Motor Marketplace Master Service Agreement
This document sets forth the agreement between the parties, including the order form (together the Master Services Agreement, the “MSA”) which governs the legal relationship between Main Street Daily News Gainesville, LLC, with its principal place of business at 850 Trafalgar Circle, Second Floor, Maitland, FL 32751 (“Marc”) and the Client identified on such order form (“Sales Order”) incorporating by reference (the “Client”) as it relates to advertising and services provided through the Motor Marketplace platform (a vehicle listing service), effective as of the Sales Order effective date (for purposes of these Terms, the “Effective Date”).
The Terms will apply to Marc’s performance of any services related to Motor Marketplace, as identified on the Sales Order (collectively, the “Services”). Unless otherwise specifically stated, the Terms will control over any conflicting terms in any other incorporated document.
- Billing and Payment. Client agrees to pay for the Services in accordance with the Sales Order (the “Fees”). If prepayment is not required, amounts are due within thirty days of the date of the invoice. If any Fees are not timely made, Client will owe a finance charge of 1.5% per month, or the maximum amount permitted by law, whichever is lower, on the amount due, plus all reasonable costs of collection. Marc may increase the Fees for any Service at any time on not less than 30 days’ prior notice to Client.
- Term
2.1 Term. This MSA will continue in effect from the Effective Date through the end of the subscription term specified on the Sales Order (the “Initial Term”), unless otherwise extended or terminated in accordance with the terms hereof.
2.2 Renewal. This MSA and a Sales Order will renew automatically for a further twelve (12) months (“Renewal Term”) on each anniversary of the Effective Date unless either party gives the other written notice of termination at least thirty (30) days prior to the end of the Initial Term or Renewal Term, as applicable. As used in this MSA, “Term” will be taken to mean Initial Term or Renewal Term, as applicable in the context.
2.3 Voluntary Termination. Each party may terminate by giving 30-day prior written notice to the other party.
2.4 Termination for Breach. In the event of any material breach of this MSA by either party, the non-breaching party will have the right to terminate this MSA for cause if such breach has not been cured within fourteen (14) days of written notice from the non-breaching party specifying the breach in detail. Marc immediately may suspend Client’s Services during such cure period if Client fails to make payment due to Marc under this MSA. Any suspension by Marc of the Services under the preceding sentence will not excuse Client from its obligation to pay all amounts due. - Content and Information
3.1 Content Provided to Us: You are responsible for all information, data, text, photographs, graphics, video, messages or other materials provided to Marc. Marc is not responsible for your Content. You grant Marc a worldwide, royalty-free, non-exclusive license to host, distribute and use the Content in order to provide you with the Services and hereby represent and warrant that you have all rights necessary to grant us such license. In connection, Client hereby represents and warrants and covenants: (i) you own the intellectual property rights in that content (or have needed licenses), (ii) the use of the content for our Services does not infringe the intellectual property rights of a third party, (iii) the content is not fraudulent, stolen, or otherwise unlawful, (iv) the content
does not violate any applicable law, statute, ordinance or regulation (including but not limited to, those governing export control, consumer protection, unfair competition, or criminal law), (v) the content does not contain viruses or other computer codes, files or programs which are designed to limit or destroy the functionality of other computer software or hardware and (vi) the content that is information is accurate, complete, clear and not misleading or deceptive (to the extent required by law, you will ensure that the advertised price of a vehicle includes the dealer document/ processing/ vehicle preparation fee or similar charge). Marc reserves the right to refuse any content it considers to be in contravention with any of the above statements. Client agrees to indemnify and hold Marc, its employees, directors, heirs and assigns harmless against all liability, loss, damage and expense of any nature, including reasonable attorneys’ fees, arising out of the Content provided by Client.
You acknowledge and agree that (i) you are responsible for updating in a timely manner any of your Content that ceases to meet the requirements specified above, (ii) Marc does not have the ability or obligation to determine if your Content meets the requirements above and (iii) Marc does not have the ability or obligation to determine where photos or videos of vehicles were derived from and whether such images require additional labels such as being labeled as “stock” to be incompliance with a license (you bear the consequences of any Content violating the requirements specified above). More specifically, if you provide to Marc your offer price for a vehicle to be included in Motor Marketplace, you acknowledge and agree that (a) subject to the exception in clause (b), Marc will display publicly that offer price for that vehicle, and consumers will not be required to submit a lead form to see it, or (b) if you sell makes that are subject to OEM MAAP rules, we will display publicly the MSRP you provide to us for that vehicle. In certain cases, we may provide to a consumer by email an exclusive price you provide to us for this purpose. In all cases, you agree to honor the price for the vehicle that you provide to us for display, for the period for which you have specified to
us (or, if no period is specified, until your Information for that vehicle reflects a different price), and on the terms and subject to the conditions that are included in the Content submitted for that vehicle (subject only to the prior sale of that vehicle).
