Seller Guarantee Terms and Conditions

Version: 10.9.26

1. General Conditions

By participating in the Seller Guarantee program, you, both individually and on behalf of your business or other entity (together, “Seller”), acknowledge and agree to the following:

1.1. Seller Guarantee is a program offered by Online Vehicle Exchange, L.L,C., d/b/a DealShield (“DealShield”) that, subject to these Seller Guarantee Terms and Conditions (“Terms and Conditions”), offers protection to a Seller who obtains a Manheim inspection from arbitrations relating to the related vehicle’s condition by standing in the Seller’s place for arbitration claims (“Seller Guarantee”). Seller Guarantee is a multi-channel release sold through Manheim Timed and Simulcast Live Sales through which vehicles are offered and sold (together, “Manheim Marketplace”).

1.2. Seller and any vehicle(s) for which Seller Guarantee is purchased (“Seller Vehicle”) are subject to these Terms and Conditions, regardless of who pays for the Seller Guarantee. Seller expressly agrees to these Terms and Conditions as part of its purchase or use of any Seller Guarantee.

1.3. Seller Guarantee only covers arbitration claims for a Seller Vehicle that is covered under the Seller Guarantee program and meets all conditions outlined in these Terms and Conditions (“Covered Vehicle”).

1.4. The Seller Guarantee program shall be offered at DealShield’s discretion. Provided however, both the Seller and DealShield reserve the right to opt out of the program at any time. Seller must provide DealShield with notice of its intention to stop participating in the Seller Guarantee program via call or email to DealShield Client Care. Covered Vehicles at the time of such notice shall continue to be covered, but no new purchases will be covered by the Seller Guarantee program.

1.5. Please refer to the policies governing transactions conducted through the Manheim Marketplace, which are currently published at https://site.manheim.com/en/marketplace-policies/us-policies.html and as amended from time to time (“Manheim Marketplace Policies”), which remain applicable to Seller Vehicle sales. In the event of a conflict between these Terms and Conditions and the Manheim Marketplace Policies, these Terms and Conditions shall control as they relate to any Seller Vehicle covered by them.

2. Participation and Fees

2.1. Participation in the Seller Guarantee program requires payment of a per-vehicle fee (“Fee”). The Fee is determined by DealShield and is subject to change with prior notice.

2.2. Seller agrees to receive net payment or invoicing subsequent to the completion of the sales transactions and the disbursement of funds to Seller, inclusive of any applicable Fees. While DealShield intends to deduct the Fee from Seller’s sale proceeds, in the event that this process does not take place, Seller is still responsible for all Fees, which may be invoiced by DealShield.

3. Ineligible Vehicles

3. Unless otherwise agreed to by DealShield in writing, Seller Guarantee is not available for the following vehicles:

3.1. General Ineligibility.

3.1.1. Vehicles without a vehicle condition score assigned by the Manheim inspection reflecting the vehicle’s condition at the time of Manheim’s inspection (“Condition Grade”) or with a Condition Grade of 0.0.

3.1.2. Vehicles sold with a Condition Grade older than 90 days.

3.1.3. Vehicles valued, offered, or sold with a transaction price above $75,000.

3.1.4. Vehicles offered or sold with an odometer reading of more than 150,000 miles.

3.1.5. Vehicles offered or sold with a model year that is 20 years older than the current calendar year.

3.1.6. Vehicles with History Issues as defined by NAAA policy including, but not limited to, Total Loss, Theft, Lemon Law, Taxi, Voided Factory Warranty, Flood, Fire, Biohazard, True Miles Unknown, Title, Odometer, and State Issued VIN Plates.

3.1.7. Vehicles which Seller is aware have previously been purchased or offered for sale as True Resource Auction/Salvage.

3.1.8. Vehicles which Seller is aware have previously been purchased or offered as an inoperable unit.

3.1.9. Vehicles offered as Specialty/Heavy Equipment.

3.1.10. Vehicles classified as Export-Only Buyer Purchase.

3.1.11. Vehicles listed with an As-Is, Red-Light, or Total Resource Auction announcement.

3.1.12. Alternative fuel or hydrogen vehicles, and conversions (Natural gas, etc.).

3.1.13. Vehicles listed with “No Arb for [defect]” announcements. Sellers must use NAAA sale light language, a descriptive disclosure, or Red Light/As-Is.

