Introduction

Welcome to Dealer Alchemist. These Terms & Conditions are designed to help you understand the rules, responsibilities, and expectations that apply when you use our website, software, and services. By using our website and services, you consent to and agree to the practices described in these Terms.

- Dealer Alchemist LLC

Scope

These Terms and Conditions (the “Terms”) are incorporated into that certain Master Software License and Service Agreement (the “Agreement”) entered into between you as the dealership and/or on behalf of the dealership that you own (“you” or “your”) and Dealer Alchemist LLC, a Delaware limited liability company (the “Company”), and govern your use of the Company’s software as a service (the “Software”) and any other products or services the Company provides to you, including website services (together with the Software, the “Services”). Any special requirements, modifications or amendments mutually agreed to and not otherwise addressed in the Agreement or these Terms may be set forth in a separate addendum (the “Addendum”), which shall be incorporated into the Agreement and subject to these Terms. These Terms prevail over any general terms and conditions, regardless of any terms and conditions that might have been submitted by you with a request for a quote.

The Company is the successor to the business interests of both Kirin Consulting, LLC and Dealer Venom LLC.

License

The Company grants you a non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (as defined under the Agreement) to use the Services you order, subject to your complying with these Terms and all applicable federal and state laws and regulations (“Applicable Law”). Use of any of the Company’s Services constitutes acceptance of these Terms. You appoint the Company as your non-exclusive advertising agent during the Term and agree not to allow unauthorized third parties to access or use any of the Company’s Services.

Service Ordering and Pricing

The Company offers multiple service packages which include access to its Software for a fixed monthly recurring fee. The Company offers additional Services, which you may order, and adjust the spend on, on a monthly basis. Pricing for the Company’s Software packages and other Services is set forth in the Agreement. Changes you request to specific Services, including cancellation, may require advance notice. No custom work is performed unless set forth in an Addendum or a specific statement of work. The Company may update its Services as it deems necessary or desirable to enhance the quality or performance of the Services or to comply with Applicable Law. Although some of the Services may be provided by its affiliates or subcontractors, the Company remains responsible for any Services performed by them to the same extent as if it performed such Services itself.

Prepayment for Certain Services

You are responsible for prepaying the Company’s good faith estimate of all charges for Services for the following month, including charges anticipated to be payable to any third parties (e.g., Google, Bing, Facebook), relating to advertising (the “Advertising Services”) before the Company is obligated to perform such Advertising Services. The amounts of such prepayment will be reflected on an invoice sent to you. At the end of each month, the Company will calculate the total charges for Advertising Services actually incurred, and the Company will reconcile such amount against your prepayment by either debiting or crediting any underpayment or overpayment, respectively, against the following month’s invoice for estimated Advertising Services. In the event the Agreement is terminated, any remaining debits related to the estimation of Advertising Services will be due and payable by you and any remaining credits related to the estimation of Advertising Services will be refunded to you by the Company.

Billing

Invoices are sent electronically, and you agree to pay within 15 days of receipt, without setoff, deduction or delay. Any invoice amount paid by credit card will incur a 2.8% surcharge. Late payments will accrue interest at the lesser of 5% per month or the maximum legally permitted rate. You are responsible for paying all federal, state, local or other applicable taxes (other than on the Company’s net income) that the Company is or in the future may be required to collect or pay with respect to the Services provided to you. You shall be responsible for paying third party advertisers directly, unless the invoice indicates that you shall reimburse the Company for making such payments for you, which will be invoiced accordingly. Your payment obligations are not contingent on your receipt of any manufacturer, third party incentives, co-op or other funds. During the Term, the Company may increase fees upon 30 days’ prior notice if its costs (e.g., postal rates; third party provider charges) increase. Unless otherwise required by an OEM certified program, the Company may increase fees annually by up to 3%, effective on the 1st of each calendar year. The Company will charge a one-time Tech Integration fee of $995, which will apply to the Term and all subsequent Terms. The Company may suspend any or all aspects of the Services, upon notice, if you fail to pay all amounts owed when due that are not disputed in good faith with a description of the basis for such dispute; any billing disputes not submitted to the Company within 30 days of receipt of invoice will be waived. You are responsible for any collection costs, including reasonable attorneys’ fees.

