CLEARCAR SERVICES TERMS AND CONDITIONS

This is a binding legal agreement between ACV Auctions Inc., for itself and its affiliates (“ACV”), and the customer (“Customer”) entering into one or more Order Forms, as defined below, to receive some or all of the services described below. ACV and Customer are sometimes individually referred to herein as a “Party” and collectively as the “Parties.”  These ClearCar Services Terms and Conditions (the "ClearCar Terms") are effective as of the date specified above, as updated from time to time.

NOW, THEREFORE, in consideration of the premises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ACV and Customer agree as follows:

• Order Form(s). The Parties will enter into  one or more order forms or agreements (each, an “Order Form”) for ACV to provide the Services, as defined below, to Customer.  Each Order Form will include the fees and payment terms for such Services, the duration of the Services being received under the Order Form, and such other matters as the Parties shall determine. Each Order Form, once signed, shall be binding on the Parties and shall be governed by these ClearCar Terms.  By accessing or using the Services described herein, in whole or in part, Customer agrees to these ClearCar Terms.  

• Services. Services may include one or more of the following offerings and/or such other products and serviServices may include one or more of the following offerings and/or such other products and services that may be part of the ClearCar services provided under an Order Form, whether or not such offerings, products and/or services are specifically referenced in an Order Form  (the “Services”).  ces that may be part of the ClearCar services provided under an Order Form, whether or not such offerings, products and/or services are specifically referenced in an Order Form  (the “Services”).  

  • Widget Services

    1. External Widget. 

       1. ACV’s external consumer vehicle valuation trade widget (“External Widget”) is a consumer-facing vehicle valuation tool intended for display on Customer’s web site(s) (“Customer Site(s)”). Consumers accessing the External Widget through Customer’s Site(s) have the ability to (i) input information about their vehicle, (ii) capture and submit photos of their vehicle to allow the Services to analyze such photos to determine vehicle condition, and (iii) express interest in obtaining a quote from the Customer to purchase their vehicle. All references to the External Widget are deemed to include the “QuickQuote” widget, which is an abbreviated version of the External Widget that allows a consumer to obtain an estimated value for their vehicle by inputting more limited information than the full External Widget. Except as set forth herein, all information submitted by consumers through the External Widget will be directed to Customer’s ClearCar account (“Customer Account”).

       2. Customer may also choose to provide the Consumer Information, as defined below, submitted through the External Widget to a dealership within Customer’s network (a “Dealership Location”) if requested by the consumer, provided such Dealership Location is also an active subscriber to the Services and is in compliance with these ClearCar Terms.

    2. Internal Valuation Services. ACV’s internal consumer vehicle valuation services are vehicle valuation services that are for internal use by Customer, including in Customer’s service lane (the “Internal Services”). Authorized Users, as defined below, can access the Internal Services through the Customer’s internal computer network and obtain real-time valuations of vehicles of Customer Leads, as defined below, obtained from sources other than the External Widget; such Customer Leads may come from various sources, including but not limited to from Customer’s own system, third-party systems or directly from consumers visiting Customer’s dealership (collectively “Customer Lead Sources”). 
       

    3. Use of Widget Services. If Customer chooses to receive the External Widget (including the External Widget on the Microsite) and/or Internal Services (each, a “Valuation Tool”), Customer hereby authorizes ACV to the extent applicable based on the Services being provided: (i) to display the External Widget on designated Customer Site(s); (ii) to transmit to Customer’s CRM system via API, email, integration with CRM integration vendors designated by Customer (“Integration Partners”), or other mutually agreeable method, the information provided through the Valuation Tool regarding the consumer, the consumer’s vehicle (including photographs and other data provided by the consumer), and the valuation provided (such information, the “Consumer Information”); (iii) to contact Customer’s web site providers, CRM providers, Integration Partners, and Customer Lead Sources to assist with the implementation of the Valuation Tool; and (iv) to contact Customer’s IT personnel to assist and answer questions about the implementation and related matters. Customer agrees that ACV is not liable or responsible for Integration Partners’ acts or omissions or what Integration Partners do with Consumer Information, and it is solely Customer’s responsibility to ensure it has agreements or other protections in place with such Integration Partners as Customer in its sole discretion deems necessary.
       

