1. YOUR AGREEMENT
2. USE OF THE AUCTION ACCESS SYSTEM
Membership Eligibility. Only licensed dealers and other individuals or businesses that have been approved by us and their authorized representatives are eligible to use the AuctionACCESS System.
Registration/Credentialing and Authorization to Share Information. To use the AuctionACCESS System, you must be credentialed after completing a registration application form, providing other information as requested, and paying the annual fee. You will provide true, accurate, current, and complete information about yourself during the credentialing process and will promptly update this information whenever it changes. Failure to do any of the foregoing, including reversing any payment of the fee, will result in termination of your privileges, You authorize us to pull and share, as we deem appropriate, credit reports for your dealership, as well as consumer reports (including credit scores) for you and your dealership’s owners, principals, and other designated representatives. You authorize us to periodically verify, at our discretion, bank information that you provide to us and to share the results with our Customers. This verification may include electronically confirming a routing or bank number, account holder, account status, return activity, etc. and may also include manually contacting your bank to confirm such information. You understand that we and our customers that subscribe to the AuctionACCESS System, including our affiliate Auction Insurance Agency (collectively “Customers”) will obtain, store, use and share among ourselves the information you provide or that is otherwise gathered by us in regards to you or your account, including consumer reports, financial and credit information. You understand that we may not verify this information and will disclose the information on an “as is” basis, and we will not be liable for any errors or omissions in the information. You also understand that Customers are not limited to businesses engaged in the automobile dealer or auction industries, but may also include other businesses providing goods or services to these industries. You release us and our Customers, as well as representatives of the foregoing, from any and all claims, demands, damages, or expenses arising out of our collection, storage, dissemination, sharing, disclosure or use of the information you provide to us or that is otherwise gathered by us in regards to you or your account. We reserve the right to deny or revoke membership in the AuctionACCESS System to any person or entity in our sole discretion.
Card, ID Number, Password, and Account. Subject to our continuing discretion, we issue a company ID number to each company authorized to use the AuctionACCESS System and a personal ID number, card, and/or mobile card to each individual authorized by you (i.e. a company) to use the System and transact on your account. These ID numbers are our trade secrets, and neither you nor your representatives may disclose them to anyone other than Customers with whom you are registered. You alone are authorized to use your AuctionACCESS card, mobile card and ID numbers and agree not to allow anyone else to use them. You are responsible for maintaining the security of your card and the confidentiality of your ID numbers, username, and password, and are fully responsible for all activities that occur in your account or under your membership. If you provide your card, mobile card, ID numbers, username, or password to any unauthorized person, we may suspend or terminate your membership privileges. You agree to immediately notify us of any unauthorized use of your card, ID numbers, username, or password, or any other breach of security. You may not trade, sell, or otherwise transfer your membership or any membership privileges to another party by any means, including online auctions or forums. Neither we nor our Customers are liable for any loss or damage arising from your failure to comply with this section.
Dealer Authorization/Removal of an Individual. You may authorize and register an individual to represent you in various capacities by printing and completing the Dealership Authorization of an Individual (“DAI” or “authorization”) form on our website, or through AuctionACCESS.com, AuctionACCESS Direct, or AuctionACCESS Mobile. Upon our receipt and approval of an authorization, you acknowledge and agree to the following:
- The capacities in which you authorize an individual representative apply to dealings with us and with all Customers where you are registered to do business, subject to each Customer’s right to reject that authorization at any time for any reason.
- Once the annual fee is paid with good funds, the authorization will be valid until you provide written notice of termination as set forth below; and even then, will continue to apply to all transactions conducted prior to termination.
- The most recent authorization accepted by us will replace any prior authorization(s) for that individual from the date of most recent authorization forward. If an authorized individual is designated to the capacity of “Representative,” “Owner,” or “Officer/Manager” you agree that the individual may buy and sell automobiles for you (including placing purchases on any floorplan financing program you may have) and execute company checks, drafts, certificates of title, and any other necessary instruments or documents on your behalf at/with any Customer, including those where you are registered to do business. You guarantee performance of all obligations incurred by such an authorized individual under the DAI. This guaranty includes but is not limited to losses from dishonored checks or drafts, defective titles, and false or inaccurate Odometer Mileage Statements.
- You will indemnify and hold harmless Customers, AuctionACCESS, LLC and its affiliates, and the officers, directors, employees, and agents of each, against any liability, loss, damages (including punitive damages), claim, settlement payment, cost, expense, award, judgment, fee, or other charge, including reasonable attorneys’ fees, arising out of or relating to the authorized Individual’s actions, as well as any expense incurred in attempting to collect such losses, including attorney fees.
