TERMS OF SERVICE

These Terms of Service (“Terms”) govern your access to and use of the Dealerdirect website and its associated services (collectively, the “Website”). By accessing or using the Website, you agree to be bound by these Terms. You may use the Website only if you comply with these Terms and all applicable laws and are not barred from receiving services under the laws of any applicable jurisdiction. “We” “us” and “our” refer to Dealerdirect USA, a California corporation (“Dealerdirect”). “You” and “your” refer to each user of the Website and, as applicable, any individual or entity on behalf of which such individual uses the Website.

1. Definitions
“Bid” means an offer of a specified dollar amount that a Bidder makes, via the Website, to buy a Car.
“Bid Amount” means the dollar amount specified in a Bid.
“Bidder” means a Dealer that makes a Bid.
“Buyer” means the Bidder whose Bid has been accepted by the Provider.
“Cancellation Fee” means the greater of (i) 15% of the applicable Bid Amount or (ii) $250.
“Car” means a used vehicle that is offered for sale on the Website.
“Dealer” means an entity that desires to make Bids.
“Handling Fee” means $250.
“Lot” means a Car to which we have assigned a unique number by which it is identified on the Website.
“Provider” means an individual or entity that offers a Car for sale on the Website.
“Seller” means a Provider who has accepted a Bid.
“Transaction” means, once a Bid has been accepted, the mutual obligations of (a) the Seller to deliver the Car and transfer its title to the Buyer and (b) the Buyer pay the Bid Amount to the Seller, which obligations are subject to modification as set forth in Sections 12 and 13 of these Terms.

2. Account Creation, Access and Termination

You agree that (a) when you create your account, you will not provide any false information and you will not impersonate anyone else, and (b) you will not take any action that will disable the Website or impair its operation.

You are responsible for keeping your account password secure. If there is any unauthorized use of your account, you agree to notify us immediately. You will be liable for any unauthorized use of your account or password and any losses to us or others due to such unauthorized use. We will not be liable for any loss or damage arising from any unauthorized use.

If you violate any provision of these Terms, or otherwise create any actual or potential liability for us, we may restrict or terminate your access to the Website or terminate your account. We will notify you, either by e-mail or the next time you try to access your account, of any such restriction or termination. You may terminate your account at any time. Sections 4 through 11 of these Terms will survive account termination.

3. Dealerdirect’s Responsibilities

We will:
• Assign a Lot number to each Car for which all required information has been properly entered.
• Make information about Cars (including their general geographic locations, but not the identities of their Providers) available to Bidders.
• Accept Bids for each Car during a period of time that we, in our sole discretion, determine to be appropriate (but, in no event, more than 36 hours).
• Make telephone contact with Providers or Bidders if, in our sole discretion, we believe that such contact will facilitate the offer and acceptance of Bids.
• Notify each Provider, via e-mail and a Website link, concerning the highest Bid for the Provider’s Car, including the Bidder’s general geographic location; or, alternatively, notify the Provider that there was no Bid.
• Record Providers’ acceptance of Bids and gather any additional information about the Provider / Seller that may be required.
• If a Provider / Seller accepts a Bid, notify the applicable Bidder / Buyer.
• Once a Bid has been accepted, exchange contact information between Sellers and Buyers, and provide to Sellers and Buyers documents stating their respective rights and obligations concerning their Transactions.
• Send an invoice for the Handling Fee to the Buyer once a Transaction has been consummated.

We will not be responsible for any failure of performance that is due to circumstances beyond our control, including, without limitation, fire, power failure, Internet unavailability, labor action, riot, insurrection, war or any governmental action.

You acknowledge and agree that (a) we are not a broker, and we are not the agent of any Provider, Bidder, Seller or Buyer, and (b) we have no responsibility for (i) the accuracy of information about Cars on the Website or (ii) whether Sellers and Buyers perform their responsibilities concerning Transactions.

4. Dealerdirect’s Ownership Rights

We retain all right, title, and interest in and to (a) the Website, including without limitation any information that you may provide in the course of using the Website and (b) all intellectual property rights in the foregoing.

You may use the Website solely for its intended purpose, which is to facilitate auction-based purchase and sale of Cars by Buyers and Sellers. Without our prior written consent you may not reproduce, publish, transfer, sell, lease, sublicense, distribute, crawl, scrape or make derivative works of the Website or any information contained therein.

5. Your Representations and Warranties

You represent that you reside in the United States of America; you are eighteen (18) years of age or older; and you have the capacity to enter into a valid contract.

If you are using the Website on behalf of another individual or any entity, (a) you represent that such individual or entity resides in the United States of America, and (b) you represent that you currently have, and you warrant that so long as you continue to use the Website you will continue to have, all authority required to use the Website on behalf of that individual or entity and to bind that individual or entity to these Terms.