Intellectual Property

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to you under this Agreement or prepared by or on behalf of the Company in the course of performing the Services (collectively, the “Deliverables”) shall be owned by the Company, except for any of your Confidential Information or Customer IP (each as defined herein). The Company hereby grants you a license to use all of its Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable you to make reasonable use of the Software and the Services, solely during the Term. You may not decompile, disassemble, reverse engineer or otherwise attempt to reconstruct or create derivative products from the Company’s Services; nor may you remove any trademark or copyright symbols. You retain all Intellectual Property Rights you hold in content you submit to the Company for use in the Services, including the right to your domain name URL if the Company hosts your primary website, even if the Company registers it on your behalf (collectively, the “Customer IP”). You will grant the Company a non-exclusive, revocable, non-transferable, non-sublicensable, royalty-free license during the Term to use such Customer IP in connection with providing the Services. Third parties who provide images for use in the Services hold the copyrights thereto. The Company will have the exclusive rights in making any derivative works from any of its work, practices, coding, or programming arising out of the Services. You shall retain all of your Intellectual Property Rights in any text, images or other components you own and deliver to the Company for use on any website that is developed under this Agreement. Any domain name registered on your behalf will be registered in your name for both the billing and administrative contacts and you shall be responsible for renewing your domain name(s). Both parties acknowledge and agree that, except as specifically set forth in this Agreement, neither party shall acquire under this Agreement any rights of use or ownership with respect to any Intellectual Property Rights of the other party or its licensors, and all such Intellectual Property Rights shall remain the property of its respective owner.

Confidentiality

“Confidential Information” means all non-public, confidential or proprietary information, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing disclosed by one party (the “Discloser”) to the other (the “Recipient”) and that is identified as confidential, derives from or reveals any Confidential Information, or that a reasonable person would consider confidential or proprietary based on its nature and the circumstances of disclosure, including information disclosed prior to the effective date of the Agreement. Confidential Information does not include information that was already in Recipient’s possession when first disclosed, was in the public domain when disclosed to Recipient or enters the public domain through no fault of Recipient, is made available by Discloser to a third party on an unrestricted basis, was lawfully obtained by Recipient from a third party not under confidentiality obligations, was independently developed by Recipient without access to Confidential Information, or is required to be disclosed under Applicable Law (provided, to the extent legally permissible, Recipient notifies Discloser prior to such disclosure to enable Discloser to seek confidential treatment). With respect to each other’s Confidential Information, both parties shall maintain confidentiality in accordance with reasonable standards, use it solely in connection with the Agreement, limit access to those who require it to perform obligations, and require that anyone with access be subject to confidentiality requirements no less restrictive than those contained here.