The AuctionACCESS System is open only to licensed dealers. You may authorize and register only those individuals who are bona fide employees or contractors with your dealership. You agree that, upon request, you will provide IRS forms W—2 or 1099 to substantiate that any such authorized individual representatives are indeed bona fide employees or contractors. Retail buyers or others not genuinely affiliated with your dealership are not eligible to use the System. By submitting an authorization for an individual, you also certify that the individual is genuinely affiliated with your dealership and is eligible to use the System. We reserve the right to immediately terminate any authorization obtained for ineligible persons. We also reserve the right to terminate your AuctionACCESS membership or condition reinstatement of your membership on payment of an administrative penalty if we determine you authorized a person who is not eligible to use the System.
You may terminate an authorization only by printing and completing the Dealership Removal of an Individual (“DRI” or “removal”) form on our website, or through AuctionACCESS Direct, or AuctionACCESS Mobile. Such removal will be effective within one (1) business day following our receipt and processing of the DRL.
Compliance with Law. You agree to comply with all laws, regulations, and rules that apply to your use of the AuctionACCESS System and/or the Customer privileges it accords you and the information contained in the AuctionACCESS System wherever you are located.
Compliance with Privacy Law. Without limiting the generality of the foregoing, you agree to ensure that your collection, use and sharing of any personal information that you collect from – or provide to -- the AuctionACCESS System complies with applicable laws governing the privacy, security or confidentiality of personal information or direct marketing (“Privacy Laws”) and that you have given all such notices to, and obtained all such consents from, any individuals as may be required by Privacy Laws for such collection, use and sharing.
Compliance with Customer Policies. You agree to comply with all Customer policies, procedures, terms, and conditions and to conduct your business with our Customers in a fair and ethical manner. You recognize the AuctionACCESS System and access to our Customers is a privilege and not a right, and that we may communicate with any of our Customers in terminating, suspending, or otherwise reviewing that privilege.
3. DISCLAIMER OF WARRANTIES
Your use of the AuctionACCESS System, including any reliance upon any information in the System, is at your sole risk. You assume all risk and liability arising from your use of the System, including the risk of breach in the security of the communications or transactions you conduct with us or our Customers. We disclaim any responsibility or liability for the accuracy, completeness, reliability, or availability of information accessible through the System.
THE AUCTIONACCESS SYSTEM IS “AS IS” WITHOUT WARRANTY OF ANY KIND. WE MAKE NO WARRANTY AS TO THE USE OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE AUCTIONACCESS SYSTEM NOT EXPRESSLY STATED IN THIS AGREEMENT, AND DO NOT WARRANT THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE. NO OTHER WARRANTY IS EXPRESSED AND NONE WILL BE IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
NEITHER WE NOR OUR CUSTOMERS WILL BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO USE OF THE AUCTIONACCESS SYSTEM OR TO THIS AGREEMENT REGARDLESS OF THE FORUM OR FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, WHETHER BASED ON TORT OR BREACH OF CONTRACT CLAIMS, OR ON ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Your AuctionACCESS membership will continue until terminated by either you or by us. You may terminate that membership at any time by submitting a written termination letter to us, which will be effective the business day following our receipt and acceptance; provided that you will remain responsible for any transactions conducted on your account prior to confirmed receipt and acceptance of your termination by us. We may, with or without cause, immediately terminate your AuctionACCESS membership and access to the AuctionACCESS System without prior notice. Without limiting the foregoing, we may terminate your membership for any of the following: (a) breach or violation of this Agreement or any other incorporated agreement or guideline, (b) request by law enforcement or other government or judicial authority, (c) request by you to terminate your membership, (d) unexpected technical issue or problem, (e) your failure to renew your membership timely; or (f) your failure to follow policies or procedures of Customers or other complaints from Customers about you. Termination of your AuctionACCESS membership means you will no longer have access to the AuctionACCESS System. We will not be liable to you or any third-party for termination of your account or access to the AuctionACCESS System. Any section of this Agreement that might reasonably be deemed to survive termination will survive termination of this Agreement.
6. SAFETY AND ASSUMPTION OF RISK
Our Customers operate auto auctions and other facilities that are busy with many vehicles and people moving around their private premises at all times, particularly during sales events. You agree to obey all signs posted by our Customers at their facilities and to follow the instructions of our Customers’ personnel, particularly as they relate to safety and security issues. You also agree to use extreme care while on ours or any Customer’s premises to avoid injury to yourself and others, both in moving vehicles on and off of the premises and in traversing any sale lanes, parking lots, and offices on foot or otherwise. By entering ours or our Customers’ private premises, you assume the risk of injury and will indemnify and defend us, our Customers, and our respective personnel, under section 7 below, for any injuries you or your agents suffer or cause.
