Last update: 3/13/2024

These terms and conditions (“Ts&Cs”) are a material part of the Agreement and incorporated reference as though fully set forth in the Agreement and any exhibits, addendum, or other referenced attachments thereto.

1) DEFINED TERMS. Capitalized terms not defined below shall have the meanings given elsewhere in this Agreement.

• "Offer" means a valuation to be presented by Carwiser to Users as indicative of a price Dealer would be willing to pay for that vehicle, upon submission of the vehicle to Dealer for final inspection, which may result in valuation adjustment.
• "Instant Offer Configurator" means Carwiser’s proprietary interface accessible by dealer presenting unique prompts for a dealer to respond to for specifying Offer Configurations.
• "Offer Configuration" means Carwiser’s proprietary that analyzes a set of vehicles and uses its proprietary AI and other logic, (the methodology) with which to calculate Offers on those vehicles, as defined and configured by Dealer using the Instant Offer Configurator.
• "Maximum Offers" means the maximum number of Offers presented to Users in a given month and is based on the package selected in the Monthly Fee Table set forth on the first page of this Dealer Agreement. In the event of a mid-month start date (after the 15th of the start date) the Maximum Offer count will be pro-rated by dividing the selected Maximum Offer count by the total number of days in the month, and then multiplying that value by the remaining days in the month.
• “Changes in Maximum Offer Packages” means dealer-requested mid-month increases in Maximum Offers will not be pro-rated and will immediately raise the Maximum Offers available in that Month and will be subject to the corresponding Maximum Offers package fee. Dealer-requested mid-month decreases in Maximum Offers and corresponding Maximum Offers package fee will not go into effect until the month following the decrease request.
• "Price Book" means a valuation data source that will be presented to the Dealer to choose when using the proprietary Offer Configuration.
• "Acquisition" means a completed transaction wherein Dealer purchases a vehicle from User.
• “Site(s)” means the website located at carwiser.com and any mobile or other versions thereof, and any other website designated by Carwiser.
• "User" means an individual or entity who accesses or has accessed the Site(s).
• "Dealer Content" means Dealer’s logos, trademarks, names, branding, links, and marketing and advertising content.

2) FEES. Carwiser reserves the right to change the applicable fees for the Services at any time upon 30 days' notice to Dealer. Dealer shall be solely responsible for the payment of any taxes applicable to its payment for and/or use of the Services. All fees will be invoiced monthly in advance and sent to the provided billing address. In the event of a mid-month launch, fees will be pro-rated accordingly, however any mid-month fee differential due to Dealer directed increases in Offer Maximums will be due in their entirety upon receipt, without proration. If Dealer is authorized in writing by Carwiser to pay by check, and Dealer fails to make any payment by the Due Date, Dealer shall pay a late charge on all past due amounts at the rate of one and one-half percent (1.5%) per month, compounded monthly (or, if lower, the maximum rate allowed by law). Further, Carwiser shall be entitled to recover from Dealer all collection costs, including attorney fees. Otherwise, Dealer (i) expressly authorizes Carwiser or its third party payment service to automatically charge the applicable credit card or ACH account on a monthly basis during the term of this Agreement; (ii) agrees that any fee increase may also be charged/debited in the same manner; (iii) agrees to notify Carwiser of any change in credit card account information prior to any applicable charge; and (iv) agrees that Dealer shall be responsible for any and all third party fees.

3) SERVICES. Carwiser reserves the right (but shall not have the obligation) to add, remove, update or modify features, deliverables, and products offered under the Services, and to modify the Site(s), without notification to Dealer. One (1) price book is included with any level of CarwiserXchange service, additional Price Books may be added for the Fee(s) specified on the Dealer Agreement page of this Agreement. Carwiser does not guarantee any minimum number of Offers or any Acquisitions as a result of Dealer’s purchase of the Service. The number of times Dealer's Offers are presented on the Site is determined based on several factors, including, without limitation, Offer Configurations active at the time of presentation, the strength of the Offer presented, and the level of participation (i.e. Maximum Offer limitations). Dealer’s obligation to pay the fees for the Maximum Offer package selected by Dealer are unconditional and not dependent on Acquisitions, Offers or level of promotion. The Maximum Offer packages are set forth in the Services Fee Table of this Agreement and subject to change pursuant to Section 2 of these Ts&Cs. Notwithstanding anything to the contrary herein, and without limiting the generality of the foregoing, nothing in this Agreement shall be construed to restrict Carwiser from including or not including certain Dealer Offers in connection with the Services in its sole discretion, and/or making non-material modifications to the Dealer Content for formatting and similar purposes. As between the parties, Dealer shall be solely responsible, at its own risk and expense, for (and Carwiser shall have no liability in connection with) ensuring the accuracy of the Dealer Content provided to Carwiser. Dealer understands that: (a) Carwiser may not be able to promote Dealer's Offers on the Site if Dealer does not use Carwiser’s Proprietary Offer Configurations on a timely basis; and (b) Carwiser will not provide any payment credit for Offers not provided due in whole or in part to Dealer’s failure to ensure that enough Offer Configurations are active to present Maximum Offers. Dealer is under no obligation to bid on, or provide a valuation for, any particular vehicle, and the Offer Configurations it chooses to send to Carwiser are under Dealer’s sole discretion. Dealer reserves the right in its sole discretion not to pursue an Acquisition, even after providing a valuation.

