The following defined terms appear in this Agreement and shall apply as defined, save where the context otherwise requires:
- “Accept” or “Accepting“ or “Acceptance“: means using or accessing any Product, or signing any order form or clicking the “submit”, “order”, “agree” or other similar acknowledgement to purchase or subscribe to or to access any Product.
- “You“, “you” or “Your”: means a Customer that applies to, or registers to use, or uses the Products including any Appraisal Grid Web Sites, applications, products, technology, software or services.
- Customer: means an individual, partnership, corporation, limited liability company, unlimited liability company, joint stock company, trust, unincorporated association, joint venture or other entity or Governmental Entity, or other legal entity that registers to access or use the Products, and pronouns, whether masculine or feminine or ambiguous, including but not limited to “he”, “she”, “their” or “it”, have a similarly extended meaning.
- Appraisal Grid Web Sites: means the web site pages of Appraisal Grid or partner companies
- Fees: means, collectively, all charges, amounts and fees due and payable from Customer to Appraisal Grid for use of the Products, including subscription fees, usage fees, setup fees, and miscellaneous fees as may be applicable.
- Product(s): means the Appraisal Grid products, described in this Agreement, which incorporates multiple components, including but not limited to any products, technology, software, websites, mobile applications, tools or other service used, provided or offered by Appraisal Grid.
- “Appraisal Grid“, “we“, or “us“: means Appraisal Grid Ltd.
- Data: means any information, in an electronic format or otherwise, including but not limited to, documents, graphics, images, video, audio, text, digital information, meta data or any other system or Customer-supplied data or information of any kind as well as such data that may be appended to, modified, supplanted or updated in any way by the Products or by Appraisal Grid.
- Data Capture: means the process by which a Customer uses the Products to collect, capture and submit Data to Appraisal Grid.
- In Writing: means any notice or notice request instruction required or permitted to be given under this Agreement described as “In Writing” or “in writing” shall be effective if it is in writing and sent to the recipient prepaid by internationally recognized private courier (e.g., DHL, FedEx, etc.) AND by email, to the appropriate party hereto at the address for each party as provided prior to the use of any Product by the customer. Any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery. Either party may change its address for receipt of notice by notice In Writing to the other party in accordance with this section.
- Third Party: means any person or entity that is neither Appraisal Grid, the Customer nor an affiliate of Appraisal Grid or the Customer
2. Products and Fees
Appraisal Grid provides a range of Products made available for the use of and purchase by Customers.
The Customer is responsible for paying our Fees when they are due. If fees are not paid when due, we may limit, disable or otherwise restrict your ability to use the Products. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. All Fees are non-refundable unless we specifically indicated otherwise to the Customer In Writing.
Unless otherwise indicated by us by notice In Writing to you, any Fees for access or usage of any Product that are charged as subscription fees shall be levied on a monthly subscription basis and automatically renew, on a month-to-month basis, at the end of each calendar month until such Subscription is terminated or cancelled by us or the Customer as may be provided for in this Agreement. Any proper termination or cancellation by the Customer of its subscription-based Products will be processed by Appraisal Grid no later than the end of the calendar month following the month in which notice was received. There will be no prorations of any Fees.
3. Requirements for Registration
In order to use the Products, you must provide all required information requested by us when registering to use the Products. We may require you to provide additional information as a condition of continued use of the Products, or to assist in determining whether to permit you to continue to use the Products.
By agreeing to this Agreement, you; (i) represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States, Canada or any other applicable jurisdiction; and (ii) provide true, accurate, current and complete information about yourself as prompted by the Products’ registration forms, websites, pages or any other process processes (such information being the “Registration Data”); and (iii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Appraisal Grid has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Appraisal Grid has the right to suspend or terminate your account and refuse to you any and all current or future use of the Products (or any portion thereof).
If you are a business entity, you also represent that you are; (i) duly authorized to do business in the country or countries where you operate; and (ii) your employees, officers, representatives, and other agents accessing the Products are duly authorized to access the Products and to legally bind you to this Agreement and to be liable for payment of all Fees applicable for usage of any of the Products accessed by or under your Appraisal Grid account and any associated username(s) and password(s).