Data Safeguards

Nonpublic Personal Information (“NPI”) has the meaning ascribed to it under the Gramm-Leach-Bliley Act (“GLBA”). Each party represents and warrants that, with respect to any NPI it may have access to under the Agreement, it will comply with all requirements under Applicable Law for maintaining its security, use it only as necessary to perform obligations under the Agreement, obtain in advance all authorizations necessary to provide it to the other party and permit such party to collect and use it in accordance with the Agreement, and not provide it to any third party unless authorized and only if such party is bound by compliance requirements no less restrictive than those contained here. You further represent and warrant that you have obtained, and will maintain, all necessary customer consents permitting the Company to communicate to your customers on your behalf and will promptly inform the Company of all customer “do not contact” and “data deletion” requests. In the event a party fails to comply with obligations under Applicable Law for maintaining the security of NPI, resulting in unauthorized access to or acquisition of NPI that would trigger customer notification under Applicable Law (a “Security Breach”), the party with the Security Breach will promptly notify the other party and any third parties required by Applicable Law and cooperate in responding to such Security Breach. You are responsible for establishing the terms governing the use of any NPI generated by the Services. Under the California Consumer Privacy Act (“CCPA”), the Company acts as your service provider and agrees to process Personally Identifiable Information (“PII”), as defined in the CCPA, solely on your behalf for the purposes outlined in the Agreement and not to use or disclose the PII for any other purpose. With respect to any consumer-facing web or mobile-based applications the Company provides you, you agree that the Company may post a privacy policy and terms governing consumers’ use of such platforms. You are responsible for complying with these, as well as any other consumer policies you may establish. The Company makes no representations that its privacy practices comply with the laws of any jurisdictions outside of the United States (“U.S.”). If you choose to provide the Company with NPI from outside the U.S., you do so at your own risk and are responsible for compliance with any applicable foreign laws. You grant the Company and its authorized subcontractors the right to access and process Dealer Data on your behalf and only as necessary to provide the Services. The Company maintains administrative, technical and physical safeguards to protect the security and confidentiality of Dealer Data, including NPI, as required by Applicable Law and in accordance with industry standards; the Company contractually requires the same of its subcontractors and is responsible for their actions. “Dealer Data” means any information about your customers and prospective customers, which may include NPI, and any other proprietary data stored on your systems or networks.

SMS Messaging Terms

Program Name & Purpose: Dealer Alchemist SMS Alerts provide demo scheduling confirmations, reminders, and related updates. Example Messages: “Your Dealer Alchemist demo is confirmed for [date/time]. Reply STOP to cancel or HELP for help.” Message Frequency: Message frequency varies. Msg & data rates may apply. Opt-Out & Support: Reply STOP at any time to cancel. Reply HELP for help. Consent: Consent to receive SMS messages is not a condition of purchase. Carrier Disclaimer: Carriers are not liable for delayed or undelivered messages. Contact: For support, email [email protected]. We will not share your opt-in to an SMS campaign with any third party for purposes unrelated to providing you with the services of that campaign. We may share your Personal Data, including your SMS opt-in or consent status, with third parties that help us provide our messaging services, including but not limited to platform providers, phone companies, and any other vendors who assist us in the delivery of text messages. All the above categories exclude text messaging originator opt-in data and consent; this information will not be shared with any third parties.

Term and Termination

The initial term is set forth on the Agreement and commences upon the effective date thereof, unless a different period is stated in an Addendum or is required pursuant to an OEM certified program (the “Term”). Unless otherwise agreed, upon expiration of the initial Term the Agreement will continue on a month-to-month basis, unless you notify the Company of non-renewal in writing mailed to the Company’s address at least 30 days prior to the end of the then current Term. For any Terms that are month-to-month, a cancellation notice in writing mailed to the Company’s address received during a given month shall result in termination of Services at the end of the following month. Either party may terminate the Agreement for a breach by the other party not cured within 30 days of notice by the non-breaching party, or immediately upon notice if the other party voluntarily commences or has instituted against it (and not dismissed within 60 days) bankruptcy or similar proceedings, makes an assignment of all or substantially all of its assets for the benefit of its creditors, generally fails to pay its debts when due, or dissolves or ceases to do business. The Company may terminate the Agreement upon 5 days’ written notice if you fail to pay all amounts owed when due under any agreement with the Company, other than those subject to a good faith business dispute. Upon termination or expiration of the Agreement, all licenses granted hereunder shall terminate, your right to access the Services, including the Software, shall cease, the Company shall cease using Dealer Data in its possession, and each party shall cease using and return or destroy (except for backup copies made in accordance with normal document retention policies) the other party’s IP and Confidential Information in its possession.