4) TERM AND TERMINATION. This Agreement shall commence as of the Effective Date and shall continue for the Term. The Initial Term of the Agreement shall be the three (3) calendar months (the "Initial Term") following any pro-rated partial calendar month. Upon expiration of the Initial Term, the Agreement shall automatically renew for an additional calendar month. Dealer may not terminate this Agreement during the Initial Term except for breach of this Agreement by Carwiser that remains uncured for 30 days. This Agreement may be otherwise terminated as follows: (i) by either party at any time and for any reason or no reason upon thirty (30) days prior written notice to the other party; (ii) by either party, immediately at any time in the event the other party commits a material breach of this Agreement and, if such breach is curable, the breach is not cured by the breaching party within thirty (30) days of its receipt of written notice of such breach; or (iii) upon written notice to the other party, if the other party becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of creditors, or ceases normal business operations. Carwiser reserves the right to: (i) suspend performance for Dealer’s failure to timely pay any invoice when due, provided that performance is promptly resumed upon Dealer’s payment of the overdue invoice(s); provided, however, that Carwiser will not be required to credit or otherwise compensate Dealer for any time that Dealer was without service due to Dealer’s failure to pay on time. Without limiting the generality of the foregoing, Carwiser shall have the right to terminate this Agreement immediately in the event the Services are deemed by Carwiser or alleged or determined by an appropriate governmental authority to violate any local, state or federal law or regulation. Sections 5-9 of the Terms and Conditions will survive any termination or expiration.

5) REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that such party has the full corporate right, power and authority to enter into this Agreement and that such party will comply with all applicable laws, rules, regulations, ordinances, and statutes in performing its obligations under this Agreement.

• Carwiser represents and warrants that in performing the Services described herein, it shall comply with the Telephone Consumer Protection Act (the “TCPA”) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”), as well as any applicable laws, rules and regulations relating to contacting consumers via telephone, text message and/or email.
• Carwiser further represents and warrants that in performing the Services described herein, it shall comply with all applicable state laws and regulations related to unauthorized dealer activity (e.g., bird-dogging and brokering).
• Carwiser further and specifically represents and warrants that it (i) has all rights to supply the Services set forth in this Agreement without violating the rights of any person or entity, including, but not limited to intellectual property or privacy rights, (ii) it shall perform the Services at or above industry standards and communicate with consumers at all times in a professional manner, and (iii) its performance under this Agreement shall not offend or violate any federal or state law, rule or regulation or common law right of any person or entity.
• Carwiser represents and warrants that it has implemented and maintains appropriate safeguards designed to protect User information in compliance with, all local, state, and federal legal requirements, including the so-called “Safeguard Rules” regarding the required administrative, technical, and physical safeguards under those laws, and all applicable and appropriate industry standards with respect to the privacy and security of Users that it maintains, processes, obtains, or otherwise has access to and will protect and secure any User information that it maintains, processes, obtains, or otherwise has access to as required under all applicable local, state, and federal privacy data and security laws and regulations.
• Dealer represents and warrants that it shall: (i) comply with all applicable federal, state, and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement and relating in any way to the Site(s), and (ii) that it owns or otherwise has all rights in the Dealer Content necessary to grant the licenses in Section 6.
• Dealer represents, warrants and agrees that it shall not disclose to any party or use for any purpose any non-public business, technical or other information relating to or provided by Carwiser (including this Agreement and all pricing information and intellectual property).
• EXCEPT AS SPECIFIED IN THE AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO SUCH PARTY’S DATA, CONTENT, MARKS, OR THE SERVICES PROVIDED UNDER THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE.

6) INTELLECTUAL PROPERTY. Except for rights expressly granted under this agreement, nothing in this agreement will function to transfer any of either party's Intellectual Property rights to the other party, and each party will retain exclusive interest in and ownership of its Intellectual Property developed before this agreement or developed outside the scope of this agreement.