  • Microsite

    1. ACV’s microsite is a white-labelled website hosted by ACV, which displays the External Widget together with Customer branding (the “Microsite”).

    2. If Customer chooses to have ACV create and host a Microsite, other than Customer branding, all content and information displayed on the Microsite will be provided by ACV and is considered ACV’s Proprietary Information, as described in Section 6. The domain name registration for a Microsite also is ACV Proprietary Information. Exclusive of Customer branding, only ACV has the right to modify the content and information displayed on the Microsite in ACV’s sole discretion.
       

  • Communication Services.

    1. Managed Services.  ACV may provide customer lead generation services in support of Customer’s efforts to purchase used vehicles from consumers (“Managed Services”). Managed Servies include communications (including text messages) with consumers on Customer’s behalf, lead funnel optimization, and setting up appointments with the Customer for interested consumers.  

    2. Messaging Services. ACV may provide Customer with the ability to generate and send lead nurturing and related messaging directly from the Customer Account in support of Customer’s efforts to communicate with consumers for various purposes (“Messaging Services” and collectively with Managed Services, “Communication Services”).  Messaging Services may include marketing and transactional communications (including text messages) with consumers on Customer’s behalf, which may include communicating vehicle offers to such consumer, making consumer aware of services offered by Customer and any other communications that Customer wishes to send to consumers.  
       

    3. Customer’s use of Communication Services are subject to the following provisions:
       

       1. Consumer leads can be obtained either through the External Widget (including the External Widget on a Microsite) when consumers consent to be contacted through the External Widget’s opt-in process (“External Widget Leads”) or directly by Customer or a third-party at Customer’s request (“Customer Leads”, and together with External Widget Leads, “Consumer Leads”).

       2. Customer shall require and ensure that all consumers associated with the Customer Leads consent to the submission of their information via a process that (i) complies with applicable federal, state and local laws (including, without limitation, applicable consumer protection laws and the ESIGN Act), (ii) includes legally compliant consent language authorizing Customer to deliver, or cause to be delivered, marketing and transactional communications such as telephone calls and text messages, including to mobile numbers and using automated means, pre-recorded messages, and/or AI voice, and (iii) allows any information provided by such lead to Customer (including any personally identifiable information) to be lawfully shared with ACV, its agents, contractors, and suppliers for the purposes contemplated by these ClearCar Terms. Such consent shall have been obtained prior to submission of any Customer Lead to ACV without any prior revocation. With respect to all Consumer Leads, Customer agrees to create and enforce its own internal safe harbor and Do Not Call policies and procedures in full compliance with state and federal law, and Customer agrees to transmit any Do Not Call requests submitted by Consumer Leads to ACV in a timely manner.

       3. If set forth in an Order Form, ACV may charge fees for the use of Communication Services.

       4. Customer is solely responsible for the content of all communications, including text messages, that Customer sends or that ACV sends on Customer’s behalf as part of the Communication Services. Communications shall not include content that is illegal, infringing on the rights of others, libelous, offensive or is otherwise objectionable. ACV reserves the right, but is not obligated, to review communications before sending on Customer’s behalf and may choose to decline sending one or more communications in its sole but reasonable discretion; sending a communication is not deemed approval by ACV of the content thereof.

  • Print Offer

    1. The Services may include functionality for Customer to generate a document addressed to a consumer regarding their vehicle and the Quote, as defined below (such feature referred to as “Print Offer” and such generated offers referred to as “Generated Offers”). Through this Service, Customer may also have the option to electronically send a Generated Offer to a consumer, including via text message, through the Customer Account.

