EagleRider Dealership Exchange (“ERDX”) Terms and Conditions Effective JANUARY 2017
By using any of the ERDX services online, you agree, for yourself, your dealership, your company, and your representatives (collectively, "you"), to abide by the following terms and conditions, as amended from time to time by EagleRider:
EagleRider. These terms and conditions shall benefit JC Bromac Corporation and its various subsidiaries and affiliates (collectively, "EagleRider," "we," "our," or "us"). These terms and conditions are in addition to, and not in lieu of, any more specific agreements you may have or make with EagleRider (e.g., sales invoices, consignment agreements, online visitor agreements, privacy policies, loan agreements, etc.). To the extent there is any conflict between these terms and conditions and other more specific agreements you have signed with EagleRider, those other more specific agreements will control.
Accuracy of Information. You certify and agree that all registration and representative information you have provided to us is true, correct, and complete, and you will promptly notify us in writing if there is any change to the information you have provided.
Dealer Only. With limited exceptions, our sales are dealer-only and are open only to pre-registered and pre-approved licensed motor vehicle dealers, banks, manufacturers, and other commercial buyers and sellers. You agree not to bring any actual or prospective retail buyers to EagleRider, or to give them access to the ERDX online portals, or to negotiate or consummate any retail transactions on or adjacent to any of our property. You further agree not to appoint any representatives to act on your behalf who are not bona fide representatives of your dealership. You also represent to us that your transactions with us are exempt from any state sales or other taxes and agree that you, and not EagleRider, are responsible to pay any such taxes on your related or subsequent transactions.
EagleRider's Role. You agree that you are a sophisticated commercial party, and you agree to satisfy yourself as to the condition and value of a vehicle and the terms of any purchase prior to your actual purchase of the vehicle.
Payments. Payments for vehicles must be made by the registered customer purchasing such vehicles. Payments must be made in good funds and in a form acceptable to EagleRider. EagleRider reserves the right, in its sole discretion, to change the form and types of payment that are accepted by EagleRider. Payment for all vehicles must be made within 72 hours from purchase. All purchased vehicles must be picked up by you within 72 hours from purchase. If you do not pay for and/or pick up your vehicle within 72 hours of purchase, you will be liable for all damages, costs and expenses incurred by EagleRider as a result of your breach of the terms in this paragraph, including but not limited to the full vehicle purchase price and a daily storage fee.
Electronic Signatures. You acknowledge and agree that you and we may, from time to time, find it expedient to utilize electronic signature(s), acknowledgement(s), and/or approval(s) for sales invoices, receipts, titles, and other documents necessary or incidental to the transaction of business at EagleRider, whether online, in emails, or otherwise. To that end, you agree that such electronic signatures, acknowledgements, or approvals from you shall be effective and binding upon you, in the same manner as a handwritten signature, where circumstances indicate such intent by the signatory and/or where we choose to rely on such electronic acknowledgments.
Transportation of Vehicles. We may, from time to time in our discretion, transport or arrange via third parties to transport vehicles belonging to you at your request and/or as deemed necessary or desirable by us. In such cases, we are not liable for theft, conversion, loss, injuries, damage, claims, expenses (including legal fees), suits, or demands related to such vehicles ("Transportation Claims"), howsoever caused and to whomever caused. Such vehicles are being transported for you and at your request, and you assume all risks associated with the transportation of your vehicles. You further acknowledge and agree that your only claim or remedy for Transportation Claims, if any, shall be to and against the third-party carrier, its insurer, your own insurer, or the third- party that caused the alleged damage, and not to, against, or involving us.
Storage of Vehicles. Unless expressly agreed to the contrary in a writing signed by us, we are not a bailee of your property, consigned or otherwise. You have 72 hours from the date of purchase of any vehicle to pick up the vehicle. If you leave your vehicles or other property unattended on our premises beyond this time frame, you are solely responsible for any and all damage, theft, or loss relating to such property, regardless of our knowledge or involvement, and we may charge you storage fees as determined by each EagleRider facility.
Bound by Representatives. You are responsible for and bound by the actions of, and transactions entered into by your actual and appointed representatives, including (i) all persons who, from time to time, submit a completed application to EagleRider or signed by or for you; and (ii) any other person authorized by you in writing, verbally, or otherwise to represent you at or with EagleRider. You are responsible for monitoring your appointed representatives and protecting the privacy of your username and login information, and agree to inform us immediately, in writing, of any unauthorized use of same. If you are checking in or logging in as a representative for a dealership other than your own, you agree that you are a duly appointed and authorized representative for that dealership and have authority to bind that dealership to any actions or transactions you conduct.
No Right to Do Business. You have no obligation to do business with us. Likewise, you agree and acknowledge that we have no obligation to do business with you. We are a private business; we reserve the right to cease doing business with you or anyone else, at any time for any reason or no reason, in our sole discretion, collectively or separately among our affiliates; and you shall have no right, remedy, or cause of action for same. You acknowledge and agree that there are numerous sources, other than EagleRider, for you to acquire and sell used motor vehicles.
