This is a binding legal agreement between ACV Auctions Inc., for itself and its affiliates (“ACV”), and the customer (“Client”) entering into one or more Order Forms to receive some or all of the services described below. ACV and Client are sometimes individually referred to herein as a “Party” and collectively as the “Parties.” These Widget and Managed Services Terms and Conditions (the "WMS Terms and Conditions") are effective as of the effective date specified above, as updated from time to time.
WHEREAS, Client wishes to receive from ACV, and ACV desires to provide to Client, certain products and services as set forth herein;
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 Client agree as follows:
Order Form(s); Services.
The Parties will set forth in one or more order forms (each, an “Order Form”) the services to be provided to Client, including the fees and payment terms therefor, 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 WMS Terms and Conditions.
Services may include one or more of the following offerings and/or such other products and services as the Parties may from time to time set forth in the applicable Order Form (the “Services”):
External Consumer Vehicle Valuation Widget. ACV’s external consumer vehicle valuation trade widget (“External Widget”) is a consumer-facing used-vehicle valuation tool intended for display on dealership web site(s). Consumers accessing the External Widget through the dealer’s site(s) have the ability to input information about their vehicle and express interest in obtaining a quote from the dealership to purchase their vehicle.
Internal Consumer Vehicle Valuation Widget. ACV’s internal consumer vehicle valuation trade widget (“Internal Widget”) is a dealer-facing used-vehicle valuation tool. Authorized users can access the widget through the dealer’s internal computer network and obtain real-time valuations of vehicles of consumers visiting the dealership.
Microsite. ACV’s microsite is a white-labelled website hosted by ACV, which displays the External Widget together with customer branding (the “Microsite”).
Managed Services. ACV provides customer lead generation services in support of a dealer’s efforts to purchase used vehicles from consumers (“Managed Services”). Managed Services include communications (including text messages) with consumers on the dealer’s behalf, lead funnel optimization, and setting up appointments with the dealership for interested consumers.
Use of Widgets. If Client subscribes to receive the External Widget (including the External Widget on the Microsite) and/or Internal Widget (each, a “Valuation Tool”), the provisions below shall apply. Client hereby authorizes ACV to the extent applicable based on the Services being provided (i) to display the Valuation Tool on Client’s consumer-facing and internal-facing web properties (the “Client Site(s)”), (ii) to transmit via API or email to Client’s CRM system the information provided through the Valuation Tool regarding the consumer, the consumer’s vehicle, and the valuation provided (such information, the “Consumer Information”), (iii) to contact Client’s web site and CRM providers to assist with the implementation of the Valuation Tool, and (iv) to contact Client’s IT personnel to assist and answer questions about the implementation and related matters. Client will provide to ACV all information reasonably necessary to assist ACV with its implementation efforts.
Microsite. If Client subscribes to receive the Microsite, the provisions below shall apply.
Other than Client branding, all content and information displayed on the Microsite will be provided by ACV and is considered ACV’s Proprietary Information (as described under Section 8). The domain name registration for a Microsite also is ACV Proprietary Information. Exclusive of Client branding, only ACV has the right to modify the content and information displayed on the Microsite in ACV’s sole discretion.
Managed Services. If Client subscribes to receive the Managed Services, the provisions below shall apply.
Consumer leads can be obtained either through the External Widget (including the External Widget on the Microsite) when consumers consent to be contacted through the tool’s opt-in process (“Widget Leads”) or directly by Client (“Client Leads”, and together with Widget Leads, “Consumer Leads”).
Client shall require and ensure that all Client 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), and (ii) allows any information provided by such lead to Client (including any personally identifiable information) to be lawfully shared with ACV, its agents, contractors, and suppliers for the purposes contemplated by these WMS Terms and Conditions. Such consent shall have been obtained prior to submission of any Client Lead to ACV without any prior revocation. With respect to all Consumer Leads, Client 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 Client agrees to transmit any Do Not Call requests submitted by Consumer Leads to ACV in a timely manner.