    2. Customer’s use of Print Offer is subject to the following provisions:
       

       1. Use of Print Offer is completely voluntary and Generated Offers can only be used for communicating with a consumer regarding an offer on such consumer’s vehicle.

       2. Notwithstanding anything to the contrary herein: (i) Customer acknowledges and agrees Print Offer is offered by ACV solely as a convenience to Customer; (ii) Print Offer is provided by ACV as-is with no warranties of any kind, express or implied; and (iii) ACV disclaims all liability with respect to the use of Print Offer or the Generated Offers.

       3. Customer is responsible for the content of all Generated Offers, including ensuring Generated Offers contain all necessary disclosures or disclaimers as required by applicable federal and state laws.

  • Customer Lead Upload. Customer may have the opportunity to upload Customer Leads directly or through Integration Partners to its Customer Account using functionality offered by ACV.  If Customer uploads Customer Leads to its Customer Account, the following provisions apply:

    1. All Customer Leads uploaded to the Customer Account must comply with the requirements set forth in Section 2(c)(iii)(2).

    2. With respect to Customer Leads from third-party Customer Lead Sources or Integration Partners, Customer represents and warrants it has the right to have such third-party send Customer Leads directly to ACV and for ACV to use such Customer Leads as contemplated in these ClearCar Terms.
       

    3. Customer shall provide, and shall ensure all third-party Customer Lead Sources and Integration Partners, to the extent applicable, provide, all reasonable cooperation to ACV as necessary to enable the upload service.
       

    4. ACV may choose to limit the volume of Customer Leads uploaded if deemed necessary by ACV in its sole discretion.
       

  • Consumer Lead Sharing. Customer may from time to time instruct ACV to share Consumer Information and/or Consumer Leads with Customer’s third-party service providers, such as other dealer management systems, Integration Partners, and third party consent management vendors (collectively “Customer Service Providers”).  When Customer provides such instructions, ACV is authorized to share Consumer Information and/or Consumer Leads with Customer Service Providers, including through an integration with Customer Service Providers if so instructed, and to subsequently rely on information and instructions from Customer Service Providers regarding Consumer Information and Consumer Leads as if such information and instructions were coming directly from Customer. Customer further agrees that ACV is not liable or responsible for Customer Service Providers’ acts or omissions or what Customer Service Providers do with Consumer Information and/or Consumer Leads, and it is solely Customer’s responsibility to ensure it has agreements or other protections in place with such Customer Service Providers as Customer in its sole discretion deems necessary.  

• Additional Terms Regarding the Services.