3.1.14. Vehicles announced only with a light or code without identification of the defect. Seller is responsible for ensuring that all its announcements are made in accordance with NAAA policy.

3.2. Exotic and/or Handmade Vehicles

3.2.1. Including but not limited to: Aston Martin, Bentley, Bugatti, Caterham, Ferrari, Koenigsegg, Lamborghini, Lotus, Maserati, Maybach, McLaren, Pagani, Panoz, and Rolls Royce.

3.3. Additional Ineligible Vehicle Types.

3.3.1. Vehicle models that average an annual production rate at or below 4,000 vehicles within the three most recently completed production years.

3.3.2. Vehicles that have been upfitted for specialty purposes by non-OEM providers or vehicles that differ from the manufacturer’s original factory specifications, including but not limited to Wrapped Vehicles.

3.3.3. Kit vehicles.

3.3.4. Homemade vehicles.

3.3.5. Armored/military vehicles.

3.3.6. Motorcycles, ATVs and UTVs.

3.3.7. Recreational vehicles.

3.3.8. Watercraft, boats, and marine vessels.

3.3.9. Trailers.

3.3.10. Class 4 and higher trucks with a Gross Vehicle Weight Rating (“GVWR”) greater than 14,000 pounds, as determined by the U.S. Department of Transportation.

3.3.11. Heavy Duty Trucks and Heavy Equipment categorized in Class A and B with a GVWR of 26,000 pounds or heavier.

3.4. Specific Make and Model Exclusions.

3.4.1. The following specific vehicle makes and models are ineligible for Seller Guarantee coverage, including but not limited to: Acura NSX, PMC Edition, and Type S; Alfa Romeo Quadrifoglio, 4C, and 8C; Audi R8, RS, SQ, and Avant; BMW Alpina and M models; Cadillac V models; Chevrolet Corvette; Chrysler SRT8; Dodge Viper, Demon, Hellcat, and SRT8; Fiat Abarth; Ford GT350, GT500, Raptor, Focus RS, Shelby F150, Roush, Shelby, Cobra, and GT; Honda Type R; Hummer H1, AMC H1; Jaguar F-Type; Jeep Trackhawk; Lexus IS-F, RCF, and GSF; Mazda MazdaSpeed; Mercedes-Benz Maybach Models, G-Wagon, and AMG; Mini John Cooper Works and GP; Mitsubishi Lancer Evolution; Nissan GT-R; Porsche 911; Ram Trucks TRX; Subaru WRX and WRX STI; Toyota GR; and Volkswagen Golf R.

3.5 Additional Ineligible Vehicles.

3.5.1. DealShield may update this list from time to time in accordance with Section 13.1 below.

4. Nullification of Coverage

4.1. The following Seller acts or omissions will nullify Seller Guarantee coverage:

4.1.1. Disabling monitors, tampering with OEM equipment or settings, or bypassing dashboard.

4.1.2. Changes to vehicle condition following the Manheim inspection (e.g., becomes inoperable, or transportation and lot damage that occurs after the Manheim inspection) as determined by the arbitrator.

4.1.3. Selling or attempting to sell a vehicle with missing or inoperable SRS systems.

4.1.4. Clearing diagnostic lights or codes without successfully completing related repairs.

4.1.5. Removal of previous Manheim Disclosures and Announcements without successfully completing related repairs.

4.1.6. Arbitrations that are the result of pending OBD II Diagnostic Trouble Codes.

4.1.7. Vehicles that have broken or unresponsive OBD II Ports.

4.1.8. Vehicles with altered, modified, or removed emission control equipment.

4.1.9. Vehicles purchased or sold in a transaction not involving competitive bidding.

4.1.10. Modifying the condition report generated by Cox Automotive following the Manheim inspection.

4.1.11. Failing to provide the proper announcements for a vehicle.

5. Transaction Integrity

5.1. Seller represents and warrants that:

5.1.1. the Seller Vehicle is being sold by Seller as part of a bona fide and valid arm’s length transaction through a Manheim auction;

5.1.2. the Seller Vehicle was sold by Seller in a transaction involving competitive bidding;