ACV will earn a fee as set forth in the applicable Order Form for each appointment scheduled by the Managed Services Team with a Consumer Lead to visit the dealership of Client or a Participating Dealership regardless of whether the appointment actually takes place (“Qualifying Appointment”).
Additional Terms Regarding the Services.
Client 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. Client agrees to respond promptly to all ACV requests for required information and materials.
Client will require all Client personnel who will be using or receiving Services to participate in training sessions provided under the applicable Order Form.
Client has sole responsibility for maintaining the security and confidentiality of user credentials and passwords issued to Client and its users (“User Credentials”). Client only will provide User Credentials to Client’s employees who require access to the applicable Services (“Authorized Users”). Client 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. Client 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.
Client 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. Client 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. Client shall maintain the integrity and security of its equipment (physical, electronic and otherwise) and account passwords.
If Client desires to make the Services available to any dealership within Client’s network (“Participating Dealers”), it may only do so if it identifies the Participating Dealer on the applicable Order Form and provides to ACV all information and materials reasonably requested by ACV to enable access to the Services to Participating Dealers. Client shall ensure that all Participating Dealers are in compliance with Client’s obligations under these WMS Terms and Conditions and shall be responsible and liable for the acts or omissions of Participating Dealers.
ACV reserves the right without liability to suspend or terminate Client’s (including any Participating Dealer’s) access to some or all of the Services 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 Client in advance of any such suspension or termination.
The Services are provided solely to Client for its internal business use and no other purpose. Client shall not provide access to the Services to any third party other than Participating Dealers 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. Client 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. Client may not use or disclose the valuation provided through the 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 Client’s business so long as it does so in accordance with Section 4(b) and otherwise in accordance with all applicable laws.
Except as otherwise provided in these WMS Terms and Conditions, all payments from Client 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 Client, 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 WMS Terms and Conditions or cease providing Services if Client fails to pay any invoice within thirty (30) days after the Client receives notice from ACV that it has failed to pay an invoice and such invoice is not in dispute. Client 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 Client agrees to bear and be responsible for the payment of all such charges.
Term and Termination.
These WMS Terms and Conditions, 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 WMS Terms and Conditions and all outstanding Order Forms if the other Party is in material breach of these WMS Terms and Conditions, 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 Client of Sections 4(b), 5(h), 8 and 10(b).
Confidentiality and Ownership of Information.
ACV’s Proprietary Information. Client 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 WMS Terms and Conditions, and Client 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 WMS Terms and Conditions or the Services provided hereunder. Neither Party may disclose the other Party's Confidential Information and Client may not disclose the ACV Proprietary Information to any third party, or use it for any purpose unrelated to these WMS Terms and Conditions 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 WMS Terms and Conditions 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.
Client owns all of its customer data that is attributable to Client’s dealership(s). Client agrees on a monthly basis to disclose to ACV purchase data regarding vehicles sold by consumers to Client as a result of the Services. ACV will not sell such data to any third party. However, ACV shall have the right to use such data for internal purposes, and may use such data in an aggregated form in furtherance of ACV’s products and services, provided such data is not attributable to or identifiable as Client’s data. ACV may also use data that is publicly available, including data client displays on its websites, for any purpose and without limitation.
In connection with ACV’s performance of Services under these WMS Terms and Conditions, the Parties agree to the data privacy terms below (“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, in which case, ACV will post any updates to the Data Privacy Terms at https://www.acvauctions.com/data-processing-terms. Such updated Data Privacy Terms will become binding on the Parties when posted. Client agrees to periodically consult the aforementioned site for the purpose of receiving such updates.
Client hereby grants to ACV a non-exclusive, revocable, royalty-free, worldwide license to use, copy, display, and distribute Client’s logo, trade name and any other trademarks owned or licensed by Client (the “Client Marks”) solely as necessary for ACV to provide the Services as contemplated by these WMS Terms and Conditions. ACV will do nothing inconsistent with the ownership of the Client Marks and related goodwill, and all use of or references to the Client Marks will inure to the benefit of Client and its licensors. ACV will do nothing to impugn, challenge, or assist in any challenge to the validity of the Client Marks, any registrations thereof, or the ownership thereof. All rights with respect to the Client Marks not specifically granted in these WMS Terms and Conditions will be and are hereby reserved to Client 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 Drivably” or “Powered by ACV”).