  • Customer will provide, and will cause its web site and CRM providers to provide to ACV, all information, materials, and access as reasonably needed for ACV to perform the Services. Customer agrees to respond promptly to all ACV requests for required information and materials.
  • Customer may only provide access to the Services to its personnel requiring such access to perform their job duties (“Authorized Users”).
  • Customer has sole responsibility for maintaining the security and confidentiality of user credentials and passwords issued to Customer and Authorized Users to access the Services and/or Customer Account (“User Credentials”). Customer only will provide User Credentials to Authorized Users. Customer agrees to notify ACV immediately of any known or suspected unauthorized disclosure or use of the User Credentials or breach of security or confidentiality of the User Credentials. Customer remains solely responsible for any and all use of the Services by Authorized Users and all activity that occurs during and pursuant to use of the User Credentials.
  • Customer will require all Authorized Users to participate in training sessions provided by ACV upon ACV’s reasonable request.
  • Customer shall obtain, operate and maintain in good working order all equipment needed to connect to, access or otherwise use the Services via the Internet, including without limitation, modems, servers, hardware, software, network and communication services. Customer shall ensure that all such equipment is compatible with the Services (and, to the extent applicable, any software interface) and complies with all configurations and specifications provided by ACV from time to time. Customer shall maintain the integrity and security of its equipment (physical, electronic and otherwise) and Customer Account passwords.
  • If Customer desires to make the Services available to one or more Dealership Locations, it may only do so if it identifies the Dealership Locations on an applicable Order Form and provides to ACV all information and materials reasonably requested by ACV to enable access to the Services by Dealership Locations. Customer shall ensure that all Dealership Locations are in compliance with Customer’s obligations under these ClearCar Terms and shall be responsible and liable for the acts or omissions of Dealership Locations. As used herein, unless the context dictates otherwise, Customer shall include DealIf Customer desires to make the Services available to one or more Dealership Locations, it may only do so if it identifies the Dealership Locations on an applicable Order Form and provides to ACV all information and materials reasonably requested by ACV to enable access to the Services by Dealership Locations. Customer shall ensure that all Dealership Locations are in compliance with Customer’s obligations under these ClearCar Terms and shall be responsible and liable for the acts or omissions of Dealership Locations. As used herein, unless the context dictates otherwise, Customer shall include Dealership Locations.ership Locations.
  • ACV reserves the right without liability to suspend or terminate Customer’s access to some or all of the Services and/or the Customer Account if Customer fails to pay amounts when due under an Order Form or if ACV determines in its sole discretion that continued access and use of the Services may impose legal liability on ACV, disrupt the Services or disrupt others’ use of the Services. Where practicable as determined by ACV in its sole discretion, ACV will notify Customer in advance of any such suspension or termination.
  • The Services are provided solely to Customer for its internal business use and no other purpose. Customer shall not provide access to the Services to any third party other than Authorized Users and Dealership Locations as permitted above.
  • ACV is the sole and exclusive owner of all right, title, and interest in the Valuation Tools and all content and materials therein. Customer will not take any action to interfere with the operation of the Valuation Tools, nor will it copy or distribute any of the content or data included therein. Customer may not use or disclose the valuation provided through a Valuation Tool (the “Quote”) for any purpose other than to communicate with a consumer regarding the possible purchase of the vehicle in question, and may use the other Consumer Information provided in the ordinary course of Customer’s business so long as it does so in accordance with Section 2(c)(iii)(2) and otherwise in accordance with all applicable laws.

• Payment Terms

  • Except as otherwise provided in these ClearCar Terms, all payments from Customer shall be due within thirty (30) days after the date of the applicable invoice. Such payments shall be made in full in United States Dollars. Other than amounts disputed in good faith by Customer, any amount not paid when due shall bear a late payment charge, until paid, at the rate of one percent (1%) per month or, if less, the maximum amount permitted by law. ACV, in its sole discretion, may terminate these ClearCar Terms or cease providing Services if Customer fails to pay any invoice within thirty (30) days after the Customer receives notice from ACV that it has failed to pay an undisputed invoice. Customer must notify ACV in writing of any disputed invoice amounts (including an explanation for such dispute) within fifteen (15) days of receipt of the disputed invoice.
  • All payments to ACV are exclusive of federal, state, local and foreign taxes (other than taxes assessed on ACV’s income), duties, tariffs, levies and similar assessments on the use of the Services hereunder, and Customer agrees to bear and be responsible for the payment of all such charges.

• Term and Termination

  • These ClearCar Terms, unless terminated earlier as provided below, will be in effect for so long as there are any outstanding Order Forms.
  • Either Party may terminate these ClearCar Terms and all outstanding Order Forms if the other Party is in material breach of these ClearCar Terms, including any Order Form, and fails to cure such breach within thirty (30) days after written notice thereof; provided, however, there shall be no cure period in the event of a breach by Customer of Sections 2(c)(iii)(2), 3(h), 3(i), 6(a), 7(c), and 8(b).

