Move cars off the lot faster than you can drive them
AutoRaptor LLC ASP Subscription Agreement
Terms of Service
Updated November 07, 2023
Under the terms of this Agreement Autoraptor LLC (“AR”) will provide You online use (via the Internet) of AutoRaptor CRM automobile sales solution, including any mobile application used to interface with the online solution (“AutoRaptor”), together with the support and technical services as more fully set forth below (the “Services”).
AutoRaptor LLC hereby grants You a non-exclusive, non-transferable, right to use and access the Service via the Internet, solely for Your own internal business purposes, subject to the terms of this Agreement. You and Your employees may only access the Services via the Internet and while physically present at the Licensed Site or Sites (as defined in Section 2) for which You have expressly purchased the Services by entering into a “Licensed Site Addendum” with AR. All rights not expressly granted to You are reserved by AR.
AR shall make the Services accessible 24 hours, seven days a week, provided, however, that from time to time, AR may perform scheduled or unscheduled maintenance as may be necessary to maintain the proper operation of AutoRaptor, and access to AutoRaptor and the data You have input into AutoRaptor that is stored by AR (“Hosted Data”) may be impaired or interrupted while such maintenance is being performed. AutoRaptor LLC may conduct scheduled maintenance between the hours of 12 a.m. and 8 a.m. Eastern Time, United States, or such time period as AR may from time to time substitute by providing notice to You (including by posting an electronic message or bulletin to You, or to all subscribers, on AutoRaptor).
AR shall provide reasonable phone support for technical and use related questions during its normal business hours.
You shall be solely responsible for Your Internet connection (the speed of which may have a significant impact on the responsiveness of the Service), including all access lines, all Internet service provider connection charges, and any long distance telephone charges. Except as permitted by the functionality of AutoRaptor, You shall not and shall not allow your employees to access, attempt to access, copy, modify, nor interfere with AutoRaptor, the Service, or AR’s computer systems (collectively, the “AR Systems”), or use AutoRaptor, the Service for any purposes beyond the scope of access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any employee or third party to: (i) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, otherwise make available the Services; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services; (iii) remove any proprietary notices from the Services; or (iv) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates the intellectual property or other right of any person, or that violates any applicable law. The use of tools that injects or otherwise changes AutoRaptor’s application code is prohibited.
Notwithstanding anything to the contrary in this Agreement, AR may temporarily suspend Your access to any portion or all of the Services if: (a) AR reasonably determines that (i) there is a threat or attack on any of the AR Systems; (ii) Your use of the Services disrupts or poses a security risk to the AR Systems or to any other customer or vendor of AR; (iii) You are using the AR Systems for fraudulent or illegal activities; (b) AR’s provision of the Services to You is prohibited by applicable law; (c) any vendor of AR has suspended or terminated AR’s access to or use of any third-party services or products required to enable You to access the Services (any such suspension a “Service Suspension”). AR shall use commercially reasonable efforts to provide written notice of any Service Suspension to You and to provide updates regarding resumption of access to the Services following any Service Suspension. AR shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. AR will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that You may incur as a result of a Service Suspension.
As part of the Services, AR shall use good faith efforts to implement security measures (such as password protection and encryption) and maintain such other safeguards (including virus protection safeguards) that are reasonably intended to prevent the destruction, loss, interception, or alteration of Hosted Data by unauthorized persons and that are consistent with current commercial practices in the industry. The parties expressly recognize that, although AR shall take such reasonable steps, or cause such reasonable steps to be taken, to prevent security breaches, it is impossible to maintain flawless security. Except with respect to AR’s express obligations in this paragraph, You are solely responsible for any damage caused by unauthorized destruction, loss, interception, or alteration of the Hosted Data by unauthorized persons. AutoRaptor LLC shall not use the Hosted Data except to (a) provide the Services, (b) aggregate information relating to transactions for statistical analysis and business measures of the performance of the Services, (c) monitor Your use of the Services for security purposes, and (d) enforce the terms of this Agreement. AR shall not disclose the Hosted Data to a third party, except to any AR subcontractors who need to know such information in order to provide the Services, provided that they are bound by similar confidentiality obligations.
