BizzyCar Dealer Terms

Schedule 3
Dealer Terms

These BizzyCar Dealer Terms (“Dealer Terms”) are attached to and incorporated into the BizzyCar, Inc. Dealer Services Agreement (the “Dealer Services Agreement”) as Schedule 3. The term “Agreement” where referenced in these Dealer Terms means, collectively, the Dealer Services Agreement, these Dealer Terms, and all other schedules attached to and incorporated in the Dealer Services Agreement.

Definitions. Capitalized terms used but not defined in these Dealer Terms have their respective meanings as ascribed to them in the Dealer Services Agreement.
1. “BizzyCar Delivery Platform” or “Platform” means BizzyCar’s online software and services platform which is comprised of BizzyCar’s proprietary technology (“Software”) and the BizzyCar Services. The Software underlying the BizzyCar Delivery Platform is the property of BizzyCar, its affiliates and partners and is subject to the intellectual property rights, scope of use and restrictions set forth herein.
2. “BizzyCar Services” means the access rights to the Platform and the scheduling and information services provided by BizzyCar to Dealer through the Platform to enable Dealer to provide its own services to its customers, as described in the Dealer Services Agreement.
3. “Customer” means the individual customers of Dealer who receive services directly from Dealer as a result of Dealer’s access to and use of the Platform and the BizzyCar Services provided to Dealer through the Platform.
4. “Customer Data” means any information related to a Customer’s accounts or services that is located in Dealer’s DMS and Service Scheduling Software (as herein defined), service records, or databases, including personally identifiable information of a Customer (e.g., name, address, phone number, types of services received, amounts paid to the Dealer, etc.). The parties acknowledge and agree that use of Customer Data is subject to applicable Privacy Laws and the terms of the Agreement, including without limitation, the DPA.
5. “DPA” means the Data Processing Agreement attached to and incorporated into the Dealer Services Agreement as Schedule 3.
Scope of Use. Dealer acknowledges and agrees that:
1. it may only access and use the Platform and BizzyCar Services during the Term (as defined in Section 9c hereof);
2. it may only use the Platform and BizzyCar Services as provided, directed, and/or administered by BizzyCar or its affiliates, in accordance with the terms and conditions in the Agreement, and only for the benefit of Dealer and BizzyCar; and
3. it must not: (i) interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform, (ii) use the Platform to advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized by BizzyCar, (iii) use the Platform to promote any criminal activity or enterprise or provide instructional information about illegal activities, (iv) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Platform, (v) engage in or use any data mining, robots, scraping or similar data gathering or extraction methods, or (vi) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software.
Warranties and Covenants.
1. Dealer. Dealer warrants, represents, and covenants to the following:
  1. Dealer will comply with all applicable laws and regulations from time to time in effect with respect to its access to and use of the Platform and the BizzyCar Services received through the Platform and any services it provides to its customers resulting from such access and use, including without limitation, the DPA and all federal, state, and local laws governing an individual’s privacy rights and protections against unauthorized access, use and disclosure, including, without limitation, Telephone Consumer Protection Act 47 USC § 227 et seq. and 47 CFR § 64.1200 et seq and any similar applicable state statute (collectively, “Privacy Laws”) or any personally identifiable information contained in any individual’s Customer Data.
  2. Dealer is solely responsible for the quality of the services and parts it provides to Customers. A dealer may, in its sole discretion and at its sole cost and expense, offer warranties and guarantees to any Customer as part of its normal business operations; however, BizzyCar shall not be named either verbally or in writing in connection with any Dealer-offered warranties or guarantees.
  3. BizzyCar has no obligations to Dealer or any Customer in connection with Dealer’s services, warranties, or guarantees, and BizzyCar is released from any and all liability in connection with Dealer’s services, auto parts, warranties or guarantees provided by Dealer to its Customers.
  4. Dealer shall include an arbitration agreement and class action waiver in all of its agreements with its Customers and the Dealer’s terms and conditions regarding its Customer’s purchase of its products and services and use of the Dealer’s website that either names BizzyCar or Dealer’s vendors as a third-party beneficiary of the arbitration agreement and class action waiver.
2. BizzyCar. BizzyCar warrants, represents, and covenants to the following:
  1. BizzyCar has all necessary rights to provide Dealer with access to and use of the Platform, and the BizzyCar Services.
  2. The Platform and BizzyCar Services will be provided in a professional and competent manner consistent with applicable industry standards.