• Confidentiality and Ownership of Information

  • Customer acknowledges and agrees that the Services (including the Valuation Tools) and any software or messages used by ACV in conjunction with the Services contain proprietary information and data of ACV and its licensors that is protected by applicable copyright, trademark, patent, and other intellectual property laws (“ACV’s Proprietary Information”). ACV’s Proprietary Information may only be used in accordance with these ClearCar Terms, and Customer agrees not to sell, rent, lease, loan, transfer, reproduce, duplicate, distribute, publish, modify, migrate, store, copy, create derivative works from, or transmit ACV’s Proprietary Information to any third party.
  • “Confidential Information” means nonpublic information revealed by or through a Party (whether in writing, orally or by another means) to the other Party in connection with these ClearCar Terms or the Services provided hereunder. Neither Party may disclose the other Party's Confidential Information to any third party, or use it for any purpose unrelated to these ClearCar Terms or the Services, except as provided in this Section. Either Party may disclose the other Party's Confidential Information (i) to such Party's officers, directors, employees, attorneys, accountants, or consultants as necessary in furtherance of these ClearCar Terms and shall be liable for any breach of this Section by any of such parties, (ii) in the event disclosure is required by law, regulation, court order, subpoena, or other compulsory legal process, and (iii) upon the other Party's prior written consent, which the other Party may grant or withhold in its sole discretion.
  • Ownership of Information and Use of Data.

    1. Customer owns Consumer Information and all of its customer data that is attributable to Customer and its Dealership Locations (“Customer Data”). Upon request, Customer will disclose to ACV data regarding vehicles sold by consumers to Customer as a result of the Services (“Sales Data”). ACV will not sell such Sales Data to any third party. However, ACV shall have the right to use non-personally identifiable Customer Data and Sales Data to provide the Services and for internal purposes, and may use such data in an aggregated or anonymized form in furtherance of ACV’s products and services, provided such data is not attributable to or identifiable as Customer’s data. ACV may also use data that is publicly available, including data Customer displays on its websites, for any purpose and without limitation.

    2. In connection with ACV’s performance of Services under these ClearCar Terms, the Parties agree to the data privacy terms in the below Section 6(c)(iii) and in the attached Data Security Addendum (collectively the “Data Privacy Terms”). ACV may from time to time update the Data Privacy Terms to address changes to existing or newly enacted consumer privacy laws and/or otherwise as ACV deems necessary to comply with applicable consumer privacy laws. Such updated Data Privacy Terms will become binding on the Parties when posted. Customer agrees to periodically consult these ClearCar Terms for the purpose of receiving such updates.
       

    3. ACV and Customer acknowledge and agree that ACV may collect, access, maintain, use, process and transfer personal information included within Consumer Information and Consumer Leads (“Personal Data”) to perform ACV’s obligations under these ClearCar Terms and otherwise consistent with ACV’s Privacy Policy. In furtherance of the foregoing: (1) ACV and its affiliates may use such Personal Data to provide the Services as contemplated, and (2) for their internal business purposes, including in connection with their products and services, so long as with respect to usage under clause (2), any such information is aggregated, deidentified or otherwise anonymized such that it does not identify any particular individual. To the extent applicable, each Party shall be responsible for its own compliance with any consumer privacy laws related to the collection, use and disclosure of Personal Data pursuant to these ClearCar Terms, including, but not limited to: (a) requests from a data subject to exercise his or her rights under said laws; and (b) any complaint, notice or other communication from a data subject or government authority or judicial body which relates to the processing of Personal Data.
       

• Trademarks; Marketing.