Licensed Sites and Additional Services.
The Licensed Site Addendum lists the number and locations of the licensed sites (“Licensed Sites”) for which You are subscribing for Services. From time to time during the Term, You may add additional dealership locations as Licensed Sites by executing an amended Licensed Site Addendum with AutoRaptor LLC. For purposes of clarity, any facility (or contiguous facilities) located at the same address shall be deemed one “location” or Licensed Site, however, a dealership with multiple facilities located at different addresses would need to purchase a Licensed Site subscription for each such location in order for all such locations to be Licensed Sites and have access to Services hereunder.
You may elect to transfer a Licensed Site to a new location by providing at least sixty (60) days prior written notice to AR stating the address of the new facility, identifying the address of the facility that will cease to be a Licensed Site, and stating the effective date of such transfer. Upon the effective date of transfer, the new facility will be a Licensed Site and You shall cease to use or access the Services from the former Licensed Site.
You may terminate Your subscription hereunder for some or all of its Licensed Sites on Your Contract Renewal Date by providing written notice to AR at least (60) days prior to such Contract Renewal Date identifying the addresses of the Licensed Sites being terminated.
From time to time during the Term, AutoRaptor LLC may offer additional services, including but not limited to additional features to AutoRaptor, (“Additional Services”) which are available for an additional monthly fee (the “Additional Services Fee”). You may subscribe for such Additional Services offered to it by AR either by (a) entering into an amended Licensed Site Addendum with AR or (b) submitting a purchase order, which is accepted by AR, for such Additional Services.
You agree to pay monthly to AutoRaptor LLC for each Licensed Site the then current “Site Subscription Fee” (which initial price is listed on the Licensed Site Addendum) and, if any, the then current Additional Services Fees. In addition, You agree to pay the one-time “Set Up Fee” listed on the Licensed Site Addendum for each Licensed Site. Effective upon the next Renewal Date, AR may increase the Site Subscription Fee, the Set Up Fee (for any Licensed Sites subsequently added), and the Additional Services Fees (if You have subscribed for any Additional Services) by delivering You written notice at least sixty (60) days prior to the Renewal Date on which such increase shall become effective.
AR shall invoice You for amounts owed hereunder when due and You shall pay all valid invoices within ten (10) days from AR’s invoice date. AR may discontinue performance under this Agreement if You fail to pay any sum due and fail to cure such failure within ten (10) days of receiving written notice from AR. AR reserves the right to charge and collect a service fee on any unpaid, past-due license fee amounts equal to the lesser of one and one-half percent (1½ %) per month or the maximum amount permitted by law. You will reimburse AR for all reasonable collection expenses, including reasonable attorneys’ fees, collection agency fees, and court costs, for delinquent amounts. You authorize AutoRaptor LLC to charge all amounts owed to AR hereunder to such credit card as such amounts become due.
All payments due hereunder shall be net of any applicable sales, use, and other taxes, and You agree to pay (or reimburse AR, as the case may be) any taxes due in connection with this Agreement, excluding taxes on AR’s income, for which AR is solely responsible; provided, however, that AR shall not invoice You for any taxes for which You have provided AR with an appropriate exemption certificate for the applicable delivery jurisdiction.
This Agreement shall commence on the effective date listed, and continue for the period specified, on the Licensed Site Addendum as the “Initial Term.” Thereafter, this Agreement shall renew automatically for successive renewal terms (“Renewal Term”) of the same period as the Initial Term or explicitly defined Renewal Term, whichever is greater, unless either party provides written notice to the other party of non-renewal at least sixty (60) days prior to such a renewal date (each a “Renewal Date”), or unless earlier terminated as provided below (the Initial Term and each Renewal Term, collectively, the “Term”). Termination requests from the signing party (customer) will not be honored if the account has an outstanding balance. As part of the termination process, the signing party (customer) agrees to participate in an exit interview with AR. Termination requests must be made by the account owner. In the event of early termination, the signing party (customer) will be financially responsible for paying for the remainder of the term subscription balance to AR.
