DEALSHIELD TERMS AND CONDITIONS

Updated 06.05.17

By clicking acceptance of this agreement, or by otherwise purchasing or using any DealShield wholesale vehicle purchase assurance product, including the “360” product (each, a “Product”) offered by Online Vehicle Exchange, L.L.C. (or, in Canada, Cox Automotive Canada Company) (“DealShield”), you as the dealer customer, both individually and on behalf of your dealership, business or other entity, as the case may be (the “Dealer”), acknowledge and agree that (i) the purchase and use of the Product will be subject to these DealShield terms and conditions (these “Terms and Conditions”), (ii) in order to purchase and use any of the Products, Dealer must agree to these Terms and Conditions, and (iii) Dealer has full authority to bind to these Terms and Conditions any dealership, business or other entity for whom Dealer may be acting as a representative or agent.  For purposes of these Terms and Conditions, “Affiliate” means, with respect to either party, any entity that controls, is controlled by, or is under common control with, such party; Affiliates of DealShield include all Affiliates of Manheim Remarketing, Inc.

 

  1. DealShield 360 Product
    • These Terms and Conditions govern Dealer’s purchase and use of the Products. Unless otherwise agreed to by DealShield, the Products are not available and may not be purchased for:
  • vehicles having an odometer reading of more than 250,000 miles (400,000 kilometers);
  • vehicles designated “true miles (kilometers) unknown” or “not actual miles (kilometers)” or for which the true odometer reading is unknown ;
  • vehicles having a purchase price in excess of $100,000 U.S. Dollars (or $120,000 Canadian Dollars);
  • vehicles that are more than twenty (20) model years old;
  • trailers, motorcycles, watercraft, recreational vehicles (RVs) or heavy trucks and equipment;
  • Class 4 vehicles and higher (weight greater than 14,000 pounds) as determined by the Gross Vehicle Weight Rating (GVWR) established by the US Department of Transportation;
  • vehicles that have been up-fitted for specialty purposes by non-OEM providers, including, for example: bucket trucks, tow trucks, stake-bed trucks, dump trucks, refrigerated trucks, shuttle vans, school vans, etc.;
  • salvage, salvage-rebuild, total loss claim, flood or previously stolen vehicles or vehicles acquired through a Total Resource Auction sale;
  • vehicles sold under a Manufacturer’s Statement of Origin (MSO), Manufacturer’s Certificate of Origin (MCO) or otherwise sold without a negotiable US title (provided that Canadian titles are acceptable for Canadian transactions);
  • vehicles subject to or previously subject to a manufacturer buyback, including vehicles subject to any “lemon law”;
  • kit vehicles, homemade vehicles and other modified vehicles; and
  • hand-built exotic vehicles (including, for example, Aston Martin, Bentley, Bugatti, Dodge Viper, Ferrari, LaForza, Lamborghini, Lotus, Maserati, Maybach, McClaren, Panoz, H1 Hummer and Rolls Royce).

DealShield reserves the right to impose additional vehicle or transaction eligibility requirements from time to time, in its sole discretion, and to reject any Product claims that violate these Terms and Conditions, including the Dealer’s Warranties and Obligations at Section 2 below.

