Agreement
This agreement is made between your "Dealership" and Insignia Group, LC. This Agreement consists of the Terms and Conditions described below (the "Terms") and either (i) a proposal document or; (ii) an online subscription application (collectively the "Agreement"). You are bound to these Terms upon accessing the Insignia Group Services via your designated secure user credentials.
1. License of Insignia Group Accessories System:
Insignia Group hereby grants Dealership a non-exclusive license ("License") to use Insignia's proprietary e-catalog of accessories products (the "e-catalog") and related accessory content services including Insignia Group's proprietary API services (Application Protocol Interface) (collectively, the "Services"). Where applicable, the features of Services will be accessible utilizing a "URL" designated by Insignia that will be specific to the Dealership and provided to the Dealership during the implementation of the System (the "Dealership URL"). The License is granted only to the Dealership and Insignia expressly prohibits any other dealership, whether related to the Dealership within a group or otherwise from the unauthorized access, use or promotion of the Dealership URL. Any unauthorized sharing or transferring of data contained in Insignia's Services will be considered a breach of this agreement and Insignia, at its sole discretion, can take action it deems appropriate, including cancellation of Service with Dealership. Additionally and where applicable, any for-cause cancellation would not excuse Dealership from financial agreement based on the terms of the Agreement. Where applicable, the Dealership URL may be public facing and represent the Dealership's choices of accessory products for retail customers. The Dealership may, at Dealership's sole cost and expense, cause the Dealership URL to be placed on Dealership's website so as to permit visitors to Dealership's website to directly access the Dealership URL. Dealership's use of the System will at all times be subject to Insignia's Terms of Use.
2. Product Information:
The e-catalog will contain original equipment manufacturer (OEM) products and aftermarket manufactured products selected by the Dealership in its sole discretion. Pricing will be based on suggested list prices established by the respective product manufacturers and can be changed by the Dealership at any time. The Dealership authorizes Insignia to display within the Services, which encapsulate the e-catalog, all OEM production information provided by the Dealership's vehicle brand manufacturer, including, but not limited to, all images, logos, marks, specifications, and product data related to the vehicles, accessories and other products sold by Dealership.
3. Intellectual Property:
Dealership hereby acknowledges and agrees that the Services embodies and constitutes valuable intellectual property rights of Insignia Group, including but not limited to, copyrights and trade secrets, and that, except for the rights of use expressly granted to Dealership pursuant to the license granted herein, Insignia now holds and shall retain all rights, title, and interest to the Services, the trade name "Insignia" and "Insignia Group", and any documentation related to the foregoing. Unless expressly agreed to by the Parties in writing, any derivative works created by Insignia for Dealership during the course of this Agreement will be owned by Insignia Group and included in the license of the Services to Dealership. Upon termination of the Agreement, Licensee shall retain no rights of any nature with respect to Insignia's intellectual property comprising the Services.
4. Dealership Representations:
Dealership represents that the person designated as Dealership's "Authorized Agent" in this Agreement has the authority to bind Dealership to the terms of the Agreement. Further, Dealership represents that it is a legally authorized dealer in the vehicles included in the Services, and has the right to display in the Services all vehicle and product information Dealership provides to Insignia. Dealership will indemnify and hold Insignia harmless from any claim based upon information provided by Dealership to Insignia for inclusion in the Services, or added to the Services by Dealership (e.g. and not limited to part description, images, pricing, and fitment).
5. Insignia Group Fees (Where Applicable):
Insignia Group will invoice Dealership in accordance with the service options selected on the Agreement. Once the Dealership URL and log-in information are provided to the dealership via email, the dealer will be given a one-week grace period to schedule training or adjust catalog settings. After that one week, billing will begin regardless of use or training. In the event additional services are requested by Dealership, Insignia Group will provide such services at its then current hourly rate, which, as of the Effective Date, is $175 per hour. Unless otherwise specified, all amounts due and payable hereunder are to be received by Insignia by the 30th day following the date of the invoice or statement rendered to Dealership setting forth such amount. Any payment not made as agreed may result in interruption or termination of service. A "Reconnection Fee" equal to one month of the "Subscription" may apply to restore service to the Service following interruption due to nonpayment.