3. EXCEPT FOR THE FOREGOING WARRANTIES, DEALER’S USE OF THE PLATFORM AND THE BIZZYCAR SERVICES IS AT DEALER’S OWN DISCRETION AND RISK. DEALER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM ITS ACCESS TO THE PLATFORM OR ITS USE OF THE BIZZYCAR SERVICES, INCLUDING DOWNLOADING OR USE OF THE DATA. DEALER ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND BIZZYCAR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BIZZYCAR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SECURITY, QUALITY, TIMELINESS, AVAILABILITY, COMPLETENESS, RELIABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BIZZYCAR DOES NOT WARRANT THAT ACCESS TO THE PLATFORM OR THE BIZZYCAR SERVICES WILL BE UNINTERRUPTED, SECURE, COMPLETE OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE BIZZYCAR SERVICES OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BY USING THE PLATFORM OR THE BIZZYCAR SERVICES, DEALER ACKNOWLEDGE THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA, AND AGREE TO HOLD HARMLESS THE BIZZYCAR FOR ANY VIRAL INFECTION OR OTHER COMPUTER MALFUNCTION CAUSED AT ALL OR IN PART BY DEALER’S USE OF THE PLATFORM OR THE BIZZYCAR SERVICES.
Indemnity and Limitation of Liability.
1. Dealer Indemnity. Dealer shall indemnify, defend, and hold harmless BizzyCar and its officers, directors, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, the "BizzyCar Indemnified Party") from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under the Agreement(collectively, "Losses"), relating to, arising out of or resulting from any claim made against the BizzyCar Indemnified Party in connection with Dealer’s or its employees’, agents’, or subcontractors’ (i) negligence or willful misconduct in its performance of any services for any Customer, including without limitation, actions or inactions in response to warranty or recall obligations, (ii) breach of any of its representations, warranties or obligations under the Agreement, including breach of any applicable laws including Privacy Laws, or (iii) failure to obtain proper consents in connection with BizzyCar’s access to the DMS and/or Customer Data as provided in Section 8 below. Dealer shall not enter into any settlement without the Indemnified Party's prior written consent.
2. BizzyCar Indemnity. BizzyCar shall indemnify, defend, and hold harmless Dealer and its officers, directors, managers, employees, agents, affiliates, successors, and permitted assigns (collective, the “Dealer Indemnified Party”) from and against any and all Losses relating to, arising out of or resulting from any claim made against the Dealer Indemnified Party by a third party in connection with BizzyCar’s or its employees, agents’, or subcontractors’ (i) negligence or willful misconduct in its performance of its obligations to Dealer under the Agreement, (ii) breach of any of its representations, warranties or obligations under the Agreement, (iii) failure to comply with applicable laws. BizzyCar shall not enter any settlement without the Dealer’s prior written consent.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY SERVICES, PRODUCTS OR WORK PERFORMED OR PROVIDED BY DEALER TO ANY OF ITS CUSTOMERS, OR FOR ANY BREACH OF THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE EXTENT DEALER INCURS DIRECT DAMAGES AS A RESULT OF BIZZYCAR’S BREACH OF THE AGREEMENT, BIZZYCAR’S LIABILITY FOR SUCH DIRECT DAMAGES WILL NOT EXCEED $250,000.
Confidentiality.
1. Definition. “Confidential Information” means all information proprietary to the business of a party (the “Disclosing Party”), whether disclosed orally, in writing, electronically, or otherwise to the other party (the “Receiving Party”), including, but not limited to, information that has not been disclosed to the public or to the trade with respect to the Disclosing Party's present or future businesses, operations, services, products, research, inventions, discoveries, drawings, designs, plans, processes, models, technical information, facilities, methods, trade secrets, copyrights, software, source code, systems, patents, procedures, manuals, specifications, any other intellectual property, confidential reports, price lists, pricing formulas, customer lists, financial information (including the revenues, costs or profits associated with any products or services of the Disclosing Party), business plans, projections, prospects, opportunities or strategies, acquisitions or mergers, advertising or promotions, personnel matters, legal matters, any other confidential and proprietary information, and any other information not generally known outside of the Disclosing Party that may be of value to the Disclosing Party, and any confidential and proprietary information and trade secrets that third parties entrust to the Disclosing Party in confidence.