You will indemnify and defend us, our corporate affiliates, our Customers, and the officers, directors, employees, and agents of each against any third-party liability, loss, damages (including punitive damages), claim, settlement payment, cost, expense, award, judgment, fee, or other charge, including reasonable attorneys’ fees, arising out of or relating to (i) your failure to comply with this Agreement; (2) the inaccuracy of any information you provide to us, including information you provide during the credentialing process; (3) your use of the AuctionACCESS System; and (4) your failure to follow the policies and procedures of our Customers.
The trademarks, logos, service marks, and trade names (“Trademarks”) displayed in the AuctionACCESS System or on material available through the System are registered or unregistered Trademarks of AutoTec and others and may not be used unless authorized by the trademark owner. All Trademarks not owned by us that appear in the AuctionACCESS System or on material available through System, if any, are the property of their respective owners. Your AuctionACCESS membership may not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in the AuctionACCESS System or on material available through the System without our written permission or that of the third party owner. We will aggressively enforce our Trademark rights to the fullest extent of the law, including the seeking of criminal prosecution. We may suspend or terminate your membership privileges for your breach of this (or any other) section.
9. MEDIATION; ARBITRATION; CLASS ACTION AND JURY TRIAL WAIVER; LIMITATION OF ACTION
A. Except where the dispute concerns the ownership or infringement of trademarks, patents or other intellectual property, any controversy or claim, whether based on contract, tort, strict liability, misrepresentation, or any other legal theory, arising out of or related to this Agreement that cannot be settled by good faith negotiations between the parties, shall if possible be resolved through mediation, and if no agreement can be reached, will be finally settled by arbitration as described in this Section 9. A party asserting a dispute shall initiate the dispute by serving a written demand on the opposing party that succinctly describes the relevant facts, the legal basis for its claim and its requested relief (a “Demand”). The Parties agree that the after a Demand is served they shall subject the dispute to mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures and that they will conduct themselves in good faith in attempting to resolve the dispute in that manner. Any party serving a Demand shall also serve a copy of that Demand, and a request for mediation, with the AAA. If the parties do not fully resolve their dispute within 45 days after the services of the Demand, any remaining issues in dispute shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules conducted by a sole arbitrator knowledgeable in commercial matters. The arbitrator’s award will be final and binding and judgement on the award may be entered in any court of competent jurisdiction. The arbitrator will not have the authority to modify or expand any of the provisions of this Agreement. The locale or place of the mediation and any arbitration will be Birmingham, Alabama, USA. The parties waive any argument that holding proceedings in Birmingham will impose undue hardship or materially affect their ability to present their case. Each party will (i) bear its own attorney fees associated with the mediation, and (ii) pay all other costs and expenses of the mediation in accordance with the relevant AAA rules. The prevailing party in any arbitration, or court proceeding related to the arbitration, shall be entitled to an award of its reasonable costs including legal fees, administrative fees, and the fees of the arbitrator, from the losing party.
B. All mediation and arbitration proceedings shall be private and confidential unless disclosure is required by a legal duty, to protect a legal right, or by a court order. Any award shall be confidential, except as may otherwise be required in legal proceedings to enforce the award. The parties agree that the confidentiality provisions of his section shall be enforceable by injunctive relief, including a temporary restraining order, and waive any security or the posting of a bond as a requirement for obtaining such relief.
C. The arbitrator shall issue a reasoned award within 150 days of the arbitrator’s appointment unless the arbitrator makes a written finding that additional time is required to ensure that one or more of the parties has a fair opportunity to present its case, by exceptional and unforeseen circumstances, or by the need to replace the prior arbitrator. The arbitrator will give effect to the parties’ agreed statutes of limitation set out in sub-section F below in determining any claim and shall dismiss the claim if it is barred by the statutes of limitation.