Representations and Warranties

Each party represents and warrants that it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; the Agreement, when executed and delivered, will constitute a valid and binding obligation enforceable in accordance with its terms; the performance of obligations under the Agreement will not knowingly violate any other agreement with any third party; it has obtained and will maintain all consents, approvals, licenses or other authorizations necessary to perform obligations under the Agreement; and the execution and performance of the Agreement will not conflict with or violate any Applicable Law. The Company represents and warrants that it will provide the Services in a professional manner in accordance with industry standards. You acknowledge and agree that Services provided by third parties or third-party tools integrated into the Services may be subject to the policies and terms of such third parties, and you represent and warrant that you will comply with any such applicable policies and terms. If you provide the Company with any content or other Customer IP to use in connection with the Services, you represent and warrant that such use is authorized, will not constitute false advertising, and will not misappropriate, infringe, or otherwise violate any third-party rights. You represent and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Company for inclusion in any website developed under the Agreement are owned by you or that you have permission from the rightful owner to use them, and you will hold harmless, protect, indemnify, and defend the Company and its subcontractors from liability arising from the use of such elements. You further agree you will not reverse engineer, decompile, disassemble, or attempt to reconstruct, identify, or discover any source code, underlying ideas, or algorithms of any Intellectual Property Rights of the Company or create derivative works therefrom, and you shall not accept or use the website or services to create a competitive product or permit a third party to use the website to create a competitive product.

Limited Warranty; Disclaimer of Warranties

Except for the Company warranty stated above, the Company makes no warranty whatsoever with respect to the Software or Services, including any warranty of merchantability, fitness for a particular purpose, title, or against infringement of intellectual property rights of a third party, whether express or implied by law or otherwise. The Company makes no representations or warranties that the Services will be uninterrupted or error free. You acknowledge there are inherent risks in internet connectivity that could result in the loss of client privacy and property, including confidential information. Except as expressly stated, the Services are delivered by the Company and accepted by you “as is” and “as available.” The Company’s sole and exclusive liability and your sole and exclusive remedy for breach of the limited warranty shall be re-performance of the affected Services. If the Company cannot re-perform the Services in compliance with the warranty within a reasonable time (no more than 30 days) after written notice of breach, the Company shall refund a portion of the fees previously paid corresponding to the defective Services. You acknowledge the Company will not be responsible for your failure to achieve any specific results, productivity, or any other measurable performance metric, and the Company is not responsible for third-party disruptions or lost files or losses that may occur in the operation of a website developed and implemented under the Agreement.

Additional Disclaimers

The Company exercises no control over and accepts no responsibility for any third-party services or equipment outside its control, such as internet access and computer or network equipment, all of which are your responsibility. Accordingly, the Company does not warrant that the Services will be uninterrupted, secure, or error-free, nor does it warrant that any specific results will be obtained from use of the Services. You agree to cooperate to enable the Company to provision the Services and are responsible for reviewing advertising materials to confirm compliance with Applicable Law. The Company strives to ensure the information it provides is accurate and compliant but cannot guarantee either with absolute certainty and cannot be responsible for errors or omissions with respect to information made available through its Services. You are responsible for reviewing advertising campaigns and consumer communications and making appropriate disclaimers, including with respect to pricing errors. If you have administrative access to applications provided by the Company, you are responsible for actions taken through your administrative accounts. If you order the Company’s website products, you agree that installing its accessibility solutions is required for ADA compliance. If you order Services that include prequalified credit offers, you agree to make reasonable efforts to process and fund such offers and acknowledge the Company may not provide consumer credit report information directly to you. To the maximum extent permitted by Applicable Law, the Company disclaims all other representations and warranties, express or implied, including implied warranties of merchantability, fitness for a particular purpose, non-infringement, system integration, data accuracy, and title. You acknowledge the Company accepts no responsibility for policies of third-party search engines, directories, or other websites (“Third-Party Resources”) and that your website or content may be excluded or banned at any time by action of a Third-Party Resource; you agree not to hold the Company responsible for alleged damage or liability from such actions. You acknowledge many resources employed may be competitive in nature and that past performance is not indicative of future results. The Company reserves the exclusive right, during the Term, to approve or disapprove any design strategies, existing code, or other techniques considered detrimental to the website and provision of Services.