    • Upon receipt of Dealer’s request to purchase a Product, DealShield will issue Dealer an invoice (“Invoice”).  Subject to Dealer’s payment of any applicable Fees (as defined below) and these Terms and Conditions, DealShield will provide to Dealer the Product identified in each Invoice.  The purchase of a Product will be complete only at such time as DealShield has confirmed eligibility and accepted Dealer’s request to purchase the Product for the applicable Dealer Vehicle (as defined below), at which time Dealer will receive a written or email confirmation from DealShield that the Product has been purchased for the applicable Dealer Vehicle. For each Product purchased by Dealer and confirmed by DealShield as set forth above, DealShield will agree to buy back the applicable Dealer Vehicle or refund to Dealer the purchase price for such Dealer Vehicle, in each case in accordance with these Terms and Conditions and the terms set forth on the applicable Invoice. Notwithstanding anything to the contrary in these Terms and Conditions, DealShield reserves the right to refuse to offer or make available any Product to Dealer or any other person, including without limitation any Dealer or other person not in good standing with or owing outstanding payables to DealShield or its Affiliates, or to decline or reject a request to purchase any Product in connection with any vehicle purchase or sale transaction, in each case in its sole discretion. For purposes of these Terms and Conditions, “Dealer Vehicle” means any eligible vehicle purchased by Dealer, or for Dealer by Cox Automotive Vehicle Acquisition Services, through a wholesale auction or wholesale vehicle exchange operated by DealShield or any of its Affiliates , including, without limitation, Simulcast and Online Vehicle Exchange, or any other wholesale auction or sales channel that may be approved by DealShield as an authorized auction or sales channel (each, an “Authorized Sales Channel”), for which Dealer has purchased a Product and received the applicable email or written confirmation from DealShield as set forth above.
    • Dealer may purchase a Product for a Dealer Vehicle that Dealer is attempting to sell through an Authorized Sales Channel, and upon the sale of such Dealer Vehicle, the buyer shall be entitled to the benefits of the Product with respect to such Dealer Vehicle, provided that (i) such buyer and its use of the Product shall be subject to these Terms and Conditions, including any rights, conditions, or defenses DealShield may have vis-a-vis Dealer, and (ii) DealShield reserves the right to refuse to allow such buyer to use the Product if such buyer has been prohibited by DealShield from purchasing or using the Product, or if DealShield otherwise determines, in its sole discretion, that Dealer or buyer has violated these Terms and Conditions or any other agreement with DealShield or its Affiliates, or that there has been fraud or collusion on the part of Dealer and/or such buyer. Additionally, Dealer acknowledges that DealShield is a private business and has the right to decline to do business with Dealer, buyer, or any other person at any time, or to refuse to offer or make available any Product to Dealer or any other person (including any buyer of a Dealer Vehicle) at any time, in its sole discretion.
    • Dealer shall initiate any request to return a Dealer Vehicle through the following website: dealshield.com. Upon completion of the repurchase request, Dealer shall return the Dealer Vehicle to the auction facility designated by DealShield within twenty-four (24) hours. Any Dealer Vehicle returned to DealShield must be in the same condition as the condition of such Dealer Vehicle at the time of purchase by Dealer (subject to additional mileage on the Dealer Vehicle as permitted by the terms of the Product). Upon payment of all applicable Fees associated with the Dealer Vehicle purchase and delivery of the Dealer Vehicle’s title and bill of sale to DealShield, DealShield will proceed with the repurchase of such Dealer Vehicle, or will otherwise arrange for the purchase price for such Dealer Vehicle to be refunded to Dealer. The purchase price or refund amount remitted to Dealer shall be the amount set forth in the applicable Invoice for the Dealer Vehicle (subject to any set-off or other similar right that DealShield may have under these Terms and Conditions), and shall be paid within five (5) business days of satisfaction of the conditions set forth herein.
    • With respect to Dealer Vehicles purchased through an Authorized Sales Channel operated by Manheim Remarketing, Inc. or its Affiliates (each of which is also an Affiliate of DealShield), the then-current arbitration policies of Manheim shall apply (the “Manheim Arbitration Policy”). With respect to Dealer Vehicles purchased through an Authorized Sales Channel operated by a third party (other than Dealer Vehicles purchased at a non-auction Authorized Sales Channel), the then-current arbitration rules and policies promulgated by the National Auto Auction Association (NAAA) shall apply (the “NAAA Arbitration Policy”). To the extent a Dealer Vehicle is eligible for arbitration under the Manheim Arbitration Policy or the NAAA Arbitration Policy, Dealer agrees that the terms and conditions set forth in the Manheim Arbitration Policy or the NAAA Arbitration Policy, as the case may be, shall control and remain applicable notwithstanding anything to the contrary set forth herein. In addition, the parties acknowledge and agree that these Terms and Conditions and the Products offered hereby shall supersede any other wholesale purchase assurance or buy-back policies offered by DealShield with respect to Dealer Vehicles purchased through a wholesale auction venue operated by DealShield or its Affiliates.
    • If DealShield reasonably determines that there is a discrepancy in the condition of the Dealer Vehicle (including any missing or replaced parts or accessories), DealShield, in its discretion, may refuse to repurchase or accept the return of the Dealer Vehicle. Notwithstanding the foregoing, the acceptance by DealShield of any Dealer Vehicle returned to DealShield for repurchase or for a refund of the applicable purchase price shall in no event be construed as an acceptance of any Dealer Vehicle with any damage or other defect, or as a waiver by DealShield of any rights or remedies that it may have with respect to any damage or other condition issue affecting such Dealer Vehicle. In the event that any Dealer Vehicle returned to DealShield is not in the same condition as the condition of such Dealer Vehicle at the time of purchase by Dealer (subject to additional mileage on the Dealer Vehicle as permitted by the terms of the Product), and such Dealer Vehicle is repurchased by DealShield or the Dealer is otherwise refunded the applicable purchase price for such Dealer Vehicle, then DealShield reserves the right, at its election, to either (i) unwind such repurchase or refund transaction and charge Dealer’s account at the applicable Authorized Sales Channel for the full repurchase or refund amount, in which case Dealer shall be responsible for paying such amount and, if applicable, repurchasing the Dealer Vehicle, in each case in accordance with the normal payment policies of the applicable Authorized Sales Channel, or (ii) proceed to resell such Dealer Vehicle in whatever manner it deems appropriate (or proceed to resell such Dealer Vehicle on Dealer’s behalf in whatever manner it deems appropriate). In the event of any unwind of a repurchase or refund transaction pursuant to clause (i) above, DealShield shall relinquish the applicable Dealer Vehicle (and transfer title and ownership thereto) to Dealer upon receipt of indefeasible payment in full from Dealer for such Dealer Vehicle. In the event of any resale pursuant to clause (ii) above, DealShield shall have the right to invoice Dealer for the difference (if any) between the repurchase price or refund amount paid by DealShield to Dealer for such Dealer Vehicle, and the net proceeds received by DealShield from the resale of such Dealer Vehicle. For purposes of clarity, Dealer acknowledges and agrees that Dealer shall be exclusively responsible for any issue with respect to the changed condition of a Dealer Vehicle being returned to DealShield, regardless of whether such issue relates to damage caused by Dealer, any third party or an act of God (including any hail damage or any other weather related damage to a Dealer Vehicle, or any other damage that may have been caused by forces outside of Dealer’s control). DealShield’s determination of the condition of any Dealer Vehicle shall be final and binding on the parties.
    • Dealer acknowledges and agrees that in the event of any dispute or disagreement with respect to the Product or any Dealer Vehicle, the refund of the purchase price for the Product to Dealer shall be Dealer’s sole and exclusive remedy. Notwithstanding the foregoing, DealShield shall not, in any event, have any obligation to refund or return the purchase price for any Product to any third-party buyer of a Dealer Vehicle as a result of any dispute between Dealer and DealShield.
    • DealShield may, in its discretion, develop and/or utilize a market index (“Market Index”) to be made available to 360 Dealers that will display certain current market conditions for Dealer Vehicles, including conditions indicating market distress (as such will be defined and determined by DealShield).  Dealer acknowledges and agrees that DealShield shall have the right, in its sole discretion, to temporarily suspend the sale of the Products and/or impose a uniform surcharge  on the sale of the Products (on a national or regional market basis) during a period of market distress, to the extent reflected in the Market Index.