4. Authorized User(s)
Appraisal Grid will issue to individual users (Authorized Users), as designated by the Customer, a username, password and any other log-in credentials necessary to access the Products (except in the case of Products that allow a Dealer “admin” or other user to directly issue such log-in credentials to the Customer’s Authorized Users). Authorized Users may be required to agree to and accept this Agreement or other terms of service. Any username, password or other log-in credentials issued by Appraisal Grid or the Customer to any Authorized User for purposes of accessing any Product is confidential and may not be shared with any Third Party, and will be used only by the Authorized User to whom it is issued. Any unauthorized use or disclosure of any Customer or Authorized User log-in credentials or any other account information shall be immediately reported to Appraisal Grid In Writing (email shall be sufficient). The Customer will be responsible and liable for all actions taken through or under any username, password or other log-in credentials issued to, or established by, the Customer or that may be taken by the Customer’s personnel, including Authorized Users, in connection with access to and/or use of any Product(s) or Data, including any unauthorized use of any Product(s) and/or Data, or any other violation of this Agreement, any other terms of service or any third party terms and conditions.
5. Data and Data Ownership
Certain data and information may be generated, received, inferred from or collected by Appraisal Grind in connection with your use of any Product.
You are solely responsible for the accuracy and content of any Data provided to Appraisal Grid. The Customer nor any user authorized by the Customer may upload, store or maintain any malicious code, virus or other harmful content on or within any Product or Appraisal Grid system or otherwise transmit any third party information or Data not authorized for distribution by the Customer to Appraisal Grid. The Customer has and shall retain sole responsibility for ensuring that no Data provided to Appraisal Grid constitutes or contains any such Data.
You the Customer grant Appraisal Grid and its affiliates a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exercise the copyright, trademark, publicity, analytical and database right to any content, information, images, media and data loaded to or provided by you to Appraisal Grid, in any media known now or in the future, including but not limited to; (i) product serial numbers, identification numbers and VINs; (ii) condition data; (iii) declarations; (iv) geographical and regional data; (v) previous history; (vi) transaction and sales data; (vii) pricing data including sale, cost, profit and loss data; (vii) valuations and opinions; (viii) item-specific information such as model year, make, trim, features and options, odometer readings and hour meter readings; (ix) Product usage data; and (ix) other historical data or other information or data. Appraisal Grid will have the right to use and share such data in non-identifiable, aggregate or individual forms for its own internal analytics and other business purposes for any reason at its sole discretion and subject to any limitations as specified in this Section 5.
You, Appraisal Grid and any Customer acknowledge and agree that, subject to the terms and limitations set forth above in this Section 5: (i) all right, title, interest in and to Data shall reside in the Customer or 3rd Party originally owning the right to said data when such data is supplied to Appraisal Grid or uploaded to the System; (ii) all right, title, interest in and to Data further enhanced after supplied to Appraisal Grid or uploaded to the System will specifically reside with the owner of the original data prior to the enhancement or to the party providing the enhancement if agreed to by the owner of the original data; (iii) Appraisal Grid may use the non-identifiable, specific or aggregated Data for their own purposes, subject to any restriction provided by the owner of the data;
6. Limitations on the Use of the Products
We may establish general practices and limits concerning use of the Products. We reserve the right to change, suspend or discontinue any Product or portion thereof at any time, including hours of operation or availability of the Products, any Product features, functions or capabilities, or any integrations available within or to the Products, without notice and without liability.
We do not warrant that the functions contained in the Products will be uninterrupted or error-free and we shall not be responsible for any service interruptions including, but not limited to, power outages, system failures or other interruptions that may affect the collection, management or distribution of Data or the Products.
We may limit or suspend your use of the Products at any time, in our sole and absolute discretion. If we suspend your use of the Products, we will attempt to notify you by email. Suspension of your use of the Products will not affect your rights and obligations pursuant to this Agreement arising before or after such suspension.