  • Customer hereby grants to ACV a non-exclusive, revocable, royalty-free, worldwide license to use, copy, display, and distribute Customer’s logo, trade name and any other trademarks owned or licensed by Customer (the “Customer Marks”) solely as necessary for ACV to provide the Services as contemplated by these ClearCar Terms. ACV will do nothing inconsistent with the ownership of the Customer Marks and related goodwill, and all use of or references to the Customer Marks will inure to the benefit of Customer and its licensors. ACV will do nothing to impugn, challenge, or assist in any challenge to the validity of the Customer Marks, any registrations thereof, or the ownership thereof. All rights with respect to the Customer Marks not specifically granted in these ClearCar Terms will be and are hereby reserved to Customer and its licensors.
  • ACV has the right in its discretion to include ACV branding in the Valuation Tools and on the Microsite (e.g., “Powered by ClearCar” or “Powered by ACV”).
  • Depending on the nature of the Services, Customer may be given a non-exclusive, non-sublicensable, revocable and non-transferable license to use ACV’s trademarks, including CLEARCAR, ACV, and ACV AUCTIONS, and/or any other mark, logo or trade name owned or licensed by ACV (the “ACV Marks”). Except as expressly authorized in an Order Form or otherwise agreed in writing by ACV, Customer will not use the ACV Marks. Any such approved use must be done in accordance with ACV’s trademark guidelines and/or any other instructions provided by ACV from time to time. ACV may revoke any trademark license grant herein at any time upon notice to Customer. Customer will do nothing inconsistent with the ownership of the ACV Marks and related goodwill, and all use of or references to the ACV Marks will inure to the benefit of ACV and its licensors. Customer will do nothing to impugn, challenge, or assist in any challenge to the validity of the ACV Marks, any registrations thereof, or the ownership thereof. All rights with respect to the ACV Marks not specifically granted in these ClearCar Terms will be and are hereby reserved to ACV and its licensors.
  • Customer hereby consents to ACV referring to Customer as an ACV customer in ACV’s marketing and promotional materials. ACV may use Customer’s trademarks, including logos, in any such materials so long as ACV complies with any trademark guidelines provided bCustomer hereby consents to ACV referring to Customer as an ACV customer in ACV’s marketing and promotional materials. ACV may use Customer’s trademarks, including logos, in any such materials so long as ACV complies with any trademark guidelines provided by Customer from time to time.  Customer may revoke such consent at any time upon written notice to ACV.y Customer from time to time.  Customer may revoke such consent at any time upon written notice to ACV.

• Representations and Warranties

  • ACV Representations and Warranties. ACV represents and warrants to Customer that all Services performed by ACV shall be performed in a professional and efficient manner, and in providing the Services, ACV will comply with all laws applicable to the delivery thereof.
  • Customer Representations and Warranties. Customer represents, covenants, and warrants that: (i) it will not directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or remove any proprietary notices or labels; (ii) it will not use and will not encourage, promote, facilitate or instruct others to use the Services, ACV’s name and/ or ACV Proprietary Information in an illegal, harmful, or offensive way; (iii) it has all rights in and to the data provided to ACV necessary to grant the rights herein for ACV and its contractors to use as contemplated herein; (iv) all information provided by or on behalf of Customer hereunder will be true, current, accurate and complete in all material respects; and (v) it will comply with all applicable laws, including applicable data privacy laws.
  • Disclaimer of Warranties. With respect to the subject matter of these ClearCar Terms, including without limitation the Services provided hereunder, THE WARRANTIES GRANTED IN THIS SECTION 8 ARE EXCLUSIVE AND ARE OFFERED IN LIEU OF ALL IMPLIED OR STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, TIMELINESS, NON-INFRINGEMENT, PROPRIETY, COMPLETENESS, ACCURACY, AVAILABILITY, SECURITY OR RELIABILITY) OR ANY OTHER EXPRESS OR IMPLIED WARRANTY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ACV OR THROUGH OR LINKED FROM THE ACV PLATFORM SHALL CREATE ANY WARRANTY, EXPRESS OR IMPLIED. THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS AND ACV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION THEREWITH. IN FURTHERANCE OF THE FOREGOING, ACV DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET ANY CUSTOMER OR CONSUMER REQUIREMENTS OR EXPECTATIONS, THAT ANY PARTICULAR RESULTS WILL BE OBTAINED FROM THE SERVICES, OR THAT QUOTES WILL BE ACCURATE, COMPLETE, OR RELIABLE.