2. Exclusions. The following information shall not be deemed Confidential Information:
  1. any information that is already in the possession of the Receiving Party if received without any duty of confidence or non-disclosure;
  2. any information that is independently developed by the Receiving Party; or
  3. any information that, without breach of the Agreement, is or becomes publicly available or is rightfully received by the Receiving Party from a third party.
3. Obligations. The Receiving Party shall:
  1. hold in trust and confidence all Confidential Information of the Disclosing Party;
  2. refrain from using any of the Disclosing Party’s Confidential Information for any purpose other than as contemplated by the Agreement;
  3. not make any copies of any Confidential Information without the prior written consent of the Disclosing Party;
  4. implement safeguards and procedures at least as protective as those used to protect its own Confidential Information which prevents improper or unauthorized use or disclosure of the Disclosing Party’s Confidential Information and shall further ensure that its employees, agents, and contractors that receive Confidential Information keep and maintain such information confidential as if bound in the same manner as a party to the Agreement; and
  5. notify the Disclosing Party immediately in the event of any unauthorized use or disclosure of its Confidential Information.
4. Continuing Obligations. The Receiving Party shall return or destroy any Confidential Information upon the request of the Disclosing Party, and if any Confidential Information is destroyed, the Receiving Party will provide written certification of the destruction if requested to do so by the Disclosing Party. Notwithstanding the foregoing, each Receiving Party’s obligations of confidentiality shall remain in force for a period of five (5) years following the termination of the Agreement. For purposes of clarity, Confidential Information expressly excludes Customer Data.
Training and Support. Dealer is eligible to receive training from BizzyCar if offered in and subject to the terms and conditions set forth in the Dealer Services Agreement.
DMS, Service Scheduling Software and Customer Data. Dealer acknowledges and agrees that BizzyCar requires access to and Dealer agrees to provide BizzyCar access to or copies of: (a) Dealer’s Dealer Management System (“DMS”) and the software used for scheduling its Customers’ vehicle services (“Service Scheduling Software”), (b) information describing the services provided by Dealer to its Customers and the prices charged to the Customers for such Dealer services, and (c) Customer Data for the purpose of Customer contact information, service bay availability, technician availability, completed repair order (RO) revenue, and parts and supply availability. The provision of the foregoing access rights and information is subject to the following terms, representations, warranties, and covenants of Dealer:
1. Dealer represents and warrants that it has all necessary rights, licenses, and consents from all third party licensors of software and technology related to its DMS to provide BizzyCar with access to and use of Dealer’s DMS for all purposes related to this Agreement.
2. Dealer will provide Customer Data to BizzyCar upon request by BizzyCar as necessary to enable BizzyCar to fulfil its obligations to Dealer under this Agreement and the Dealer Services Agreement. The content and form of the submission of Customer Data will be determined by BizzyCar, in its sole and reasonable discretion, in accordance with common industry standards.
3. Dealer agrees that Customer Data may be retrieved from DMS by BizzyCar application tools or other generally accepted information technology tools that have been licensed to BizzyCar or Dealer for this purpose and are compliant with industry standards for such technology and all applicable laws and regulations.
4. Dealer agrees to allow BizzyCar to access and use Customer Data located on its DMS for the purposes herein stated. Accordingly, Dealer grants BizzyCar a non-exclusive, royalty-free, worldwide, irrevocable license to use Customer Data in BizzyCar client portals, or otherwise, for the performance of BizzyCar’s obligations to Dealer and for BizzyCar’s internal business purposes. Dealer will provide any necessary APIs and will assist BizzyCar with access to the DMS and Service Scheduling Software and will help troubleshoot any access and use issues. BizzyCar’s right to retain and use Customer Data, in accordance with the DPA shall survive termination of the Agreement.
5. Dealer warrants and represents that it has installed and properly licensed its DMS and that it has secured all necessary rights in the data therein. Dealer further warrants and represents that it has an accessible connection to its DMS to permit BizzyCar or BizzyCar’s agents or employees to extract the necessary Customer Data.
Default by Dealer.
1. The following shall constitute events of default by Dealer under the Agreement: (i) Dealer fails to timely make any payment of any amounts due hereunder; (ii) Dealer removes, disconnects or prevents access by BizzyCar to the DMS; (iii) Dealer fails to perform any of its obligations under the Agreement; (iv) Dealer files for, or becomes subject to, any voluntary or involuntary filing of bankruptcy; (v) Dealer becomes insolvent; (vi) all, or substantially all, of Dealer’s property becomes subject to any levy, seizure, assignment, application for sale for or by any creditor or government agency; (vii) Dealer executes an assignment for the benefit of creditors; (viii) a receiver is appointed for Dealer; or (ix) Dealer is in default under any other agreement between Dealer and BizzyCar or any of its affiliates.