Neither the Customer nor any Authorized User shall: (i) use or access any Product or use or publish any Data in a manner not expressly authorized by this Agreement; (ii) except as otherwise permitted by this Agreement, offer, sell, rent, lease, sublicense, transfer, distribute or provide access to or otherwise make available to any Third Party any Product or Data or any documentation or other information relating thereto; (iii) reproduce, modify, translate, reverse engineer, decompile or disassemble or otherwise attempt to discover the source code of any Product, Product component, and/or Data (including source code provided by any third party Licensor), or develop or create any derivative works of or relating to any Product or any underlying technology or intellectual property comprising any Product; (iv) scrape or data-mine any Product, Appraisal Grid system or any other website owned or operated by Appraisal Grid or its affiliates (including through the use of any robot, spider or other automated device); (v) publish, transfer, license, distribute or export any Data from any Product, other than by using the functions for doing so provided as part of the applicable Product; provided that in no event may the Customer use such exported content other than in the ordinary course of its business (which shall not include offering, licensing, selling, publishing or otherwise distributing such Data to third parties independently of Customer’s normal business; (vi) violate any Law or any intellectual property rights or other rights of any third party in connection with any use of or access to any Product, or in connection with any use, display or publication of any Data; (vii) challenge, cooperate with any third party in challenging, or assist any third party in challenging any right or interest that Appraisal Grid or its affiliates may have in or to any Product(s), or any underlying technology, processes or intellectual property comprising such Product(s); (viii) access or use any Product(s) or Data for any competitive purpose, or for purposes of developing or promoting any competing product or service; (ix) take any action, the intent or likely effect of which would be to cause harm to the business or reputation of Provider or its Affiliates, (x) use any Product(s) or the services provided by a Third Party Licensor in a manner not authorized under this Agreement; or (xi) disclose any passwords or other security information related to the Product(s) or any integration between the Product(s) and any Third Party Licensor technology.
7. General Practices Regarding Use and Storage
You acknowledge that Appraisal Grid may establish general practices and limits concerning use of the Products, including without limitation the maximum number of days that messages, detail pages, web-reports, Data Captures, Data or other uploaded Content will be retained by the Products, the maximum number of messages, detail pages, web-reports, Data, Data Captures or other data that may be sent from, received by or created by an account on the Products, the maximum size of any message, detail page, web-report, Data, Data Capture or other data that may be sent from, received by or created by an account on the Products, the maximum storage space that will allotted on Appraisal Grid servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Products in a given period of time. You agree that Appraisal Grid has no responsibility or liability for the deletion or failure to store any messages, detail pages, web-reports, Data, Data Captures or other data, other communications or other Content maintained or transmitted by the Products.
8. Third Party Licensors
You acknowledges that Products may integrate or incorporate certain Third Party materials, systerms, products, tools or technology (Third Party Products). Third Party Products are offered and made available by an applicable Third Party provider, and not by Appraisal Grid, and any integration, incorporation or use of any Third Party Products by the Customer or any Authorized User is subject to the terms and conditions of this Agreement and any applicable Third Party Terms and Conditions. Dealer acknowledges that Products provided under this Agreement may include access to products that contain program code owned by a Third Party. Such a Third Party may enforce this Agreement as a third party beneficiary solely with respect to use of any such Third Party’s technology. Neither the Customer nor Appraisal Grid may modify or terminate any of the Customer’s obligations in a way that would impact the rights of any such Third Party adversely. Appraisal Grid shall in no event be responsible or liable to the Customer or any other party for any Third Party Products or any use thereof by the Customer or any Authorized User or other of the Customer’s personnel.
9.Username and Password Information
You are responsible for: (i) maintaining the confidentiality of your username and password, (ii) any and all Purchase Amounts, transactions by persons that you give access to or that otherwise use such username or password, and (iii) any and all consequences of use or misuse of your username and password. You agree to notify us immediately of any unauthorized use of your username or password or any other breach of security regarding the Products of which you have knowledge.
