SERVICES INCLUDED:
If applicable, Dealer shall receive as part of the TRADE CYCLE™ service: i) an active link to the online appraisal service for placement on Dealer website, ii) a display of marine system values on Dealer website, iii) delivery of sales prospects for Dealers exclusive use, and iv) any additional services shown on Service Agreement.
TERM: This is a twelve (12) Month Agreement that begins on the Effective Date and automatically renews unless dealer submits written notice to DPS of its intention to not renew at least thirty (30) days prior to the start of such renewal term. Upon termination, DPS shall immediately cease providing all services as applicable and Dealer shall immediately cease its use of the applicable service(s).
PAYMENT: Dealer authorizes DPS to bill to and collect from Malibu Boats on the dealer's behalf for services provided. Malibu Boats has agreed to Net 30 Day payment terms. In the event of delinquent payment, DPS reserves the right to immediately suspend service to the dealer.
OWNERSHIP/PROPRIETARY RIGHTS: Each party agrees to maintain in confidence and use only as permitted in this Agreement all Confidential Information received from the other party, All right, title and interest in an to DPS technology services, patents, copyrights, trademarks and all other proprietary rights shall be owned by DPS. DPS reserves the right, in its sole discretion, to modify the services, including without limitation, the DPS services feature and functionality. Dealer agrees to not utilize a website trade appraisal lead conversion tool created by any other technology provider for a period of 36 months from the date of signed agreement. Dealer agrees to allow DPS to utilize dealer images and/or results in the DPS marketing and advertising efforts.
MUTUAL INDEMNITY: Each party agrees to indemnify and hold harmless the other party and its parents, subsidiaries, affiliates, officers, employees and agents, from and against any and all third party claims, losses, costs and expenses, including reasonable attorney’s fees arising out of the indemnifying party’s i) failure to comply with laws and regulations applicable to its performance of the Agreement or its operation of business or ii) breach or alleged breach of this Agreement.
WARRANTY/LIMITATION OF LIABILITY: Each party represents and warrants that it has the full authority to enter into this Agreement and is not bound by any restrictions from fulfilling its obligations hereunder. The service and any data delivered as part of the services (the “Data”) is provided ‘As Is’ and DPS makes no representation or warranty, whether express or implied, as to the accuracy of the services as to the accuracy of the services or that the data is free from errors and omissions, or the merchantability and fitness of the services or data for an particular purpose or use. DPS hereby disclaims any warranties not specifically set forth in this agreement and Dealer waives all other representations and warranties, express, implied statutory or arising by course of dealing or performance, custom, usage in the trade or otherwise. In no event shall DPS be liable for the results of Dealer’s use of the services or liable for any indirect, punitive, special or consequential damages or any kind, including without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction or any and all other commercial damages or losses. DPS’s liability to Dealer hereunder, if any, shall be strictly limited to direct damages not to exceed the amount actually paid by the Dealer to DPS, in a one month period.
MISCELLANEOUS: This Agreement shall be governed by the laws of the State of GEORGIA regarding the enforcement and interpretation of this Agreement without regard to any conflict of law principles. This Agreement terminates and supersedes all previous agreements either oral or written. The Agreement shall be binding upon and inure to benefit of the parties hereto and their respective permitted successor and assigns. In addition, DPS shall not be liable with respect to any claims, whether in contract, tort (including negligence) or otherwise, arising out of or related to the Agreement in an amount exceeding the account and service fees actually paid to DPS by Dealer during the current term, but not to exceed what is paid in a one month period. In no event, shall DPS be liable for any consequential, incidental, special, exemplary or punitive damages under this Agreement, including but not limited to any lost profits. Dealer understands that DPS services rely upon the Internet and ISP Providers, and is not liable for any failure of services due to unforeseen Internet outages.