6. Term:
The term of this Agreement (the "Term") will be ANNUAL (automated payment deducted monthly or yearly): One (1) year from the date of execution. At the end of the Term, the Agreement will automatically renew by consecutive one (1) year periods unless either Party provides the other Party with a written notification of non-renewal at least sixty (60) days prior to the expiration of the then-current Term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Insignia Group has given Dealership written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Insignia reserves the right to adjust AccessorySync features at any time.
7. Termination of Agreement:
Termination of this Agreement by Dealership prior to the end of the selected Term will require payment of all amounts due through the end of the Term. Insignia Group may terminate this Agreement without notice to Dealership upon Dealership's failure to pay any amounts due hereunder within 15 days of the due date thereof, or the breach of any other term of this Agreement which is not cured within 10 days following written notice of such breach to Dealership. Upon termination of this Agreement, a final invoice will be rendered to Dealership for any remaining fees due through the end of the Term, which final invoice is due upon receipt. Upon termination of this Agreement, all license rights granted to Dealership shall terminate, and Dealership agrees that it will terminate all use of the Services.
8. Disclaimers and Limitation of Liability:
Insignia Group does not promise that the Services or any software, content or feature of the Services will be error-free or uninterrupted, or that Dealership's use of the System will provide specific results. The Services and its content are delivered on an "as-is" and "as-available" basis. Insignia Group disclaims all warranties, express or implied, including any warranties of merchantability and fitness for a particular purpose. Insignia disclaims any and all liability for the acts, omissions, and conduct of any third parties in connection with or related to Dealership's use of the Services. This disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether the claim is for breach of contract, tort, negligence or any other cause of action. Except where prohibited by law, in no event will Insignia be liable to Dealership or its customers for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Insignia has been advised of the possibility of such damages. This limitation of relief is an essential element of the bargain between the Parties. If, notwithstanding the above provisions of this Agreement limiting the liability of Insignia Group, Insignia Group is found to be liable to Dealership for any damage or loss which arises out of or is in any way connected with Dealership's use of the Services or any content, Insignia Group's liability shall in no event exceed the amount of fees, if any, with respect to any service or feature of or on the Services paid by Dealership to Insignia during the six month period prior to the date of the initial claim made against Insignia Group.
9. Miscellaneous Provisions:
Dealership and Insignia Group are independent contractors and nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or any agency relationship between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other party in any way. Dealership may not assign or transfer its rights or obligations under this Agreement, whether by operation of law or otherwise, without Insignia Group's prior written consent. The Agreement and the application or interpretation thereof will be governed exclusively by its terms and by the laws of the State of Florida, and venue for any action brought pursuant to the Agreement will be in Hillsborough County, Florida. The parties mutually acknowledge and agree that any controversy relating in any manner to this Agreement, any breach of this Agreement, or its termination, may involve difficult or complex issues which may be better understood by a judge rather than a jury, and accordingly, the parties hereby knowingly, voluntarily and intentionally waive their rights to a jury trial in connection with any litigation, and consent to a trial before a judge, without a jury. Any and all fees, costs and expenses reasonably incurred by the successful party in investigating, preparing for, prosecuting, defending against, or providing evidence, producing documents or taking any other action in respect of, such action will be the obligation of and will be paid or reimbursed by the unsuccessful party. Insignia also reserves the right to engage a collection firm for the purpose of collecting any delinquent charges, in which event Dealership will be charged a collection fee equal to the lesser of 25% of the total amount due Insignia, or such amount as permitted by applicable law. Communications between Dealership and Insignia Group may be through electronic means. For contractual purposes, Dealership (a) consents to receive communications from Insignia in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Insignia Group provides to Dealership electronically satisfies any legal requirement that such communications be in writing. The agreement between the parties consists of this Agreement, as well as the Terms and Conditions described here: https://igaccessories.com/ultimate/tandc.aspx the terms of which are incorporated into this Agreement by reference. Insignia Group reserves the right to adjust its Subscription fee by way of written notification to the Dealership sixty (60) days in advance of the change to the Subscription fee. If any provision of this Agreement is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability. No waiver by Insignia Group of any breach or default by Dealership of any provision of, or failure by Insignia Group to exercise in any respect any right or remedy provided in this Agreement shall be deemed to be a waiver of any other breach or default, nor of any other right or remedy, of the same or other nature