3.3 Our or Third-Party Intellectual Property and Data: Client acknowledges and agrees that the Services and any necessary software used in connection with the Services contain proprietary and confidential information that is protected by applicable property and other laws. Client further acknowledges and agrees that the content or information presented to the Client through the Services may be protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Any names or trademarks of Marc’s software and any other Marc service marks, logos, and product service names are marks of Marc, and Client agrees not to display or use
Marc’s marks, or the marks of any third-party vendor, in any manner, without the owner’s prior express written consent. In the event of Client’s violation of these proprietary rights and laws, Client shall indemnify and hold harmless Marc and its affiliates against all claims, liabilities, obligations, costs, and expenses arising out of or in connection with such violation. Marc retains ownership of all data, information or material that that is generated through Motor Marketplace. - Disclaimer of Warranty and Limitation of Liability
4.1. Client hereby agrees that Marc is not liable for any failure to carry out Services for reasons beyond its control including but not limited to acts of God, telecommunication problems, software failure, hardware failure, third party interference, Government, emergency on a major scale or any social disturbance of extreme nature such as industrial strike, riot, terrorism and war, pandemic or any act or omission of any third party services.
4.2 Motor Marketplace, together with certain other Services, generate vehicle “Leads” (that is, expressions of interest by a consumer in a specific vehicle identified by year/make/model or by vehicle identification number that are submitted to Marc for transmission to dealers). Marc is not obligated to provide you with a minimum number of Leads. Marc does not guarantee any sales as a result of your use of such Service(s) 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 person or entity any Leads (or any data included in any Leads) delivered to you by Marc.
4.3 ALL SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL MARC OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, LICENSORS, OFFICERS,
DIRECTORS, ACCOUNT PROVIDERS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “MARC”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF MARC SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER
PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, MARC IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF MARC TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES. - Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use or divulge to any third person any such Confidential Information (except for the sole purpose of the Receiving Party fulfilling its obligations or exercising its rights hereunder). Receiving Party may disclose Disclosing Party’s Confidential Information to Receiving Party’s
personnel who have a need to know such information for the purpose of the fulfilling the Receiving Party’s obligations or exercising its rights hereunder and, on the condition such third parties are subject to confidentiality obligations at least as protective as those set forth herein, to third-party subcontractors for the same limited purpose. Receiving Party will be liable for any unauthorized access, use, or disclosure of Confidential Information by any personnel and third parties to whom the Receiving Party discloses such Confidential Information to the same extent as Receiving Party would have been liable hereunder if it had made such unauthorized access, use, or disclosure. The Disclosing Party agrees that the foregoing will not apply with respect to any information after five
(5) years following the disclosure thereof (except with respect to trade secrets which are protected for so long as such information remains a trade secret) or to any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. If the Receiving Party is required to disclose Confidential Information by law, the Receiving Party will promptly notify the Disclosing Party, take reasonable precaution to disclose the minimum amount necessary, and use reasonable efforts to maintain the confidentiality of such
disclosed information. - Notice Marc must notice to the email address or address specified on the Sales Order, and Client must give written notice to (or in both cases, to the latest email addresses and addresses provided to the other party pursuant to this paragraph): Main Street Daily News Gainesville, LLC Attention: JC Derrick 850 Trafalgar Circle, Second Floor, Maitland, FL 32751 jc.derrick@mainstreetdailynews.com With a copy to: Main Street Daily News Gainesville, LLC Attention: General Counsel 850 Trafalgar Circle, Second Floor, Maitland, FL 32751 cpickett@marcmediamail.com
- Miscellaneous If any provision of these Terms is held to be unenforceable, or invalid, for any reason, then that provision is deemed to be modified to the extent required to remedy the unenforceability or invalidity or if it is not possible to remedy the unenforceability or invalidity, that provision is to be severed from these Terms and these Terms will otherwise remain in full force. This Contract shall be governed by the laws of the State of Florida. The parties submit all disputes arising between them to the courts in Orange County, Florida and any court competent to hear appeals from those courts of first instance. These Terms are the entire agreement between the parties regarding the use of this Website and the purchase of any services and supersedes all previous negotiations,
commitments and agreements about the website and the services. Neither this MSA nor the Services may be assigned by Client without the prior written approval of Marc. No joint venture, partnership, employment, fiduciary, or agency relationship exists between Marc and Client as a result of this MSA or use of the Service. The parties hereto are independent contractors under this MSA. Neither party, by virtue of This MSA, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. Marc reserves the right to provide (or to have a third-party provider provide) some or all of the Services from any locations, worldwide. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. The failure of either party to enforce any right, remedy, power, or privilege in this MSA will not constitute a waiver of such right, remedy, power, or privilege unless acknowledged and agreed to by such party in writing; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.