5.1.3. Seller is not purchasing or selling the Seller Vehicle in collusion with any other person or entity, including, without limitation, the buyer or any subsequent buyer of the Seller Vehicle;

5.1.4. there is no crossover representation among parties to the vehicle transaction (e.g. an affiliated buyer and seller, a dual agent, etc.);

5.1.5. Seller, nor to Seller’s knowledge any other person or entity, has engaged in any kind of fraudulent, collusive, wrongful or improper conduct with respect to the Seller Vehicle, Seller Guarantee, or any Cox Automotive product, including, by way of example and not limitation, bidding on the Seller Vehicle in order to artificially inflate the sale price for such Seller Vehicle.

5.1.6. Seller shall comply with all applicable federal, state, provincial and local laws, rules and regulations relating in any way to vehicle sales and purchases and Seller Guarantee.

5.1.7. Seller will maintain complete and accurate records of the transactions made pursuant to these Terms and Conditions for a period of at least three (3) years following the date of the applicable transaction. Seller and its agents will, upon reasonable request by DealShield and at all reasonable times during the foregoing retention period, make such records available for inspection by DealShield or its authorized representatives, and give DealShield and its authorized representatives reasonable access, during regular business hours, to Seller’s personnel and other representatives in connection with such audit.

5.2. Notwithstanding anything to the contrary set forth herein, Seller hereby acknowledges and agrees that:

5.2.1. DealShield reserves all rights, including the right to take any applicable legal action against any Seller, entity or person whom DealShield reasonably suspects has committed or participated in any fraudulent, collusive, improper, or wrongful conduct with respect to Seller Vehicle, Seller Guarantee, or any other Cox Automotive product.

5.2.2. DealShield is a private business and, at any time in its sole discretion, has the right to decline to do business with Seller or any other entity or person (including any buyer of a Seller Vehicle), for any reason whatsoever.

5.2.3. if DealShield, its Affiliate, or Manheim auctions knows or reasonably believes that Seller has breached any of the foregoing representations, warranties or covenants or other provisions of these Terms and Conditions, DealShield, its Affiliates, and Manheim auctions may refuse to guarantee the Seller Vehicle under the Seller Guarantee program and may pursue any other remedies available at law or in equity, under these Terms and Conditions or otherwise. “Affiliate” means, with respect to a party, any entity that controls, is controlled by, or is under common control with such party. Affiliates of DealShield include Manheim Remarketing, Inc., Cox Automotive, Inc., and their affiliated companies and businesses. Seller further acknowledges and agrees that such remedies shall include, without limitation:

5.2.3.1. the right to deny Seller access to auctions and other sales channels operated by Cox Automotive, Manheim and theirrespective Affiliates;

5.2.3.2. the right to prohibit Seller and its Affiliates from purchasing or benefiting from any Cox Automotive product; and,

5.2.3.3. the right to set-off any amounts owed to Seller or its Affiliates including as provided for herein.

5.2.4.neither it nor its Affiliates may resell any Covered Vehicle during the ninety (90) day period immediately following the date of DealShield's resale of such Covered Vehicle where DealShield acquired such Covered Vehicle on Seller's behalf as a result of Seller's prior sale and a subsequent arbitration. If Seller or any of its Affiliates resells a Covered Vehicle in violation of the previous sentence, Seller shall immediately reimburse DealShield an amount equal to the sale price of the original transaction through which DealShield acquired such Covered Vehicle.

6. Indemnification. Seller will indemnify, defend and hold harmless DealShield and it Affiliates, their respective successors and assigns, and their respective officers, directors, shareholders, employees and agents (collectively, the “DealShield Indemnified Parties”) from and against any and all claims, losses, demands, causes of action, debts or liabilities, including reasonable attorneys’ fees, arising out of or resulting from (a) any breach or alleged breach of Seller’s obligations, representations or warranties under these Terms and Conditions (or any obligations, representations or warranties of any buyer of any Seller Vehicle that may be sold by Seller), or (b) any claim or demand made by any buyer or future owner or holder of a Seller Vehicle for which Seller has purchased Seller Guarantee.

