Dealer Terms of Service
UPDATED DATE: August 20, 2024
EFFECTIVE DATE: January 20, 2024
RECITALS
WHEREAS, Highroad operates an online platform that allows car dealers to bid on used cars (“Highroad Platform”).
WHEREAS, Dealer wishes to bid for used cars on the Highroad Platform.
WHEREAS, Dealer shall pay Highroad a flat fee for access to the Highroad Platform, with unlimited opportunities to bid on vehicles.
NOW, THEREFORE, the parties hereby agree as follows:
1. USING THE HIGHROAD PLATFORM
1.1 Highroad Platform
Subject to the terms and conditions of this Agreement, Highroad grants Dealer a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to use the Highroad Platform solely during the term of this Agreement and solely for the purpose of purchasing vehicles that are displayed to Dealer via the Highroad Platform, as contemplated under this Agreement. All rights not expressly granted by Highroad to Dealer herein are reserved.
1.2 Prohibitions
Dealer shall not, directly or indirectly, do any of the following: (i) reverse engineer or attempt to extract the source code from or otherwise attempt to discover the underlying ideas and algorithms of the Highroad Platform or any related software, except to the extent that this restriction is expressly prohibited by applicable law, (ii) modify, translate, or create derivative works based on any element of the Highroad Platform or any related documentation, (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Highroad Platform, (iv) use the Highroad Platform for any purpose other than as expressly permitted by Section 1.1 above, or use the Highroad Platform for the benefit of any person or entity other than Dealer, (v) perform an action with the intent of introducing, via the Highroad Platform, any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature, (vi) interfere with or disrupt the Highroad Platform or the servers or networks providing the Highroad Platform, (vii), publish or disclose to third parties any evaluation of the Highroad Platform without Highroad’s prior written consent; (viii) use the Highroad Platform in a manner other than in accordance with Highroad’s documentation, including any computer, server, or compatibility requirements; or (ix) misrepresent or mask its identity when using the Highroad Platform.
1.3 Highroad Platform Limitations
Highroad may set and enforce limits on use of the Highroad Platform at its sole discretion. Dealer may not circumvent, or attempt to circumvent, such limitations.
2. PURCHASE AND SALE OF VEHICLES
Dealer acknowledges that the Highroad Platform connects Dealer with vehicle sellers, but the purchase and sale of vehicles occurs separately, off the Highroad Platform, directly between Dealer and the seller. If Dealer bids on a vehicle on the Highroad Platform, Dealer agrees to purchase the vehicle for Dealer’s bid price, which can be accepted by the seller of the vehicle at any time. Dealer retains the option to adjust the final offered price if there are material differences between the seller's description of the vehicle and the actual condition upon inspection.
3. DEALER CONTENT
3.1 License Grant
Highroad may include Dealer’s name, logo, trademarks, and other information, content, and materials provided by Dealer (“Dealer Content”) into the Highroad Platform to display to other users of the Highroad Platform. Dealer grants Highroad a non-exclusive, royalty-free, worldwide, sublicensable right and license to copy, modify, distribute, display, perform, and otherwise use the Dealer Content.
3.2 Discretion to Reject or Remove
Highroad may reject or remove from the Highroad Platform any Dealer Content for any reason or for no reason.
4. DEALER REPRESENTATIONS
Dealer represents, warrants, and covenants that:
It has all necessary rights, licenses, and clearances to enter into this Agreement and to grant the rights granted herein.
The Dealer Content and Highroad’s use of the Dealer Content shall not infringe upon, violate, or misappropriate any third-party intellectual property rights.
Dealer shall conduct its business so as to maintain and increase the goodwill and reputation of Highroad and to reflect favorably on the parties at all times.
Dealer is a licensed retail or wholesale dealer of vehicles.
Dealer shall comply with all laws and regulations that apply to Dealer’s business.
Dealer has secured and will maintain all permits, licenses, and governmental approvals required to operate Dealer’s business.
5. PROPRIETARY RIGHTS
5.1 Ownership
As between the parties, Highroad owns all right, title, and interest, including all intellectual property rights, in and to the Highroad Platform.
5.2 Intellectual Property Notices
Dealer shall not delete or alter in any manner the copyright, trademark, and other proprietary rights notices appearing on any materials provided by Highroad.
5.3 Feedback
Dealer may inform Highroad of bugs, errors, problems, and issues encountered using the Highroad Platform and suggestions, ideas, comments, and feedback relating to the Highroad Platform, including, without limitation, ideas for improvements and enhancements (collectively, “Feedback”). Dealer hereby assigns to Highroad all right, title, and interest to the Feedback, including all related intellectual property rights. Highroad is under no obligation to use any Feedback.
