indemnification obligations above unless
failure to do so materially prejudices the indemnifying party’s defense of the Claim, (b) sole
control of the defense and settlement of the Claim (provided that the indemnifying party may not
settle any Claim without the indemnified party’s prior written consent unless it releases the
indemnified party of all liability and does not require the indemnified party to admit any liability,
perform any action, or refrain from performing any action); and (c) at Moto Acquire's cost, all
reasonable assistance.MISCELLANEOUS
From time to time, Dealer and Moto Acquire may enter into Order Forms pursuant to which
Dealer will purchase rights to use the Services and/or receive Professional Services. These
Moto Acquire Terms and Conditions apply to any attached Order Forms and all subsequent
Order Forms to the exclusion of any other terms or conditions that either party seeks to impose
or incorporate (except as expressly set forth in any applicable Order Form) or that are implied by
course of dealing.
Neither party will have the right to assign this Agreement, except that either party may assign its
rights and obligations without consent to a successor in interest, in connection with a merger,
reorganization or consolidation or to the purchaser of all or substantially all its relevant assets,
equity or line of business to which this Agreement relates.
The illegality, invalidity, or unenforceability of any provision of this Agreement will not in any
manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement,
and that provision, and this Agreement generally, will be reformed, construed, and enforced so
as to most nearly give lawful effect to the intent of the parties as expressed in this Agreement.
This Agreement and any dispute arising hereunder shall be governed by the laws of the State of
Illinois, without regard to the conflicts of law provisions thereof. The parties agree that any
dispute under this Agreement shall be brought in the federal or state courts located in Cook
County, Illinois, USA and agree to submit to the exclusive jurisdiction of such courts, unless
Applicable Law requires otherwise.
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be
entitled to recover reasonable costs and attorneys’ fees.
Without limiting anything herein, and except for payment obligations, neither party shall have
any liability for any failure or delay resulting from any condition beyond the reasonable control of
such party, including but not limited to governmental action or acts of terrorism, pandemic,
epidemic, earthquake or other acts of God, labor conditions and power failures (“Force
Majeure”).
For all purposes under this Agreement each party shall be and act as an independent contractor
and shall not bind nor attempt to bind the other to any contract.
Any notices in connection with this Agreement will be in writing and sent to the address
specified on the most recent Order Form or such other address as may be properly specified by
written notice hereunder.
Dealer agrees that the parties may undertake certain transactions contemplated by these Terms
and Conditions via electronic signatures. Dealer agrees that by executing any documents
through a recognized third-party electronic signature provider, Dealer is creating a legally valid
and enforceable signature just as if the relevant document was signed by Dealer in hardcopy.