7. LIMITATION ON LIABILITY. IN NO EVENT WILL THE DEALSHIELD INDEMNIFIED PARTIES BE LIABLE TO SELLER OR ANY THIRD PARTY (INCLUDING ANY BUYER OF A SELLER VEHICLE) FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR OTHERWISE IN CONNECTION WITH SELLER GUARANTEE, UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE DEALSHIELD INDEMNIFIED PARTIES’ TOTAL LIABILITY TO SELLER OR ANY THIRD PARTY (INCLUDING ANY BUYER OF A SELLER VEHICLE) FOR ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF SELLER GUARANTEE OR THESE TERMS AND CONDITIONS WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY SELLER TO DEALSHIELD WITH RESPECT TO SELLER GUARANTEE FOR THE SELLER VEHICLE AT ISSUE.

8. Proprietary Rights. Seller Guarantee and these Terms and Conditions constitute the intellectual property of and are owned by DealShield and/or its Affiliates. DealShield and/or its Affiliates retain all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to Seller Guarantee. Seller Guarantee is valuable trade secrets of DealShield and/or its Affiliates.

9. Account Information; Liability for Account Activity. Any username or password provided to or created or used by Seller for use in connection with Seller Guarantee and the purchase or use thereof by Seller may not be shared with anyone without the prior written authorization of DealShield. Notwithstanding the foregoing, Seller is solely responsible for and liable for any and all activity occurring on Seller’s accounts or under Seller’s username(s) and password(s), including the payment of all Fees. Seller agrees to immediately notify DealShield of any unauthorized use of Seller’s account, username or password or any other breach of security.

10. Right of Set-Off. Notwithstanding anything to the contrary in these Terms and Conditions, if Seller fails to pay any Fees or other amounts owed to DealShield or its Affiliates within thirty (30) days of the due date, DealShield and its Affiliates may deduct and set-off such unpaid Fees or other amounts from any amounts that become or are due or owing to Seller (including any amounts owed to Seller in connection with the return of any Seller Vehicle).

11. ARBITRATION AND CLASS ACTION WAIVER

11.1. SELLER AGREES TO ARBITRATE ANY DISPUTE OR CLAIM THAT IT MAY HAVE WITH DEALSHIELD THAT ARISES OUT OF OR RELATES IN ANY WAY TO THESE TERMS AND CONDITIONS OR SELLER GUARANTEE. ARBITRATION CONDUCTED HEREUNDER SHALL BE FINAL AND BINDING. THIS ARBITRATION PROVISION MEANS THAT SELLER’S CLAIMS AGAINST DEALSHIELD WILL BE RESOLVED THROUGH ARBITRATION RATHER THAN LITIGATION IN COURT. SELLER ACKNOWLEDGES THAT DEALSHIELD MAY (BUT SHALL NOT BE REQUIRED TO) SUBMIT TO ARBITRATION ANY DISPUTE OR CLAIM THAT IT MAY HAVE AGAINST SELLER, WITH ANY SUCH ARBITRATION BEING GOVERNED BY THE PROVISIONS OF THIS SECTION 11.

11.2. SELLER MAY OPT OUT OF THIS ARBITRATION AGREEMENT AND DOING SO WILL NOT IN ANY WAY PREJUDICE OR AFFECT SELLER’S BUSINESS WITH DEALSHIELD. TO EXERCISE THIS OPT-OUT RIGHT, SELLER MUST PROVIDE WRITTEN NOTICE OF ITS ELECTION TO OPT OUT TO DEALSHIELD AT THE FOLLOWING ADDRESS: C/O MANHEIM, 6205 PEACHTREE DUNWOODY ROAD, ATLANTA, GEORGIA 30328, ATTN: LEGAL DEPARTMENT, NO LATER THAN THIRTY (30) DAYS AFTER SELLER’S INITIAL ACCEPTANCE OF THESE TERMS AND CONDITIONS. THE PROCEDURE SPELLED OUT HEREIN IS THE ONLY WAY TO OPT OUT OF THIS ARBITRATION AGREEMENT, AND ANY ATTEMPTS TO OPT OUT AFTER THE DEADLINE SET FORTH HEREIN WILL BE INEFFECTIVE.