• Indemnification; Liability Limitation

  • ACV Indemnity. ACV agrees to defend, indemnify, and hold Customer harmless from any third party claim, demand, or proceeding, and any associated liability, loss, damage, cost, and expense (including reasonable attorneys’ fees), to the extent such claim is based upon: (i) a breach of any representation or warranty made by ACV to Customer; (ii) acts of willful misconduct committed by ACV or its employees in the performance of its obligations hereunder; (iii) failure to discontinue sending text messages after receiving notification of a consumer’s desire to opt-out of receipt of such messages; or (iv) any allegation that the ACV Marks infringe any intellectual property right of a third party.
  • Customer Indemnity. Customer agrees to defend, indemnify, and hold ACV harmless from any third party claim, demand, or proceeding, and any associated liability, loss, damage, cost, and expense (including reasonable attorneys’ fees) to the extent based upon: (i) a breach of any representation or warranty made by Customer to ACV; (ii) acts of willful misconduct committed by Customer or its employees in the performance of its obligations hereunder; (iii) any misrepresentation or omission made by Customer to ACV or any third party in connection with these ClearCar Terms; (iv) failure to discontinue sending text messages after receiving notification of a consumer’s desire to opt-out of receipt of such messages; (v) any allegation that the Customer Marks infringe any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or right of publicity or privacy, or libel, slander, defame or disparage, any third party; (vi) the content included in any message sent through the Communication Services; and (vii) the content of Generated Offers, including any failure of the Generated Offers to contain all necessary disclosures or disclaimers as required by applicable federal and state laws.  
  • Notice of Indemnity Claim. The indemnified Party shall provide prompt written notice to the indemnifying Party of any claim to which the indemnified Party seeks indemnification hereunder (provided, however, that any failure or delay in notice shall not excuse the indemnifying Party of its obligations hereunder, except to the extent it has been damaged thereby), and the indemnifying Party shall assume the defense of any claim for which it is obligated to indemnify the indemnified Party under this Section 9. The Parties shall cooperate reasonably with each other in the defense of any such claim, including making available (under seal if desired, and if allowed) all records reasonably necessary to the defense of such claim, and the indemnified Party shall have the right to participate in the defense of such claim with counsel of its own choosing at its own expense.  The indemnifying Party shall not enter into any settlement of any claim without the prior written consent of the indemnified Party (such consent not to be unreasonably withheld) if indemnified Party’s rights would be directly and materially impaired thereby.
  • Disclaimer of Liabilty.

    1. Except as set forth herein, Customer assumes all risk and liability associated with its use of the Services. ACV shall have no responsibility or liability for and makes no representations or warranties that: (i) information provided through the Services is true, accurate, correct, complete or timely, or (ii) the Services will function without faults, delays or errors. ACV shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted via the Services and shall not be responsible or liable for any decisions made based on such information or any actions or inactions of consumers.

    2. ACV shall have no responsibility or liability for any act or omission of consumers when receiving messages sent through the Communication Services, including a consumer’s response or failure to respond to any text message, or a consumer’s choice to receive or not receive messages. During peak usage, messages may be time-delayed to maintain overall system performance. ACV makes no representation as to the timeliness of delivery of any message sent through the Communication Services. ACV offers the Communication Services, and Customer and consumers receive such services, through third party commercial wireless carriers and companies of wireless connectivity and infrastructure. ACV makes no representation as to the quality of service of these carriers and connectivity companies. ACV is not responsible for any loss of connectivity or connectivity issues between ACV, the Communication Services Customer and/or a consumer’s and a wireless carrier.  If a consumer’s mobile device is not actively connected when ACV sends a message when providing Managed Services, or when Customer sends a message using Messaging Services, the message may be significantly delayed or lost. A consumer’s connectivity speed, data rates, and resolution are determined by its mobile device and wireless services company. Some information and messages may not be properly received due to incompatibilities of equipment or a particular wireless service.
       