EagleRider's Proprietary Rights. You agree and acknowledge that EagleRider's products and services, and any software used in connection with EagleRider's products and services (including but not limited to the ERDX services), and the materials on the various EagleRider websites, contain proprietary and confidential information that is protected by intellectual property and other laws. Further, you agree and acknowledge that in the performance of its services, EagleRider may generate materials, including, but not limited to, photographs, reports, visuals, narratives, transactional records, and other data and documents derived from the foregoing, and that EagleRider shall own the rights to such materials. Except as explicitly provided in these terms and conditions, you may not take, appropriate, convert, distribute, transmit, display, reproduce, modify, create derivative works from, or otherwise exploit any of the EagleRider generated materials. EagleRider owns many trademarks and service marks. You may not use any EagleRider trademark or service mark without EagleRider's prior written consent.
Power of Attorney. For value received, you hereby irrevocably appoint EagleRider to be your agent and attorney-in-fact with full and complete authority to, on your behalf, take all steps, do all things, and sign any and all documents, including but not limited to odometer disclosure statements, title documents (including applications for duplicates), sales invoices and transportation instructions/orders, in each case as deemed necessary, incidental, desirable, or expedient by us, in our sole judgment, to any goods and/or services provided by us to you and/or to assist us with our efforts to collect payment for such goods and/or services.
DISCLAIMER OF WARRANTIES. UNLESS OTHERWISE SPECIFICALLY SET FORTH HEREIN OR IN A MORE SPECIFIC AGREEMENT YOU MAY HAVE OR MAKE WITH EAGLERIDER, ALL PRODUCTS AND SERVICES PROVIDED TO YOU BY EAGLERIDER (INCLUDING BUT NOT LIMITED TO THE ERDX SERVICES) ARE ON AN "AS-IS" BASIS. EAGLERIDER CANNOT AND DOES NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NON- INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY PRODUCTS OR SERVICES PROVIDED TO YOU BY EAGLERIDER, AND CANNOT GUARANTEE THAT ANY SERVICES PROVIDED TO YOU WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT SUCH SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Indemnification. You will indemnify, defend, and hold harmless EagleRider, its successors and assigns, and each of their respective directors, officers, employees, shareholders, members, representatives, and agents (each, a "EagleRider Party" and collectively, the "EagleRider Parties"), from and against any and all claims, losses, demands, cause of actions, debts, or liabilities, including attorneys' fees, arising out of or relating to (a) any personal injury or property damage that you may cause to any personnel or customers of EagleRider, or any third parties, or the property of any of the foregoing; (b) the breach or alleged breach of any agreement or obligation hereunder or under any other agreement that you may have with EagleRider; (c) any Transportation Claims; (d) any actions that a EagleRider Party may take as your agent, representative, or attorney-in-fact, pursuant to these terms or otherwise; (e) your use of any products or services of EagleRider; and (f) any liability or obligation that may otherwise arise from your participation in any sale conducted by a EagleRider Party, or the provision of products or services to you by EagleRider, including but not limited to the ERDX services.
Waiver and Release of Liability. You hereby waive any claim or cause of action that you may have, either now or in the future, against any EagleRider Party, and hereby release the EagleRider Parties from any and all liability under such claim or cause of action, in each case to the extent such claim or cause of action arises from or relates to (a) your entitlement to the protection of any consumer protection statute; (b) any disclosure issues that may occur at a sale conducted by us; (c) any Transportation Claim; (d) any damage to your vehicles or other property left or stored on any premises owned or operated by EagleRider, regardless of compensation paid to us for such storage; (e) any personal injury or other property damage suffered while on or around any premises owned or operated by EagleRider; and (f) any actions taken by a EagleRider Party as your agent, representative, or attorney-in-fact, pursuant to these terms or as may otherwise be authorized.
LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE EAGLERIDER PARTIES BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUES OR PROFITS, OR DAMAGES FOR LOSS OF BUSINESS), EVEN IF ONE OR MORE OF THE EAGLERIDER PARTIES ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE EAGLERIDER PARTIES, COLLECTIVELY, TO YOU IN CONNECTION WITH ANY CLAIMS OR CAUSES OF ACTION THAT YOU MAY ASSERT, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY YOU TO EAGLERIDER FOR THE PRODUCT(S) OR ERDX SERVICE(S) AT ISSUE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE LAST EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION BEING ASSERTED. BECAUSE SOME STATES/JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
Choice of Law and Consent to Jurisdiction. These terms and conditions shall be governed by the internal laws of the State of California, where EagleRider maintains its headquarters, and without regard to California's internal conflicts of law analysis. In the event that any claim or dispute that you may have with EagleRider is not subject to arbitration as set forth below, you agree that exclusive jurisdiction and venue for such claims and disputes shall exist in the federal and state courts located in Los Angeles County, California. You further agree and acknowledge that you may not sue EagleRider in any jurisdiction or venue except Los Angeles County, California.
ARBITRATION AND CLASS ACTION WAIVER.