Depending on the nature of the Services, Client may be given a non-exclusive, non-sublicensable, revocable and non-transferable license to use ACV’s trademarks, including DRIVABLY, 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, Client 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 Client. Client 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. Client 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 WMS Terms and Conditions will be and are hereby reserved to ACV and its licensors.
ACV Marketing. Client hereby consents to ACV referring to Client as an ACV customer in ACV’s marketing and promotional materials. ACV may use Client’s trademarks, including logos, in any such materials so long as ACV complies with any trademark guidelines provided by Client from time to time. Client may revoke such consent at any time upon written notice to ACV.
Representations and Warranties.
ACV Representations and Warranties: ACV represents and warrants to Client 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.
Client Representations and Warranties: Client 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 Client 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 WMS Terms and Conditions, including without limitation the Services provided hereunder, the warranties granted in this Section 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 CLIENT 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 Client 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 Client; (ii) acts of willful misconduct committed by ACV or its employees in the performance of its obligations hereunder, or (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.
Client Indemnity. Client 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 Client to ACV; (ii) acts of willful misconduct committed by Client or its employees in the performance of its obligations hereunder; (iii) any misrepresentation or omission made by Client to ACV or any third party in connection with these WMS Terms and Conditions; (iv) failure to discontinue sending text messages after receiving notification of a consumer’s desire to opt-out of receipt of such messages; and (v) any allegation that the Client 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.
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. 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 liability. Client assumes all risk and liability associated with its use of the Services and any information provided by a consumer. ACV shall have no responsibility or liability for and makes no representations or warranties that: (i) information provided by a consumer is true, accurate, correct, complete or timely, or (ii) the Services will function without faults, delays or errors. ACV shall have no responsibility or liability for any act or omission, including any response or failure to respond to any text message, any response to a 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. ACV offers the 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: (A) any loss of connectivity between Client and a wireless carrier, (B) any loss of connectivity between Client and a consumer’s wireless carrier, (C) any loss of connectivity between Client’s wireless carrier and ACV’s Internet server, and (D) any loss of connectivity between Client’s or a consumer’s wireless services and the Services. If a consumer’s mobile device is not actively connected when ACV sends a message, 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. ACV makes no representation as to the accuracy or completeness of any message. 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.
Limitation. ACV’S AGGREGATE LIABILITY TO CLIENT UNDER THESE WMS TERMS AND CONDITIONS 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 CLIENT TO USE THE SERVICES.
Insurance. The Parties shall carry appropriate levels of insurance coverage consistent with their commercially reasonable business practices.
No Third-Party Beneficiaries. These WMS Terms and Conditions 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 WMS Terms and Conditions as an independent contractor. Nothing in these WMS Terms and Conditions shall be deemed to create any partnership or joint venture.
Entire Agreement. These WMS Terms and Conditions (together with any Order Forms) constitutes 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 WMS Terms and Conditions and an Order Form, the Order Form shall control over these WMS Terms and Conditions.
Changes. ACV reserves the right, in its sole discretion, to modify or replace these WMS Terms and Conditions at any time. Modifications will take effect immediately upon posting of the revised WMS Terms and Conditions. ACV recommends that Client reviews the latest version of these WMS Terms and Conditions 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 WMS Terms and Conditions will be entitled to recover its attorneys’ fees and costs in connection with such action from the non-prevailing party.
Succession and Assignment. These WMS Terms and Conditions 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 WMS Terms and Conditions 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 WMS Terms and Conditions 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 Client in connection with the Services shall be collectively deemed “Feedback.” Client 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 WMS Terms and Conditions are inserted for convenience only and shall not affect in any way the meaning or interpretation of these WMS Terms and Conditions.
Force Majeure Neither Party shall be liable to the other for any delay or failure to perform any obligation under these WMS Terms and Conditions (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: firstname.lastname@example.org. Notices to Client 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 WMS Terms and Conditions, 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.