Either party has the right to terminate this Agreement if the other party is in default of any material obligation under this Agreement, which default is incapable of cure or which, being capable of cure, has not been cured within ninety (90) calendar days after receipt of written notice of such default (or such additional cure period as the non-defaulting party may authorize in writing). Notwithstanding the foregoing, AutoRaptor LLC may terminate this Agreement (and all licenses hereunder) immediately (without providing You the opportunity to cure) due to any of the following: (a) You do not make any one or more monthly payments owed to AR under Section 3 within ten (10) business days after the due date or (b) You breach Your obligations under Sections 1 of this Agreement.In the event this Agreement is terminated or expires for any reason, then all licenses granted to You hereunder to the Services and AutoRaptor shall terminate and You shall cease to use and access the Services and AR shall promptly transfer an electronic copy of the Hosted Data (in the format in which it is stored by AutoRaptor or in an Excel spreadsheet) to You. Hosted Data will not be transferred if you have an outstanding balance.
In addition, the following terms and conditions shall survive any termination or expiration of this Agreement: Sections 3, 5, 6, 7 and 8.
AutoRaptor LLC Intellectual Property.
AR and its licensors are the sole owners of AutoRaptor and of all copyright, trade secrets, patent, trademark and other intellectual property rights in and to AutoRaptor and the Services, and this Agreement does not provide You with title to or ownership of AutoRaptor or the Services,, but only a right of limited remote use under the terms and conditions of this Agreement.
Representations and Warranties; Disclaimers of Warranty.
AR warrants that AutoRaptor shall work in material accordance with the then-current applicable user documentation provided to You by AR. As AR’s sole obligation, and Your sole remedy, for any breach of this limited warranty of performance, AR shall make reasonable efforts to correct any such nonconformance that can be replicated by AR or demonstrated to AR by You.
Except as expressly stated in this Section 6, AR disclaims any and all representations and warranties, express or implied, by operation of law or otherwise, regarding or relating to AutoRaptor, the Services, the Additional Services, or any other services, products or services delivered under this Agreement. AR specifically disclaims all implied warranties, including without limitation any warranties of merchantability or fitness for a particular purpose (irrespective of any previous course of dealing between the parties or custom or usage of trade), non-infringement, or that the Services will be uninterrupted or error free.
Your Obligations Regarding Use of Personal Data on the Services
You understand and agree that You are solely responsible for ensuring that Your use of the Service complies with all applicable laws, including (but not limited to) any laws relating to the use, privacy, or security of personal information and the sending of promotional or informational electronic communications. To that end, You represent and warrant that You have all required consents, authorizations, and rights to send electronic communications—including, but not limited to, email campaigns and promotional and informational SMS text messages—to any recipients through the Services. You further represent and warrant that You have the right to provide transfer personal information to AutoRaptor as may be necessary for our use of the Services and that any such transfers shall comply with applicable laws. You agree to implement commercially reasonable measures to ensure Your secure access and use of the Services. You shall ensure that all passwords and log-in information used to access the Services is treated as confidential and only disclosed to those employees who have a legitimate need to access the Services. You shall be solely responsible for any unauthorized access to, or breach of security of, the Services that are caused by You, in whole or in part.
You shall defend, indemnify, and hold harmless AutoRaptor LLC from and against any and all damages, liabilities, claims, costs, charges, lawsuits, proceedings, judgments and expenses, including interest, penalties and reasonable attorneys’ fees, (collectively, “Losses”) incurred by any AutoRaptor LLC as a result of (i) any breach by You of any of Your representations, warranties, or obligations contained in this Subscription Agreement, (ii) Your failure to comply with, or violation of, applicable laws in connection with Your use of the Services, (iii) Your failure to obtain appropriate authorization or consent from any recipient of an email, SMS text message, or other electronic communication sent using the Service; or (iv) any unauthorized access to, breach in security of, or other compromise of the Services caused in whole or in part by You.