ARBITRATION AGREEMENT. YOU AGREE TO ARBITRATE ANY DISPUTE OR CLAIM THAT YOU MAY HAVE WITH EAGLERIDER THAT ARISES OUT OF OR RELATES IN ANY WAY TO THESE TERMS AND CONDITIONS; ANY PURCHASE OR SALE, OR TRANSACTION WITH EAGLERIDER; YOUR USE OF ANY EAGLERIDER WEBSITE, ONLINE PORTAL OR ANY EAGLERIDER PRODUCT OR SERVICE; OR ANY OTHER AGREEMENT BETWEEN YOU AND EAGLERIDER. ARBITRATION CONDUCTED HEREUNDER SHALL BE FINAL AND BINDING. THIS ARBITRATION PROVISION MEANS THAT YOUR CLAIMS AGAINST EAGLERIDER WILL BE RESOLVED THROUGH ARBITRATION RATHER THAN LITIGATION IN COURT. YOU ACKNOWLEDGE THAT EAGLERIDER MAY (BUT SHALL NOT BE REQUIRED TO) SUBMIT TO ARBITRATION ANY DISPUTE OR CLAIM THAT IT MAY HAVE AGAINST YOU, WITH ANY SUCH ARBITRATION BEING GOVERNED BY THE PROVISIONS OF THIS SECTION.
ABILITY TO OPT-OUT. YOU MAY OPT-OUT OF THIS ARBITRATION AGREEMENT AND DOING SO WILL NOT IN ANY WAY PREJUDICE OR AFFECT YOUR DEALINGS WITH EAGLERIDER. TO EXERCISE THIS OPT- OUT RIGHT, YOU MUST PROVIDE WRITTEN NOTICE OF YOUR ELECTION TO OPT-OUT TO EAGLERIDER AT 11860 S. LA CIENEGA BLVD. HAWTHORNE, CA 90250_ NO LATER THAN 30 DAYS AFTER YOUR INITIAL ACCEPTANCE OF THESE TERMS AND CONDITIONS AS SET FORTH IN THE FIRST PARAGRAPH HEREOF. THE PROCEDURE SPELLED OUT HEREIN IS THE ONLY WAY TO OPT-OUT OF THIS ARBITRATION AGREEMENT, AND ANY ATTEMPTS TO OPT-OUT AFTER THE DEADLINE SET FORTH HEREIN WILL BE INEFFECTIVE.
CLASS ACTION WAIVER. ANY ARBITRATION PROCEEDING UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS OR REPRESENTATIVE PROCEEDINGS OF ANY KIND ARE NOT PERMITTED AND YOU EXPRESSLY WAIVE YOUR ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE PROCEEDING AGAINST EAGLERIDER. TO THE EXTENT THAT YOU OPT-OUT OF ARBITRATION FOLLOWING THE PROCEDURE SET FORTH ABOVE, OR IF THIS ARBITRATION AGREEMENT IS FOUND INAPPLICABLE TO YOUR DISPUTE WITH EAGLERIDER, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION. YOU AGREE THAT THIS CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF OUR AGREEMENT AND THESE TERMS AND CONDITIONS AND THAT IT MAY NOT BE SEVERED. IN THE EVENT THAT THIS CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, THEN THE ENTIRE AGREEMENT TO ARBITRATE WILL BE NULL AND VOID.
Arbitration Procedures/Arbitrator Authority. Any dispute or claim subject to arbitration pursuant to these terms shall be submitted to binding arbitration administered by the Judicial Arbitration and Mediation Service ("b>JAMS") pursuant to its Streamlined Arbitration Rules and Procedures as in effect at the time of the submission of such dispute or claim (the "JAMS Streamlined Rules"). The disputes and claims subject to arbitration will be resolved by a single arbitrator selected pursuant to the JAMS Streamlined Rules. The arbitrator shall be bound by and shall strictly enforce these terms and conditions and any other applicable agreement between you and EagleRider, and may not limit, expand or otherwise modify any of these terms and conditions or the provisions of any other applicable agreement between you and EagleRider. The arbitrator may award any relief that a court of law could, applying the limitations of liability contained in these terms and conditions. The arbitrator may award injunctive relief if permitted by law – but the injunctive relief awarded by the arbitrator may not extend beyond our dealings with each other. The laws of the State of California will apply to any claims or disputes between us. Any arbitration will be held in Los Angeles, California, unless otherwise agreed upon by the parties in writing. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator shall award EagleRider any costs and fees to which EagleRider may be entitled in connection with any indemnification claim, and may also, in his or her discretion, award costs and fees to EagleRider if it is determined that you submitted or filed any arbitration in bad faith or that your claims against EagleRider have no reasonable legal basis.
Individual Guaranty. By using our services, you personally guarantee full payment and performance of all the obligations you incur to EagleRider, whether personally or as a representative of another entity, despite the fact that you may be participating in a representative capacity. Liability under this general guaranty is in addition to your dealership's liability and is joint and several with the dealership's liability. This is a general guaranty of payment and performance and not merely a guaranty of collection.
Understanding of Terms and Conditions. You acknowledge and agree that you understand these terms and conditions written in English and that you have sought the help of an attorney and/or translator as you deem necessary to understand it.