MOBIDRIVES DEALER SERVICE AGREEMENT
By purchasing products and services through this website dealer hereby agrees to the following terms and conditions:
- Scope of Services
1.1 Definitions.
1.1.1 Product: For the purposes of and as used in this Agreement, “Product” shall refer to the smartphone applications, text marketing packages, QR codes and mobile websites developed by MobiDrives on behalf of Dealer. There are several versions of the Products which vary in features and capabilities.
1.1.2 MobiDrives Dealer Portal: For the purposes of and as used in this Agreement, “MobiDrives Dealer Portal” shall refer to the access point through which the Dealer sends and receives communications and has access to Product analytics and reporting data (Apps & Text marketing only).
1.1.3 Dealership Location: For the purposes of and as used in this Agreement “Dealership Location” shall refer to each physical location or ‘rooftop’ regardless of the number of brands or line makes of vehicles sold.
1.2 Development of Product. MobiDrives will design and develop Product based on Dealer’s logos, products, Dealership Location, and offerings, and any other material provided by the Dealer. MobiDrives will make Product available for download by Dealer’s customers.
1.3 MobiDrives will build smartphone Product in support of iPhone and Android platforms for each particular Dealership Location included in this agreement. There are three versions of smartphone Product: MobiDrivesLTE, MobiDrives+, and MobiDrivesPRO. The smartphone Product shall include the following functions:
MobiDrivesLTE
1.3.1 Dealership information (Dealership Location, directions, contact etc.);
1.3.2 Display of new and used vehicle inventory via link to dealer mobile website;
1.3.3 Service request form or link to 3rd party service scheduling mobile website
1.3.4 Display of specials and promotions for sales and service;
1.3.5 Dealer dashboard with robust reporting, ROI analysis, and export
1.3.6 Vehicle trade in tool
1.3.7 Car buyer calculator
1.3.8 Towing and Roadside Assistance Help
1.3.9 Safe Driving Tips
1.3.10 Social media integration (Facebook, Twitter, YouTube etc)
1.3.11 Parking Pal
1.3.12 Meter Minder
MobiDrives+ – MobiDrivesLTE Plus:
1.3.13 Display of new and used vehicle inventory (filter, compare, save, share) via inventory feed
MobiDrivesPRO – MobiDrives+ Plus:
1.3.14 Full DMS integration. Provides up to 3 years of service history for up to 10 cars
1.3.15 Messaging capabilities between users and dealer service representatives
1.3.16 Text marketing campaign management
1.4 MobiDrives will provide each Dealership Location included in this Agreement access to the MobiDrives Dealer Portal, which will provide the following functions:
1.4.1 Functionality to send or manage TEXT communications between 1-to-1 or 1-to-many registered users including instant service specials. Fully CAN-SPAM and TCPA compliant. (PRO only)
1.4.2 MobiDrives reporting dashboard that includes: App downloads, App leads, App access statistics, App usage statistics, Click-2-Call reports, Email reports, Mobile ID reports, Dealer inventory reports, and CSV export (smartphone apps only);
1.5 MobiDrives will provide the following support and maintenance services as part of this
Agreement to each Dealership Location included in this Agreement:
1.5.1 Marketing collateral support (for an additional fee)
1.5.1 Helpline support by phone and e-mail
1.5.2 Maintenance and updates for all components for the system, software, communications components, and database components.
1.5.3 Training for employees
1.6 In the event that MobiDrives provides integration to a dealer’s existing DMS system for service information (PRO only), any such integration will be limited to the integration of such information made available by Dealer. If integration is not available for some or all data components, Dealer understands that it may be required to input all necessary information manually in order to utilize the functionality of the MobiDrives Product.
1.7 Dealer agrees to provide a unique username and password for MobiDrives into the Dealer’s DMS system and provide the necessary information for access to 3rd party vehicle inventory providers.
- Pricing and Payments
2.1 Dealer shall pay to MobiDrives all invoiced amounts for accepted services rendered by MobiDrives in accordance with this Agreement on a per Dealership Location as disclosed by the Dealership at the commencement of this Agreement. MobiDrives reserves the right to increase the charges under the terms of this Agreement and to increase the same proportionately for any additional Dealership Locations, which were not initially included in the Agreement. Payment for initial set up and installation, shall be due upon the execution of this Agreement and monthly charges (including any pro-rated charges for any partial month of service) to MobiDrives shall be due and payable once the application is posted to either the Apple App Store or Android Marketplace. Dealer shall have the choice of ACH or credit card billing. ACH subscription payments shall be processed the following month on the 5th, 12th, 19th, or 26th based upon the date the completed app was delivered. Credit card subscriptions payments shall be processed the following month on the day the app went live.