D. Any arbitration (or court trial (whether before a judge or jury) should the arbitration clause be invalidated for any reason) will take place only on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). THE PARTIES AGREE AND ACKNOWLEDGE THAT THE CLASS ACTION WAIVER PRECLUDES THE PARTIES FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION AGAINST EACH OTHER WITH RESPECT TO ANY CLAIM. If the Class Action Waiver is limited, voided or found unenforceable in connection with any particular claim for relief submitted to arbitration, then, subject to the parties’ right to appeal the limitation or invalidation of the Class Action Waiver, that claim for relief and only that claim for relief shall be severed from the arbitration and brought exclusively into the federal courts sitting in the Northern District of Alabama or, failing federal subject matter jurisdiction, into any state court of the State of Alabama sitting in Birmingham Alabama with jurisdiction. All other claims shall be arbitrated. The parties agree that any claims for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all claims between the parties remaining in arbitration are finally resolved. The parties agree to submit to the personal jurisdiction of the federal and state courts of Alabama for purposes of resolving any claims for relief that are severed from an arbitration in accordance with this paragraph and waive any argument that holding proceedings in the state or federal courts in Alabama will impose undue hardship or materially affect their ability to present their case. THE PARTIES ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL A CLASS ACTION BE ARBITRATED.
E. THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY AS PERMITTED BY LAW WITH RESPECT TO ANY CLAIM. THIS WAIVER OF JURY TRIAL SHALL REMAIN IN EFFECT EVEN IF THE CLASS ACTION WAIVER IS LIMITED, VOIDED OR FOUND UNENFORCEABLE. THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY LAW.
F. No action or proceeding shall lie or be maintained by either party unless initiated within one year of its accrual, regardless of otherwise applicable statutes of limitation.
G. Notwithstanding anything to the contrary in this Agreement, if we make any future material changes to the provisions of this Agreement that govern the arbitration and resolution of disputes between the parties, we will notify you by posting the amended Agreement on www.auctionaccess.com and/or by postal mail or email at least 30 days before the effective date of the amendments and you may reject such changes by sending us a timely written notice of your rejection decision addressed to President, AuctionACCESS, LLC, 2200 Woodcrest Place, Suite 200, Birmingham, AL 35209 prior to their effective date. If you do not timely reject such amendments in accordance with the preceding sentence, you will be bound the amendments.
Choice of Law. The laws of the State of Alabama, excluding any choice-of-law principles and the statutes of limitations (which the parties have agreed do not apply in favor of the limitations periods defined in Section 9F, above), govern this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement. Other than as set out above in section 9, the parties to this Agreement consent to the exclusive jurisdiction of federal courts sitting in the Northern District of Alabama or, failing federal subject matter jurisdiction, any state court of the State of Alabama sitting in Birmingham, Alabama with jurisdiction and waive any argument that proceedings in such courts will impose undue hardship or materially affect their ability to present their case.
Assignment and Delegation. You may not assign any of your rights under this Agreement. All assignments in violation of this section are prohibited, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. Any purported assignment of rights or delegation of performance in violation of this section is void. We may freely assign or delegate all our rights and obligations under this Agreement without notice.
Merger. This Agreement, as defined above in section 1, constitutes the final agreement between you and us. It is the complete and exclusive expression of the agreement between you and us on the matters contained herein. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. In entering into this Agreement, you agree that you have not relied upon any statement, representation, warranty, or agreement made by us except for those expressly contained in this Agreement. Except as stated otherwise herein, this Agreement may only be amended or modified by a written agreement.
Third-Party Beneficiaries. Our Customers are third-party beneficiaries of this Agreement. At their election, and in their sole discretion, you agree that each of our subscribing Customers may avail itself of any provision or protection in this Agreement. However, this Agreement is a supplement to, and not a replacement for or modification of, any agreement that you may have with a Customer, or any policies and procedures of a Customer, as such Customers may amend from time to time.
Waiver. Our failure or delay in exercising any right or remedy or in requiring the satisfaction of any condition under this Agreement will not operate as a waiver or estoppel of any right, remedy, or condition. A waiver made on one occasion is effective only in that instance and only for the purpose that it is given, and is not to be construed as a waiver on any future occasion.
E-Signature. Your electronic signature or acknowledgement, or that of any authorized representative, in the form of an email, online click-through, or otherwise, of this and any other agreement with us or with any Customer is enforceable to the same extent as a physical signature.
Severability. Except as described in section 9D, if any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement remain in full force.
Force Majeure. Any delay or failure by us to perform our obligations under this Agreement will be excused to the extent that it is caused by an event beyond our reasonable control, such as acts of God, actions by governmental authority (whether valid or invalid), fires, floods, weather, explosions, riots, natural disasters, wars, sabotage, or labor problems that occur on an industry-wide, region-wide, or nationwide basis.
(Rev. 10/9/2019) © Copyright 2004-2019 AuctionACCESS, LLC. All rights reserved.