  • Limitations. ACV’S AGGREGATE LIABILITY TO CUSTOMER UNDER THESE CLEARCAR TERMS SHALL BE TO REFUND THE FEES ACV RECEIVED FOR THE APPLICABLE SERVICE WITHIN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL ACV BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OF DATA, INFORMATION, AND/OR CONTENT, OR OTHER INDIRECT LOSSES ARISING OUT OF, OR IN CONNECTION WITH THE SERVICES, INCLUDING ALL INFORMATION AND CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO THE ACV PLATFORM OR THE ACV WEBSITE, ANY VEHICLE REFERENCED THEREIN, AND ANY INABILITY BY CUSTOMER TO USE THE SERVICES.

• Miscellaneous

  • Insurance. The Parties shall carry appropriate levels of insurance coverage consistent with their commercially reasonable business practices.
  • No Third-Party Beneficiaries. These ClearCar Terms shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.
  • No Agency. Each Party is performing under these ClearCar Terms as an independent contractor. Nothing in these ClearCar Terms shall be deemed to create any partnership or joint venture.
  • Entire Agreement. These ClearCar Terms (together with any Order Forms) constitute the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they relate in any way to the subject matter hereof. In the event of any contradiction between these ClearCar Terms and an Order Form, the Order Form shall control over these ClearCar Terms.
  • Waiver and Severability. ACV’s failure to enforce a provision is not a waiver of its right to do so at any other time. If a provision is found unenforceable, the remaining provisions of these ClearCar Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible.
  • Changes. ACV reserves the right, in its sole discretion, to modify or replace these ClearCar Terms at any time. Modifications will take effect immediately upon posting of the revised ClearCar Terms. ACV recommends that Customer review the latest version of these ClearCar Terms from time to time.
  • Subcontractors. ACV may provide some or all of the Services through third party subcontractors of its choice; provided it shall be responsible for the acts or omissions of such subcontractors in providing the Services.
  • Attorneys’ Fees and Costs. The prevailing party in any action to enforce these ClearCar Terms will be entitled to recover its attorneys’ fees and costs in connection with such action from the non-prevailing party.
  • Succession and Assignment. These ClearCar Terms shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign either these ClearCar Terms or any of his, her, or its rights, interests, or obligations hereunder without the prior written approval of the other Party, except that ACV may assign these ClearCar Terms to an affiliate or in connection with a merger, acquisition, sale of all or substantially all of its assets, or another similar transaction or set of transactions.
  • Feedback. Any feedback, suggestions, input, comments, or requested enhancements conveyed to ACV by Customer in connection with the Services shall be collectively deemed “Feedback.” Customer agrees to grant and hereby grants to ACV a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Feedback without restriction.
  • Headings. The section headings contained in these ClearCar Terms are inserted for convenience only and shall not affect in any way the meaning or interpretation of these ClearCar Terms.
  • Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform any obligation under these ClearCar Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such Party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, failure or diminishment of power or of telecommunications or data networks or services, changes in applicable laws or regulations, or refusal of approval or license by a government agency.
  • Notices. All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (A) when delivered personally to the recipient, (B) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (C) upon electronic confirmation of receipt when transmitted by facsimile transmission or by electronic mail, or (D) four business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Notices to ACV should be addressed to ACV Auctions Inc., 640 Ellicott Street, Suite 321, Buffalo, NY 14203; Attn: Legal Department; with a copy to: notices@acvauctions.com. Notices to Customer should be addressed as provided in the applicable Order Form.
  • Governing Law. Any and all claims arising out of, relating to or in connection with these ClearCar Terms, shall in all respects and to the maximum extent permitted by applicable law be governed by the law of the State of New York, including all matters of construction, enforcement, validity and performance but excluding all choice of law and conflicts of law rules. Each Party consents to the exclusive jurisdiction of the state and federal courts located in Erie County, New York.