2.2 If dealer requests face to face training, MobiDrives will provide training for dealer staff for 1 full day per dealership and charge the dealer five hundred dollars ($500) plus travel costs to include airfare, Per Diem for meals, hotel and rental car expenses. All amounts payable to MobiDrives under this agreement are net amounts payable and exclusive of all existing taxes and new taxes which shall be the responsibility of the Dealer, regardless of who is responsible to collect such taxes.
2.3 Once payment has been received, MobiDrives will generate an electronic receipt for services. Failure of the Dealer to make payment to MobiDrives of any fees required to be paid by Dealer on a timely basis shall be considered an event of default. Such amounts will include an enrollment fee, and a monthly subscription fee for each Dealership Location as outlined on Exhibit “A”. Exhibit “B” attached hereto shall describe the Dealership Locations for which the services described in this Agreement shall be rendered. Should Dealership wish to add additional Dealership Locations to those listed in Exhibit “B”, then the parties shall agree to identify same and attach same to this Agreement as a new Exhibit “C” which shall incorporate, by reference, all of the terms contained herein as applying to such additional Dealership Locations.
- Contract period and cancellation
3.1 This Agreement shall commence on the Effective Date and, unless sooner terminated as provided in this Agreement, shall remain in full force and effect for a term of 1 year (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive 1-year terms (each, a “Renewal Term”), provided, however, the Dealer may terminate this agreement at anytime with a 60 day written notice to MobiDrives. Notwithstanding the foregoing, MobiDrives may immediately terminate this Agreement should any of the following events occur, each of which shall be considered to be an event of default:
3.1.1 If the Dealer becomes delinquent in payment of any fees called for under the terms of this Agreement, MobiDrives shall have the right to immediately cancel Dealer’s service subject to the terms contained in this subsection. Should such an event of default occur, then MobiDrives will provide the Dealer with an opportunity to cure said default by providing it with 10 days written notice from the date of delinquency of its default and right to cure. Such cure notice shall be deemed to be given when mailed, emailed and/or faxed and shall contain the amounts past due and notify the Dealer of date by which it will be required to cure its monetary default. Should the Dealer fail to cure its default within said notice period this Agreement shall be deemed terminated without any further action being required by MobiDrives and all monies due to the date of said default shall be immediately due and payable. Dealer shall be entitled to such cure notice only once during any six month period.
- Ownership and Right to Use of Trademark Property
4.1 Dealer hereby grants to MobiDrives a limited license to use any trademarks or logos submitted from Dealer as part of their Product promotion in relation to services provided by MobiDrives. Dealer understands and acknowledges that this limited license shall entitle MobiDrives to use the Dealer logo and/or trademark on all portal and Products utilized in conjunction with the services provided in this Agreement. When using such logos or trademarks, MobiDrives will reproduce same as submitted by the Dealer. Dealer agrees to allow MobiDrives to use the Dealers name and/or logo on MobiDrives website and/or in MobiDrives advertising and media communication.
4.2 MobiDrives acknowledges that the Dealer is the owner of all rights of whatever nature in the trademarks and that it has no claim of whatever nature in and to such trademarks.
- Copyright and Confidential Information
5.1 Dealer acknowledges and agrees that, as between Dealer and MobiDrives, any software module developed by MobiDrives as part of this Program and used by Dealer on the portal or mobile device channels shall remain the exclusive property of MobiDrives and that MobiDrives will retain all right, title and interest thereto during the term of this Agreement and thereafter. Copyright to all of the source code, object code, documentation, and any MobiDrives software components belong to and shall remain with MobiDrives. Except for the rights expressly granted herein, MobiDrives shall retain full title and interest in and to MobiDrives intellectual property and all intellectual property embodied therein or used thereby. Dealer also acknowledges that the services listed above are licensed “as is” without warranty of any kind including but not limited to any warranty of merchantability, performance, fitness for a particular purpose or non-infringement of intellectual property. Dealer warrants and represents that it will not transmit, route or supply MobiDrives any content that infringes any copyright, trade secret, or other intellectual property right, contains any libelous, defamatory, or obscene material, or otherwise violates any laws or regulations relating to content or content distribution. Dealer also hereby appoints MobiDrives as its Agency of Record solely with respect to marketing initiatives set forth in this Agreement (“AOR”). The parties agree and acknowledge that the sole purpose of the appointment of MobiDrives as AOR is to allow it to act, as agent of the Dealer to modify and/or utilize source material to the same extent that Dealer would be permitted to do so. Any services not expressly listed in the Agreement are outside of the scope of AOR’s duties. The Dealer grants AOR a non-exclusive, royalty-free license to use, reproduce, re-use, alter, modify, edit, repurpose or change any and all video or photographic materials provided to MobiDrives in connection with this Agreement (hereinafter, “Dealer Content”) including manufacturer video footage made available to the Dealer. .