You warrant that (a) you have the right to provide any information that you do provide in the course of using the Website, (b) to the best of your knowledge, all such information is truthful and accurate, and (c) you will not use the Website in a way that may violate any local, state or national law, regulation or order of any court.

6. Indemnity

You will indemnify, defend and hold us, our officers, directors, employees, agents and representatives harmless from and against any and all claims, damages, losses, costs (including attorneys' fees), or other expenses that arise directly or indirectly out of or from (a) your violation of the Terms; (b) your use of the Website; (c) your violation of the rights of any third party; (d) any claim that information you provided caused harm to a third party; or (e) your failure to pay any taxes owed as the result of any Transaction.

7. Disclaimer of Dealerdirect Warranties

Your access to and use of the Website is at your own risk. You understand and agree that the Website is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Website or any Website content. We will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Website. We have no responsibility or liability for the deletion of, or the failure to store or to transmit, any information maintained by the Website. We make no warranty that the Website will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from us or through the Website, will create any warranty not expressly made herein.

8. Limitation of Dealerdirect’s Liability and Damages
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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE OR GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE WEBSITE; (ii) ANY CONDUCT OF OR ANY INFORMATION PROVIDED BY ANYONE OTHER THAN DEALERDIRECT; (iii) ANY INFORMATION OBTAINED FROM THE SERVICES; AND (iv) UNAUTHORIZED ACCESS TO OR USE OR ALTERATION OF INFORMATION YOU HAVE PROVIDED, WHETHER SUCH DAMAGES ARISE FROM WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

9. Choice of Law, Jurisdiction and Forum

These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your state or country of residence. Any claims, legal proceeding or litigation arising in connection with the Services may be brought solely in the state or federal courts in the City and County of San Francisco, California, and you hereby consent to the exclusive jurisdiction of such courts.

10. Entire Agreement
These Terms are the entire and exclusive agreement between us and you regarding the Website (excluding any services for which you have a separate written agreement with us that is explicitly in addition to or in place of these Terms), and these Terms supersede and replace any prior agreements between us and you regarding the Services.

We may revise these Terms from time to time. If any revision is material, we will notify you via a post on the Website or e-mail to the address associated with your account. By continuing to access or use the Services after any revision becomes effective, you agree to be bound by the revised Terms.

11. General

Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such, or any other, right or provision.

If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

You may not transfer any of your rights or obligations under these Terms without our prior written consent.

There are no third-party beneficiaries of these Terms.

We may change the Website, or limit its availability, from time to time at our sole discretion without prior notice to you.

PROVISIONS APPLICABLE TO PROVIDERS / SELLERS

12. Obligations of Providers / Sellers

You will:

• Provide information about your Car that, to the best of your knowledge, is truthful, accurate and complete.
• Ensure that your Car (i) is properly registered and (ii) is not subject to any liens except those that appear, as applicable, on the Car’s certificate of title.
• Verify or complete personal information that we have about you when you accept a Bid.
• After you have accepted a Bid, (i) contact the Buyer within 48 hours to agree on a date (within 21 days of when you accepted the Bid) and time when you will deliver the Car to the Buyer, and (ii) deliver the Car as agreed and permit the Buyer to conduct a test drive if one is requested.
• Ensure that you have any automobile insurance that may be required under applicable law when you deliver the Car to the Buyer.
• If the Buyer determines, by inspection or by test drive, that the Car is not as represented on the Website, consider in good faith, but without any obligation to accept, any adjustment to the Bid Amount that the Buyer may propose.
• Transfer title to the Car to the Buyer (unless the Buyer has proposed an adjustment to the Bid Amount that you find unacceptable) and accept payment from the Buyer.
• Pay a Cancellation Fee to Dealerdirect if your breach of any of your obligations under these Terms results in a Transaction not being consummated.

PROVISIONS APPLICABLE TO BIDDERS / BUYERS

13. Obligations of Bidders / Buyers

You will:

• Ensure that you are licensed and authorized to buy motor vehicles in all applicable jurisdictions so long as you have a Website account.
• Make Bids (which never are required) only if, in each instance, you intend to pay to the Seller the full Bid Amount if the Car is as represented by the Seller.
• After a Bid has been accepted and the Seller has contacted you, agree with the Seller on a date (within 21 days of when the Seller accepted the Bid) and time for delivering the Car to you.
• Once a Car has been delivered, propose an adjustment to the Bid Amount only if (i) you determine, in good faith, that the Car is not as represented on the Website and (ii) explain that determination to the Seller.
• Once title has been transferred to you, (i) pay the Bid Amount (subject to adjustment as described above) to the Seller and, as applicable, to any lien holders and (ii) pay the Handling Fee to Dealerdirect.
• Pay a Cancellation Fee to Dealerdirect if your breach of any of your obligations under these Terms results in a Transaction not being consummated.


Effective July 1. 2011