• Dealer Intellectual Property. Notwithstanding the foregoing general clause introducing Section 6, the Dealer Content provided under this Agreement is proprietary, retained, and owned by Dealer and is the Dealer’s Intellectual Property. Dealer grants Carwiser a revocable, limited, royalty-free, non-exclusive license to display, reformat, transmit as required to provide the Services until this Agreement expires or terminates (the “Carwiser License”). The Carwiser License reserves the right to Carwiser to edit (through reformatting only) or reject any Dealer Content or portion thereof from display on the Site(s) in its sole discretion and without notice to Dealer. Carwiser acknowledges that its use of Dealer Content (referred to as the “Dealer IP” hereunder shall not create in it any right, title, or interest in Dealer IP.
• Carwiser Intellectual Property. Notwithstanding the foregoing general clause introducing Section 6, the Carwiser Instant Offer Configurator (the “Carwiser Configurator”), including all components of the Carwiser Configurator (the information obtained through the Carwiser Configurator prompts, analysis, processes, Offer Configuration, and Offers generated by the Configurator is proprietary, retained, and owned by Carwiser and is Carwiser’s Intellectual Property (referred to as “Carwiser IP”). Notwithstanding the foregoing nothing in the foregoing implies that Carwiser IP includes the association of Dealer Content and and a specific Offer made under this Agreement. The use of the Carwiser IP is subject to these Ts&Cs. Dealer acknowledges that its use of Carwiser IP hereunder shall not create in it any right, title, or interest in any Carwiser IP.

7) LIMITATION OF LIABILITY. EXCEPT FOR THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS AND BREACHES OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT AND BREACHES OF THE OBLIGATIONS SET FORTH IN SECTION 7 (INTELLECTUAL PROPERTY): (A) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY WHATSOEVER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE GREATER OF ONE MILLION DOLLARS OR THE CUMULATIVE AMOUNTS PAID BY DEALER TO CARWISER IN THE 12-MONTH PERIOD PRECEDING THE CLAIM.

8) INDEMNIFICATION. Each party shall indemnify, hold harmless and defend the other party, and its shareholders, members, officers, directors, employees, and agents, from and against any third-party claims, demands, losses, liabilities, actions, litigation, proceedings, judgments, settlements, obligations, injuries, damages, costs, charges, liens, taxes, fines, penalties and expenses (including reasonable attorneys’ fees and other costs and expenses of defense and pre-suit investigation), (collectively, “Claims”) arising out of, resulting from or in any way connected with, in whole or in part, (i) a material breach of its obligations or representations and warranties under this Agreement, (ii) any gross negligence or willful misconduct by the indemnifying party or its employees, agents or subcontractors, (iii) in the case of Carwiser as the indemnifying party, any claim that the Services infringe or misappropriate any patent, trademark, copyright, trade secret or other intellectual property right of any third party, or (iv) in the case of Carwiser as the indemnifying party, any regulatory action related to unauthorized dealer activity with regard to the Services performed pursuant to this Agreement (e.g., bird-dogging and brokering). Carwiser further shall indemnify, hold harmless and defend Dealer for any Claim related to the Services provided by Carwiser or Dealer’s use of the Data supplied by Carwiser to the extent that Dealer utilizes the Services and/or Data consistent with the purposes set forth herein. Any indemnification provided herein shall be conditioned upon (x) the indemnified party providing the indemnifying party with prompt written notice of any such Claim, (y) the indemnified party permitting the indemnifying party with a reasonable opportunity to assume and control the defense and settlement of such action; and (z) the indemnified party reasonably cooperating in the defense or settlement of such action. The indemnifying party will not settle or resolve any Claim in a manner that imposes any liability or obligation on any indemnified party without the advance written approval of the indemnified party, which approval will not be unreasonably withheld, conditioned, or delayed.

9) GENERAL. This Agreement will be governed by the laws of the State of Delaware without giving effect to its rules for conflicts of laws. All transactions and dealings between the Parties shall be deemed to occur in the State of Delaware. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties, whether written or oral. No change, modification or amendment of this Agreement shall be of any effect unless it is in a written amendment to this Agreement that is signed by both parties. Neither party may assign its obligations or rights under this Agreement without the prior written consent of the other party, except no consent is required to assign the Agreement to an affiliate or in connection with a merger, consolidation or sale, transfer or exchange of all or substantially all of its assets to which this Agreement relates. Any unauthorized attempted assignment in contravention hereof shall be null and void. This Agreement shall be fully binding upon and inure to the benefit of and be enforceable by the parties hereto and each of their permitted successors and assigns. Carwiser may hire or employ individuals and/or entities for purposes of assisting Carwiser with providing the Services, provided that Carwiser is ultimately and completely liable and responsible for all Services, including the supervision and direction of hired individuals and/or entities, and Dealer has no obligation or liability whatsoever with respect to subcontractors. The relationship of the parties hereto is that of independent contractors. Nothing in this Agreement shall be construed to imply a joint venture, partnership or principal-agent relationship between the parties. If any provision of this Agreement is held or declared to be unenforceable, invalid or void, then such provision shall be deemed to be severable from the remaining provisions of this Agreement, and the remaining provisions will remain in full force and effect. The failure of either party to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provisions or of the right of the party thereafter to enforce each and every such provision. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which together shall be deemed to be one and the same agreement. All notices required or permitted to be given by one party to the other under this Agreement shall be in writing and sent by: (a) certified mail, return receipt requested, (b) overnight carrier, or (c) electronic mail or (d) facsimile (receipt confirmed) to Dealer and to Carwiser at the addresses set forth herein or to such other address as the party to receive the notice has designated by notice to the other party.