The Order Form is governed by the Terms and Conditions of the “Agreement” currently in effect between Dealer Inspire Inc. (or Launch Digital Marketing as the case may be, in either case “Dealer Inspire”) and the “Client.” Additionally, the following “Additional Terms” also apply:
1. Order Form Details. From time to time, Dealer Inspire and Client may execute Order Forms that will specify: (i) the types and amounts of digital ad (the “Product”) and related services, (ii) the price for such services, (iii) the maximum amount of money to be spent pursuant to the Order Form, and (iv) pertinent date information if any (campaigns to generally launch in month of execution of the Order Form, any effective date or other campaign start date included on the Order Form indicates estimate of initial start of campaign; actual effective date will be campaign go-live date which may vary). Client acknowledges and agrees that Media Budget information provided on the Order Form is an estimate only; Client consents and agrees to pay a +/-10% variation in actual Media Budget costs.
2. Term and Termination. Notwithstanding anything in the Agreement to the contrary, The Product-related services may not be terminated during the Initial Order Term; following such Initial Order Term the Product-related services will auto-renew on a month-to-month basis until either party provides no less than thirty (30) days’ notice of non-renewal (or the services are otherwise terminated).
3. Availability; Acceptance. Dealer Inspire will make reasonable efforts to notify Client within 5 business days of receipt of an Order Form signed by Client if the specified inventory is not available. Acceptance of the Order Form and these Additional Terms will be deemed the earlier of (i) written approval of the Order Form by Dealer Inspire Client (which may include paper, fax, or e-mail communication), or (ii) the display of the first Ad impression by Dealer Inspire .
4. Compliance with Order Form. Dealer Inspire will comply with the Order Form, including all Ad placement restrictions. Unless otherwise noted in writing, all campaigns will be on a CPM basis with initial pricing based on estimated delivery. Except with regard to CPA, CPL, or CPC campaigns (for which predictability, forecasting, and conversions for such campaigns may vary), Dealer Inspire will create a reasonably balanced delivery schedule. Notwithstanding, Dealer Inspire will have sole discretion for purchases of ad inventory, will choose all third-party vendors/publishers, contract directly with such third parties, and will control timing of all advertising placements.
5. Intellectual Property.
a. Dealer Inspire Content. As between the parties, Dealer Inspire or its affiliates, licensors or successors (as the case may be) shall own all right, title and interest in any technology or content developed by it, whether under this Agreement or otherwise, or that it uses to provide the Product services, including any software (including all routines and algorithms therein and documentation therefor), code, formulas, website platforms, AI, content library (or any portion thereof), website pages, ad templates, stock video footage, page design and layout and associated techniques, CGI or PERL scripting, other works of expression (including literary works, audio works and visual works), inventions, discoveries, processes, methods, compositions, and techniques, and any and all intellectual property rights therein or thereto (“Dealer Inspire Content”). Client hereby grants and agrees to grant to Dealer Inspire the perpetual, irrevocable, royalty-free, transferrable, sublicensable right and license to use any ideas, suggestions or anything else about the Product, Product-related services, or any other Dealer Inspire (or Dealer Inspire affiliate) services or products, suggested or provided by Client for any purpose, without payment or other compensation, forever and throughout the world.
b. Custom Material. In the event an Order Form includes creative services or other content creation by Dealer Inspire and for the benefit of Client, and creation of such custom content is not governed by separate Product or Order Form: upon payment in full for all amounts due under such applicable Order Form Dealer Inspire conveys and transfers all right, title and interest in and to any custom creative content (“Custom Material”) provided to Client or completed by Dealer Inspire , its affiliate(s) or its third-party vendor prior to the effective date of termination and pursuant to such Order Form. For clarification, in no event will Custom Material include any Dealer Inspire Content or content created by Dealer Inspire but rejected by Client for campaign use. Dealer Inspire may specify the amounts due for such Custom Material as a “Creative Fee” or other similar line item on the Order Form. In the event Dealer Inspire creates, produces or delivers any custom creative content which is rejected by Client, Dealer Inspire shall retain all right, title and ownership in and to the same. Custom Material may integrate certain Dealer Inspire Content and with regard to the same, during the Term Dealer Inspire grants Client a limited, revocable right and license to use such integrated Dealer Inspire Content solely as included in the Custom Material used in the FUEL Services.