AR shall indemnify, defend, and hold harmless You from and against any and all Losses incurred by You resulting from any third-party claim, suit, action, or proceeding that AutoRaptor, the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights (“IP Claim”), provided that You promptly notify AR in writing of such IP Claim, cooperate with AR, and allow AR sole authority to control the defense and settlement of such IP Claim. If an IP Claim is made or appears possible, You agree to permit AR, at AR’s sole discretion, to (a) modify or replace AutoRaptor or the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for You to continue use AutoRaptor or the Services materially as contemplated in this Agreement. If AR determines that neither alternative is reasonably available, AR may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to You and provide a pro-rata refund of any prepaid fees with respect to any Term remaining after the effective date of termination. This paragraph will not apply to the extent that the alleged infringement arises from: (x) use of AutoRaptor or the Services in combination with data, software, hardware, equipment, or technology not provided by AR or authorized by AR in writing; (y) modifications to AutoRaptor or the Services not made by Provider; or (z) Hosted Data.
Limitation of Liability.
To the maximum extent permitted by applicable law, AutoRaptor LLC and its suppliers and licensors will not be liable for any loss of revenue, profits or goodwill or for any special, incidental, indirect, consequential or punitive damages or losses resulting from AR’s or AutoRaptor’s performance or failure to perform pursuant to the terms of this Agreement, from the furnishing, performance or loss of use of such products or services, including, without limitation, from any interruption of business, whether resulting from breach of contract or other legal liability whatsoever, even if AR has been advised of the possibility of such damages.
Except with respect to Your indemnification obligations and Your obligations to pay any outstanding amounts owed hereunder, the maximum aggregate liability of either party arising out or relating to this Agreement shall not exceed the total fees paid by You to AR hereunder during the twelve months previous to the events giving rise to such claim.
Neither party shall assign, delegate, sublicense, or transfer any of its obligations, responsibilities, rights or interests under this Agreement without the written consent of the other party, except to (a) a successor in a merger or a sale of all or substantially all of such party’s capital stock, assets or business or (b) solely with respect to AutoRaptor LLC, a majority owned subsidiary of AR or an affiliate under the same common control as AR. Any assignment, delegation, sublicensing, or transfer by either party in violation of this subsection shall be void and without force or effect.
In the event that either party is unable to perform any of its obligations under this Agreement because of causes beyond its reasonable control or because of any Act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster (each, a “Force Majeure Event”) the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. Nothing provided herein shall excuse the delay of any payment that is validly due by You under this Agreement.
Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by a party pursuant to the terms of this Agreement shall be in writing and shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) on the third business day after deposit in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid), and (d) upon confirmation of receipt by facsimile transmission; in each case addressed to the party at such party’s address as set forth on the Licensed Site Addendum (to the attention of, in the case of AutoRaptor LLC, the Chief Executive Officer or, in the case of You, the title of its signatory as set forth on the signature page hereto) or as subsequently modified by the receiving party pursuant to written notice.
All questions concerning the validity, operation, interpretation, and construction of the Agreement will be governed by and determined in accordance with the substantive laws of the State of Rhode Island without regard to its conflicts of law provisions. Other than as necessary to enforce any final judgment, award or determination, any action brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts within the State of Rhode Island without regard to its conflict of laws provisions. In any such action, both parties submit to the personal jurisdiction of the courts of Rhode Island and waive any objections to venue of such courts.
Neither party shall by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of this Agreement.
Except as expressly stated otherwise herein, each party’s rights and remedies provided for in this Agreement shall be cumulative, exercisable concurrently or separately, and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
The parties acknowledge that this Agreement, including Licensed Site Addendums, is the complete and exclusive statement of agreement respecting the subject matter hereto and supersedes and renders null and void any and all agreements and proposals (oral or written), understandings, representations, conditions, and other communications between the parties relating hereto. This Agreement may be amended only by a subsequent writing that specifically refers to this Agreement and is signed by You and AutoRaptor LLC.