Limitation of Liability

In no event shall the Company be liable to you or any third party for any loss of use, revenue, or profit, loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of foreseeability and whether or not the Company has been advised of the possibility of such damages, and notwithstanding the failure of any remedy of its essential purpose. In no event shall the Company’s aggregate liability arising out of or related to the Agreement exceed the aggregate amounts paid or payable to the Company pursuant to the Agreement.

Indemnification

You agree to indemnify and defend the Company and its subsidiaries, affiliates and assigns, and its and their officers, directors, members, employees and agents (the “Company Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, incurred by the Company Indemnified Parties resulting from a third-party action, suit or proceeding (a “Claim”) as a result of your gross negligence or willful misconduct or a material breach of your representations, warranties, and obligations. You further agree to indemnify and defend the Company from losses resulting from a third-party Claim that any content or Customer IP you provide for use in the Services infringes a U.S. intellectual property right. The Company Indemnified Parties shall promptly inform you of any Claim for which indemnification may apply. You may direct the defense and settlement of any such Claim, with counsel of your choosing. The Company Indemnified Parties will provide you, at your expense, with information and assistance reasonably necessary to defend and settle the Claim. The Company Indemnified Parties may participate in the defense at their own expense but not control it. You will not settle any Claim without the written consent of the Company Indemnified Parties, not to be unreasonably withheld, conditioned or delayed.

Non-Solicitation

During the Term and for 12 months following its termination, neither party, without the other party’s prior written consent, shall directly or indirectly solicit or encourage any of the other party’s employees to leave employment, employ or contract with any of the other party’s employees, or employ or contract with any person who was employed by the other party during the prior 12-month period. This does not prohibit hiring responders to general employment ads.

Governing Law; Venue

The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Each party consents to the exclusive jurisdiction of the state and federal courts for Denver County, Colorado, provided that either party may seek injunctive relief from any court of competent jurisdiction. Even if the parties mutually agree to an alternative venue, the Company may, to recover unpaid fees, file an action in the federal or state courts for Denver County, Colorado and you hereby submit to such jurisdiction with respect to such action. The prevailing party shall be entitled to reasonable attorney fees and costs. The parties waive any rights to trial-by-jury.

Modifications

The Company may modify these Terms by posting the revised version online at least 10 days prior to the end of the then current month, effective the 1st of the following month, and will include advance notice of any material changes in your invoice, by email and/or through the Software. Within this 10-day period, you may notify the Company in writing if you wish to terminate the Agreement. The Company may then choose to accept the notice of termination, re-modify the Terms, or withdraw the modifications with respect to you. Absent such notice by you, you will be deemed to have accepted the changes.

General

The Agreement and these Terms constitute the entire agreement between you and the Company and supersede all prior agreements with respect to its subject matter; will be binding upon and inure to the benefit of the parties, their successors and permitted assigns; create no agency, partnership or employer-employee relationship between the parties (the relationship is that of independent contractors); and have no third party beneficiaries other than the Company Indemnified Parties with respect only to indemnification. If any provision is deemed invalid, illegal, or unenforceable, such provision shall be enforced as nearly as possible in accordance with the parties’ intent and the remainder shall remain in full force and effect. No failure or delay in enforcing rights shall be construed as a waiver. No party shall be deemed in default if performance is delayed or prevented by events beyond reasonable control, excluding payment obligations. Notices may be delivered electronically, by mail, or in person and shall be deemed served when delivered to the address specified in the Agreement; each party shall promptly inform the other of changes to contact information. The Agreement, including Addendums, may be executed electronically or digitally and/or in counterparts. Neither party may assign the Agreement without prior written consent, not to be unreasonably withheld, conditioned, or delayed, provided either party may assign upon notice to a financially solvent affiliate or a successor-in-interest due to merger, consolidation, or sale of substantially all assets. An asset sale does not relieve you of obligations to pay outstanding amounts at time of sale; unless the acquirer assumes the Agreement, you remain liable for fixed fees owed through the remainder of the then-current Term. Provisions that by their nature should survive termination shall survive.

Contact Information

If you have any questions or concerns about these terms or your personal information, please contact us at: [email protected]