2. Upon an event of default, BizzyCar may, at its sole option (i) terminate the Agreement; (ii) make the Platform inoperable; (iii) request that all BizzyCar branded materials be removed and returned to BizzyCar; (iv) terminate Dealer’s license rights; and (v) declare any or all amounts due under the Agreement to be immediately due and payable, including the right to accelerate for immediate payment all sums due through the end of the Term.
3. These Dealer Terms are effective and run coterminous with the Initial Term and any renewal term of the Dealer Services Agreement (the “Term”).
General Terms and Conditions
1. Dealer acknowledges and agrees that Dealer has not been induced to enter into the Agreement by any representation or warranty by BizzyCar not set forth in the Agreement. The Agreement contains the entire agreement of the parties and supersedes any and all previously existing agreements and all other oral, written or other communications between the parties as to its subject matter. The Agreement shall only be modified in a written document signed by an authorized representative of each party.
2. If any provision of the Agreement is held to be invalid, illegal, or unenforceable, the validity, integrity or enforceability of the remaining provisions shall not in any way be affected or impaired in any way.
3. The headings in the Agreement are for convenience only and shall not affect the interpretation of the Agreement.
4. The individuals signing the Agreement on behalf of each party hereby represent and warrant that they are duly authorized by each respective party to execute the Agreement.
5. All notices shall be in writing and shall be delivered or sent by either registered United States mail, return receipt requested, or via overnight courier to the address as listed herein, or at such other addresses as the parties may, from time to time, provide to one another.
6. BizzyCar may freely assign the Agreement. Except as set forth below, Dealer may not assign the Agreement without the prior written consent of BizzyCar, and any assignment of rights, duties or obligations without such consent shall be void. Notwithstanding the foregoing, Dealer may assign or delegate any of its rights, duties or obligations hereunder to an affiliate, and Dealer may assign the Agreement to any successor that acquires all or substantially all of the business or assets of Dealer by way of merger, consolidation, other business reorganization, or the sale of interests or assets, provided that Dealer notifies BizzyCar in writing of such assignment and the successor agrees in writing to assume and be bound by the terms and conditions of the Agreement. No such assignment or delegation shall be deemed a termination of the Agreement. Without limiting the foregoing, if a successor acquires all or substantially all of the Dealer’s business or assets by way of merger, consolidation, other business reorganization, or the sale of interests or assets and the successor does not agree in writing to assume and be bound by the terms and conditions of the Agreement, Dealer shall be deemed to be in default hereunder and BizzyCar shall have the rights set forth in Section 9 hereunder as well as all other rights and remedies in the Agreement, at law, and in equity. No such assignment or delegation shall relieve Dealer of any of its obligations hereunder.
7. All actions or proceedings in any way, manner or respect, arising out of, from or related to the Agreement, to the extent allowed by law, shall be governed by Missouri law and shall be brought exclusively in the United States District Court for the Eastern District of Missouri or courts located in St. Louis County, Missouri. Dealer hereby consents and submits to the jurisdiction of each such court.
8. DEALER HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION IN ACCORDANCE WITH THIS PARAGRAPH AND WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION HEREUNDER OR ARISING OUT OF BIZZYCAR’S TRANSACTIONS WITH DEALERSHIP.
9. Neither party shall be liable for any failure or delay in the performance of any of its obligations under the Agreement caused by or resulting from any act, omission or condition beyond its reasonable control, whether or not foreseeable or identified, which may include, without limitation, acts of God, pandemics, strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disaster or failures of the internet, BizzyCar’s, Dealer’s or any third party's networks, data systems, hardware, computer software or communications equipment or facilities (“Force Majeure”). In the event of a Force Majeure event, the affected party will promptly notify the other party of the existence of the Force Majeure event and the circumstances and expected duration of the Force Majeure event. Upon cessation of the Force Majeure event, the affected party will promptly notify the other party and all affected obligations and responsibilities under the Agreement will immediately resume.

BizzyCar Dealer Terms

Schedule 3Dealer Terms

Schedule 3
Dealer Terms