6. CONFIDENTIAL INFORMATION
Highroad communications to Dealer may contain Highroad’s confidential information. Highroad’s confidential information means materials, communications, and information disclosed by Highroad to Dealer that are marked confidential or that would normally be considered confidential under the circumstances. Highroad’s confidential information includes, without limitation, all information about vehicles and the sellers of vehicles provided by Highroad to Dealer. Dealer shall not disclose Highroad’s confidential information to any third party without Highroad’s prior written consent. Dealer shall not use Highroad’s confidential information other than to purchase vehicles displayed via the Highroad Platform, as contemplated under this Agreement. Dealer may disclose Highroad’s confidential information when compelled to do so by law if Dealer provides Highroad reasonable prior written notice and cooperates fully with Highroad in obtaining a protective order narrowing the scope of the compelled disclosure and protecting against any further disclosure.
7. USAGE DATA
Highroad shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Highroad Platform and related systems and technologies (including, without limitation, information concerning data provided by Dealer and data derived therefrom). Highroad will be free (during and after the term hereof) to use such information and data to improve and enhance the Highroad Platform and for other development, diagnostic, and corrective purposes in connection with the Highroad Platform and other Highroad products and services.
8. INDEMNIFICATION
Dealer shall indemnify and hold harmless Highroad and its affiliates, directors, officers, and employees against all liabilities, damages, losses, costs, fees (including legal fees), expenses, claims, allegations, and legal proceedings (including, without limitation, actions by a governmental authority) to the extent relating to or arising from (i) Dealer’s breach of this Agreement, (ii) Dealer Content, including, without limitation, any claim that any Dealer Content infringes upon, violates, or misappropriates any third-party intellectual property rights, or (iii) any allegation that the Dealer violates any applicable law or regulation.
9. DISCLAIMERS OF WARRANTIES
HIGHROAD DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, HIGHROAD DOES NOT WARRANT THAT THE HIGHROAD PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE.
10. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, OR LOSS OF DATA, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HIGHROAD’S AGGREGATE LIABILITY TO DEALER FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY DEALER TO HIGHROAD UNDER THIS AGREEMENT.
11. TERM AND TERMINATION
11.1 Term
The term of this Agreement shall commence on the Effective Date and continue for a period of 12 months unless terminated earlier by either party in accordance with the provisions of this Agreement. This Agreement shall automatically renew for successive 12-month terms unless either party provides written notice of termination to the other party at least 30 days prior to the expiration of the then-current term.
11.2 Termination
Either party may terminate this Agreement for any reason or no reason upon 30 days’ prior written notice to the other party. Either party may terminate this Agreement immediately upon written notice if the other party (i) is in material breach of this Agreement and fails to cure such breach within 10 days after receipt of written notice thereof, (ii) becomes insolvent or makes a general assignment for the benefit of creditors, or (iii) suffers or permits the appointment of a receiver for its business or assets.
11.3 Effect of Termination
Upon expiration or termination of this Agreement, all rights and obligations of the parties under this Agreement shall cease, except that (i) Dealer shall promptly pay Highroad all fees due and payable under this Agreement up to and including the effective date of expiration or termination, (ii) each party shall continue to be bound by the confidentiality obligations set forth in Section 7, (iii) the indemnification obligations set forth in Section 9, the disclaimers of warranties set forth in Section 10, and the limitations of liability set forth in Section 11 shall survive expiration or termination of this Agreement.
12. GENERAL
12.1 Assignment
Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, except that Highroad may assign this Agreement without the consent of Dealer (i) in connection with a merger, acquisition, or sale of all or substantially all of its assets or (ii) to an affiliate. Any assignment in violation of this Section 13.1 shall be null and void.
12.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of [State], without regard to its conflict of laws principles. The parties agree to submit to the exclusive jurisdiction of the courts of [County, State].
12.3 Entire Agreement
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
12.4 Notices
All notices under this Agreement shall be in writing and shall be deemed to have been given (i) when received, if personally delivered, (ii) three business days after being sent by registered or certified mail (return receipt requested), or (iii) one business day after being sent by a reputable overnight courier service, in each case to the recipient’s address set forth above or to such other address as may be designated by notice hereunder.
12.5 Severability
If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
12.6 Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
12.7 Allocation of Risk
The sections outlining the limitation of liability and the disclaimer of warranties establish how the risks associated with this Agreement are distributed between the parties. This distribution is a fundamental aspect of the mutual understanding between the parties.
12.8 Interpretation of Agreement
This Agreement has been crafted through negotiation by the parties involved and their respective legal counsel. Therefore, no part of the language in this Agreement shall be interpreted to favor or disadvantage any party. The headings and titles used in this document are intended solely for reference and do not influence the interpretation of the Agreement, which must be viewed in its entirety.
CONTACTING HIGHROAD
If you have any questions, comments, or concerns about our information practices or this Privacy Statement, please email us at privacy@highroadx.com or write to us at:
Attn: Dealer TOS
Highrd Corporation d/b/a Highroad, 11854 Bradburn Boulevard, Westminster, CO 80031