If the Customer is a business entity, Customer agrees that all officers, employees, agents, representatives and others having access to the, account(s), username(s) and/or password(s) shall be vested by the Customer with the authority to use the Products and legally bind the Customer. The Customer shall be responsible for all actions by current and former officers, employees, agents, representatives and others, regardless of whether authorized by the Customer, that access the Products using the Customer√ïs accounts, username(s) and password(s) created by or authorized by the Customer for use of and access to Appraisal Grid. Usernames and passwords authorized by the Customer means any usernames and passwords configured and setup within the Customer√ïs Appraisal Grid account for the purposes of accessing said account.
You authorize us to provide notices and communicate with you regarding the Products by means of electronic communications, including (a) sending email to the email address you provided during registration, or (b) posting notices or communications within the Products or on an Appraisal Grid Web Site, mobile application or other system. You agree that we may communicate with you by means of any method defined within this Section 12(a) and (b): this Agreement (and revisions or amendments), notices or disclosures regarding the Products, payment authorizations, and any other matter relating to your use of the Products,
Electronic communications will be deemed received by you when sent by us to the email address you provided at the time of registration or as revised by you thereafter in accordance with this Agreement, or when we post a notice on an Appraisal Grid Web Site, mobile application or other system and that such communication and notices shall be deemed to have been received by you In Writing.
You agree to release, Appraisal Grid, and other affiliates, and their agents, contractors, officers and employees, from all claims, demands and damages (actual and consequential) arising out of or in any way connected with a dispute. You agree that you will not involve Appraisal Grid, and other affiliates, and their agents, contractors, officers and employees in any litigation or other dispute arising out of or related to any Purchase Amounts, transaction, agreement, or arrangement with any other Customer, advertiser or other third party in connection with the Products. If you attempt to do so, (i) you shall pay all costs and attorneys√ï fees of Appraisal Grid, and other affiliates and shall provide indemnification as set forth below, and (ii) the jurisdiction for any such litigation or dispute shall be limited as set forth below.
13. Termination of Service
We may, in our sole and absolute discretion without liability to you or any third party, terminate your use of the Products for any reason, including without limitation inactivity or violation of this Agreement or other policies we may establish from time to time.
Upon termination, we have the right to prohibit your access to the Products, including without limitation by deactivating your username and password, and to refuse future access to the Products by you (or your relatives or known acquaintances or if a business entity, its employees, agents, parent, affiliates or subsidiaries or its or their successors).
The Customer may terminate this Agreement and suspend charges of any Fees by providing Appraisal Grid with 30 days prior notice In Writing.
You agree to indemnify, defend and hold harmless Appraisal Grid, and Appraisal Grid subsidiaries and other affiliates, and its and their directors, officers, owners, agents, co-branders or other partners, employees, information providers, licensors, licensees, consultants, contractors and other applicable third parties (collectively “Indemnified Parties”) from and against any and all claims, demands, causes of action, debt or liability, including reasonable attorneys fees, including without limitation attorneys fees and costs incurred by the Indemnified Parties arising out of, related to, or which may arise from: (i) your use of the Products; (ii) any breach or non-compliance by you of any term of this Agreement or any of Appraisal Grid√ïs policies; (iii) any dispute or litigation caused by your actions or omissions; or (iv) your negligence or violation or alleged violation of any law or rights of a third party.
NEITHER APPRAISAL GRID NOR ANY OF ITS AFFILIATES OR ITS LICENSORS, INCLUDING ANY THIRD PARTY LICENSORS, MAKES ANY REPRESENTATION OR WARRANTY TO THE CUSTOMER OR ANY OTHER PERSON WITH RESPECT TO ANY PRODUCT OR DATA (OR ANY THIRD PARTY PRODUCTS), EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF TITLE, SUITABILITY, LEGALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY TYPE OR NATURE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPRAISAL GRID MAKES NO REPRESENTATION OR WARRANTY THAT: (I) ANY PRODUCT WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION OR IN ACCORDANCE WITH ANY SPECIFICATIONS OR DOCUMENTATION, OR (II) THE OFFERINGS, PRODUCTS OR DATA ARE SUITABLE FOR ANY SPECIFIC PURPOSE, INCLUDING ANY ADVICE REGARDING THE VALUE, COSTS, PROFIT TARGETS, QUALITY OR SUITABILITY OF ANY PARTICULAR TRANSACTION, SALES STRATEGY OR OTHER BUSINESS PRACTICE.