11.3. ANY ARBITRATION PROCEEDING HEREUNDER WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS OR REPRESENTATIVE PROCEEDINGS OF ANY KIND ARE NOT PERMITTED AND SELLER EXPRESSLY WAIVES ITS ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE PROCEEDING AGAINST DEALSHIELD. TO THE EXTENT THAT SELLER OPTS OUT OF ARBITRATION FOLLOWING THE PROCEDURE SET FORTH IN SECTION 11.2, OR IF THIS ARBITRATION AGREEMENT IS FOUND INAPPLICABLE TO SELLER’S DISPUTE WITH DEALSHIELD, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION. SELLER AGREES THAT THIS CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF ITS AGREEMENT WITH DEALSHIELD AND THAT IT MAY NOT BE SEVERED. IN THE EVENT THAT THIS CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, THEN THE ENTIRE AGREEMENT TO ARBITRATE WILL BE NULL AND VOID.

11.4. Any dispute or claim subject to arbitration hereunder shall be submitted to binding arbitration administered by the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to its Streamlined Arbitration Rules and Procedures as in effect at the time of the submission of such dispute or claim (the “JAMS Streamlined Rules”). The disputes and claims subject to arbitration hereunder will be resolved by a single arbitrator selected pursuant to the JAMS Streamlined Rules. The arbitrator shall be bound by and shall strictly enforce these Terms and Conditions and any other applicable agreement between Seller and DealShield, and may not limit, expand or otherwise modify any provision of these Terms and Conditions or the provisions of any other applicable agreement between Seller and DealShield. The arbitrator may award any relief that a court of law could applying the limitations of liability set forth in these Terms and Conditions. The arbitrator may award injunctive relief if permitted by law – but the injunctive relief awarded by the arbitrator may not extend beyond Seller’s business and dealings with DealShield. The laws of the State of Georgia will apply to any claims or disputes between Seller and DealShield. Any arbitration will be held in Atlanta, Georgia and conducted in English, unless otherwise agreed upon by the parties in writing. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator shall award DealShield its costs and fees if it is determined that Seller submitted or filed any arbitration in bad faith or that Seller’s claims against DealShield have no reasonable legal basis.

11.5. Seller agrees that its transactions with DealShield evidence transactions in interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of this arbitration clause and class action waiver (notwithstanding the application of Georgia law to any underlying claims). Seller also agrees that this arbitration clause and class action waiver survives any termination of these Terms and Conditions or any other agreement between Seller and DealShield.

12. Governing Law/Venue. These Terms and Conditions and performance hereunder are governed by the laws of the State of Georgia, without regard to its conflicts of laws rules. The parties hereby agree that the sole jurisdiction and venue for any action to enforce any arbitration proceeding, or any other litigation arising from or relating to these Terms and Conditions, to the extent not otherwise subject to mandatory arbitration pursuant to the arbitration clause set forth in Section 11, will be an appropriate federal or state court located in Fulton County, Georgia.

13. Miscellaneous

13.1. DealShield reserves the right to modify these Terms and Conditions from time to time and will post any such changes on the DealShield website. Seller agrees that continued participation in the Seller Guarantee program following any such modifications constitutes Seller’s acceptance of the updated Terms and Conditions.

13.2. These Terms and Conditions, together with the Manheim Marketplace Policies and Manheim Privacy Policy, constitute the complete and exclusive agreement between the parties relating to the subject matter hereof and supersede all prior proposals, understandings, and other agreements, oral and written, between the parties with respect to the subject matter hereof.

13.3. If any of these Terms and Conditions are held to be invalid, illegal, or unenforceable, such provision will be deemed restated in accordance with applicable law to reflect as nearly as possible the original intentions of the parties, and the remainder of these Terms and Conditions will remain in full force and effect.

13.4. Any delay in or failure of performance by DealShield under these Terms and Conditions will not be considered a breach of these Terms and Conditions and will be excused to the extent caused by any occurrence beyond DealShield’s reasonable control. DealShield’s failure to insist upon Seller’s compliance with any requirement of these Terms and Conditions or exercise any right provided for herein will not be deemed a waiver of Seller’s non-compliance or any right of DealShield. The Parties hereto agree that these Terms and Conditions, and all correspondence, documentation, and legal proceedings relating to these Terms and Conditions, be written or otherwise conducted in the English language.