6. DISCLAIMER OF WARRANTIES
6.1 OTHER THAN AS SET FORTH HEREINABOVE, MOBIDRIVES ALONG WITH ITS AFFILIATES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, DISCLAIMS ALL WARRANTIES AND OF MERCHANTABILITY, QUALITY, ACCURACY, AND FITNESS FOR CLIENT’S PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES DESCRIBED HEREIN.
7. LIMITATION OF LIABILITY
7.1 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, MOBIDRIVES WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, MOBIDRIVES WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY FAILURE, OUTAGE, OR OTHER CIRCUMSTANCES THAT MAY IMPEDED THE OPERATION OF THE PRODUCT WHICH IS THE SUBJECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL MOBIDRIVES TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY CLIENT UNDER THIS AGREEMENT DURING THE ONE MONTH PRECEDING THE DATE OF THE CLAIM FOR DAMAGES; THIS LIMITATION SHALL NOT APPLY TO ACTUAL DAMAGES TO CLIENT ARISING AS A RESULT OF THE NEGLIGENCE, GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT OF MOBIDRIVES IN THE PERFORMANCE OF THIS AGREEMENT. EACH OF THESE LIMITATIONS WILL APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION FOR LIMITATION OF LIABLITY FOR CONSEQUENTIAL OR INCIDENTIAL DAMAGES, THIS LIMITATION MAY NOT APPLY TO CLIENT.
8. Indemnification
8.1 Dealer shall defend, indemnify and hold MobiDrives harmless from and against all suits, claims and damages (including but not limited to reasonable attorney’s fees) incurred as a result of claims of Dealers or other third parties claim against either party arising from or by operation of its negligent conduct in the implementation and operation of the services in this Agreement and/or non compliance with any applicable law, whether or not described in this Agreement.
9. General
9.1 This Agreement shall be contingent upon approval of Dealer’s credit, consistent with MobiDrives policies. The Dealership warrants and represents that the party signing on its behalf has the actual and apparent authority to bind the Dealership to the terms of this Agreement. The prevailing party in any dispute concerning the subject matter hereof shall be entitled to recover its reasonable attorneys’ fees and costs. This Agreement represents the entire agreement of the parties with respect to the specified subject matter hereof. This Agreement may be amended or modified by, and shall only be effective with, the mutual consent of Client and whose calling. Neither Dealer nor MobiDrives will not be liable for, or be considered to be in breach of or default under this Agreement, on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond their reasonable control. The undersigned agree this Agreement may be executed via facsimile and in counterparts, all of which taken together shall constitute one binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns. Dealer may not assign this Agreement without the prior written consent of MobiDrives. Dealer shall be required to comply with all applicable laws including, but not limited to, compliance with “do not call” regulations as well as compliance with all privacy requirements set forth in the rule sand regulations contained Gramm Leach Bliley as well as the FTC Guidelines for Safeguarding Dealer Information as well as applicable FTC Red Flag Rules. Dealer shall also be responsible to pay all Federal, local and state taxes applicable to its operations and activities undertaken in connection with this Agreement. This Agreement will be construed and enforced in accordance with the laws of the State of Florida. In the event of any controversy or claim arising out of or relating to this Agreement, or its breach or interpretation, the parties shall submit to the exclusive jurisdiction of and venue in Broward County, Florida. All warranties, representations made by the Dealer and/or any obligations and/or responsibilities undertaken by the Dealer shall survive the execution of this Agreement.
10. 3rd Party Advertising
10.1 MobiDrives reserves the right to incorporate 3rd party mobile advertising or mobile ad network advertising in the MobiDrivesLTE and MobiDrives+ product at any time. MobiDrives will ensure that all advertising meets generally acceptable standards of morally high quality advertising that is appropriate for the audience.
10.2 MobiDrives warrants that it will not integrate 3rd party mobile advertising in the MobiDrivesPRO product.