16. Limitations of Liability
IN NO EVENT SHALL APPRAISAL GRID, ITS AFFILIATES, ITS LICENSORS OR ANY THIRD PARTY LICENSOR BE RESPONSIBLE OR LIABLE TO THE CUSTOMER, AUTHORIZED USER OR ANY PERSON OR THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, INCIDENTAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, LOSS OF USE, DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED AROUSING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE USE OF ANY PRODUCT OR ANY GOODS, SERVICES, DATA OR INFORMATION PURCHASED, RECEIVED, SOLD, OR PAID FOR BY WAY OF THE PRODUCTS, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF APPRAISAL GRID OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. IN NO EVENT SHALL APPRAISAL GRID’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE NET FEES APPRAISAL GRID HAS ACTUALLY RECEIVED AND RETAINED FROM THE CUSTOMER’S VALID PURCHASES, FEES, TRANSACTIONS OR OTHER PAID PRODUCTS PROVIDED DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
17. Force Majeure
Both the Customer, You and Appraisal Grid acknowledge that the other party or parties have entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. In addition to and without limiting any of the foregoing, Neither Appraisal Grid or the Customer will be liable for any failure or delay in performing any obligation under this Agreement, except the requirement to pay Fees in accordance with the terms of this Agreement, to the extent such failure or delay is attributable to any act of God or other condition or event outside of its reasonable control.
18. Governing Law and Miscellaneous
This Agreement shall be governed by the laws of Alberta, Canada. Each party agrees to submit to personal and exclusive jurisdiction of the courts located in Calgary, Alberta, Canada.
If any provision of this Agreement shall be invalid or prohibited by law, such invalidity or prohibition shall be construed as if such invalid or prohibited provision had not been included herein and such invalidity or prohibition shall not affect the remainder of such provision or any other provision of this Agreement. This Agreement represents the entire agreement of the parties with respect to the Customer’s use of the Products and the other subject matter hereof, and supersedes all prior agreements and understandings between the parties with respect to such matters, whether oral or written. This Agreement is not intended to confer upon any Authorized User or other Customer personnel or any other person or entity (other than the Customer and Appraisal Grid and its Affiliates) any rights or remedies hereunder.
19. Modification of Agreement
We have the right, in our sole and absolute discretion, to change, modify, or amend any portion of this Agreement at any time by posting notification within the Products or on a Appraisal Grid Web Site, mobile application or otherwise communicating the notification to you. The changes will become effective, and shall be deemed accepted by you, after the initial posting and shall apply on a going-forward basis with respect to use of the system, Data supplied or submitted, purchases, transactions initiated after the posting date and any corresponding Fees. In the event that you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Products.
You may not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without Appraisal Grid’s prior written approval and any such attempted assignment shall be void. We reserve the right to freely assign this Agreement and the rights and obligations hereunder, to any third party without notice or consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
Upon termination of your use of the Products or termination of this Agreement for any reason, in addition to this section, the following sections shall survive termination: 5,6, 10, through 18, 21 and 22.
22. Other Provisions
The failure of Appraisal Grid to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. This Agreement, including Appraisal Grid’s policies governing the Products referenced herein, constitutes the entire agreement between Appraisal Grid and Customer with respect to Customer’s use of the Products. This Agreement is not intended and shall not be construed to create any rights or remedies in any parties other than Customer and Appraisal Grid and other affiliates which each shall be a third party beneficiary of this Agreement for Customers, and no other person shall assert any rights as a third party beneficiary hereunder.