6. Payment Terms. Payment terms are governed by the Agreement between the parties. In the event there is no Agreement, the following payment terms apply:
a. Dealer Inspire ’s performance is conditioned upon credit approval of Client. Client authorizes Dealer Inspire to obtain a credit report to determine creditworthiness. Payment shall be made by ACH or check only. Client agrees to pay all fees specified in the Order Form within 30 days of date of invoice; if any fees are not paid by Client within 30 days of date of invoice, Dealer Inspire may charge and Client shall pay interest on unpaid amounts at the rate of 1.5% per month or the highest rate permitted by law (whichever is less). Dealer Inspire reserves the right to forward all invoices via email. Client agrees to pay all of Dealer Inspire ’s costs, including attorneys’ fees, incurred in collecting overdue amounts.
b. Client shall be solely responsible for payment of any taxes applicable to its payment for and/or use of the Products, other than taxes on Dealer Inspire ’s income. Dealer Inspire reserves the right to increase fees at any time with 30 days’ notice to Client, provided Client shall have the right to terminate the Order Form in such case by providing Dealer Inspire with written notice prior to the end of such 30-day period. If payment is made by credit card, Client expressly authorizes Dealer Inspire to automatically charge the applicable card on a monthly basis during the term of this Agreement (unless otherwise agreed by the parties) and agrees that any fee increase made in accordance with this Section may also be charged to the same card in the same manner. If Client participates in any manufacturer co-op advertising program, Client is solely responsible for complying with all terms, conditions, and requirements necessary for reimbursement under such program.
7. Representations; Hold Harmless; Disclaimer. Only in the event there is no Agreement, the following terms apply:
a. Representations. Each party represents and warrants to the other party that it has the right and full power and authority to enter into agreement and fully perform its obligations hereunder. Client represents and warrants that: (a) it will comply with all applicable Laws, (b) it has the right and necessary authority to grant the rights with respect to the content it provides to Dealer Inspire, (c) the content it provides to Dealer Inspire is free of any viruses, Trojan horses, or other malware and will not contain or link to any information or material that: (i) is false, deceptive, misleading, libelous, defamatory, outdated, inaccurate, obscene, or otherwise inappropriate, (ii) infringe or violate any right of a third party, including intellectual property rights, rights of privacy and publicity, and contractual rights, and/or (iii) violate any applicable Laws.
b. Indemnification. Each party will defend and indemnify the other party and its respective member(s), parent(s), subsidiaries, directors, officers, employees, agents, and vendors from and against any and all claims, demands, damages, liabilities, costs and/or expenses, including reasonable attorneys’ fees, arising out of or related to any third-party claims alleging breach of its respective representations and warranties.
c. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED ABOVE, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. DEALER INSPIRE DOES NOT REPRESENT OR WARRANT THAT PRODUCT WILL BE FREE OF ERRORS. IN NO EVENT WILL DEALER INSPIRE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT OR THESE ADDITIONAL TERMS, INCLUDING LOST PROFITS, EVEN IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF DEALER INSPIRE EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT IN THE 3 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
8. Miscellaneous. Except with regard to increases in fees, Dealer Inspire reserves the right to update or amend these Additional Terms at any time and Client shall be notified of any such update or amendment upon posting to this page; Client consents to such notice. Dealer Inspire reserves the right to increase fees for any or all Services upon 30 days’ notice to Client, provided Client will have the right to terminate the Agreement in such case by providing Dealer Inspire with written notice prior to the end of such 30-day period. Failure of either party to insist upon strict compliance with this Agreement shall not be considered a waiver of such terms and conditions or any other terms and conditions, which may be enforced at any later date. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable, that provision shall be removed, and the remaining provisions shall remain in full force and effect. Except for payment obligations, neither party shall be liable to the other party for failure to perform by reason of a force majeure event or any other cause beyond such party’s reasonable control. These Additional Terms are governed in all respects by the laws of the State of Illinois, without reference to its conflicts of laws principles. The parties hereby agree that all claims arising under or related to this Agreement shall be brought exclusively in a federal or state court in Chicago, Illinois and hereby consent to the personal jurisdiction of such courts. In the event of any conflict between these Additional Terms and the Terms and Conditions of the Agreement currently in effect between Dealer Inspire and the Client and/or any other agreement, these Additional Terms shall control.