 

  1. Dealer Warranties and Obligations.
    • Dealer will process the necessary paperwork to obtain clear title to the Dealer Vehicle and assign it to DealShield or its designee prior to return of the Dealer Vehicle to DealShield. Dealer will also cooperate in providing any other paperwork or signatures reasonably-requested by DealShield to process a returned Dealer Vehicle and/or reimbursement request.
    • Dealer represents and warrants that (i) each Dealer Vehicle sold to DealShield under these Terms and Conditions has clear title and is free and clear of any judgments, liens or citations, and (ii) the odometer reading on any Dealer Vehicle and the odometer statement related to such Dealer Vehicle is true and accurate in all respects.
    • Dealer further represents and warrants that the Product is being purchased by Dealer as part of a bona fide and valid arm’s length vehicle transaction through an Authorized Sales Channel, that the vehicle transaction involved competitive bidding, that Dealer is not purchasing or selling the Dealer Vehicle (for which the Product is being purchased) in collusion with any other person or entity, including, without limitation the seller or any subsequent buyer of the Dealer Vehicle, and that there is no crossover representation among parties to the vehicle transaction (i.e. an affiliated buyer and seller, a dual agent, etc.). Without limiting the foregoing, Dealer represents and warrants that neither it, nor to its knowledge any other person or entity, has engaged in any kind of fraudulent, wrongful or improper conduct with respect to the Dealer Vehicle or any Product, including, by way of example and not limitation, bidding on the Dealer Vehicle in order to artificially inflate the sale price for such Dealer Vehicle. Dealer acknowledges that any fraud or collusion on the part of Dealer (or any buyer of a Dealer Vehicle or any other third party) is subject to criminal prosecution, and DealShield or its Affiliates may report such activities to law enforcement.
    • Dealer hereby authorizes DealShield to execute documents and take such other actions as necessary to evidence and perfect DealShield’s title in any Dealer Vehicle that may be repurchased or otherwise remarketed by DealShield, and Dealer hereby agrees that DealShield and its Affiliates will be held harmless from any and all causes of action associated therewith.
    • With respect to any Product that provides for the reimbursement of certain transport costs or other out-of-pocket fees with respect to the Dealer Vehicle for which such Product has been purchased, Dealer represents and warrants that any amounts submitted or requested by Dealer for reimbursement through the Product represent out-of-pocket fees or costs that have actually been incurred by Dealer, and that are not subject to reimbursement from any other person or entity, including, without limitation, any vehicle manufacturer. Dealer shall include with each such reimbursement request, accurate, valid and authentic invoices documenting the out-of-pocket fees, costs and expenses incurred by Dealer. Notwithstanding anything to the contrary set forth herein, any obligation of DealShield or its Affiliates to reimburse any transport or other expenses hereunder shall not exceed $500 for any Dealer Vehicle.
    • Dealer acknowledges and agrees that neither it nor its Affiliates shall be permitted to purchase any Dealer Vehicle back from DealShield or any of its Affiliates within the ninety (90) day period immediately following the date of DealShield’s repurchase of such Dealer Vehicle, or the date on which DealShield remitted to Dealer the applicable refund for such Dealer Vehicle (as the case may be), unless it pays to DealShield or its Affiliate, as applicable, the full amount of the repurchase price or refund paid by DealShield or its Affiliate for such Dealer Vehicle. In the event that Dealer purchases any such Dealer Vehicle within the ninety (90) day period described above for less than the repurchase price or refund amount previously paid to Dealer by DealShield with respect to such Dealer Vehicle, then DealShield shall have the right to require that Dealer pay to DealShield the difference between the purchase price paid by Dealer for such Dealer Vehicle and the repurchase price or refund amount previously paid to Dealer by DealShield with respect to such Dealer Vehicle.
    • Dealer shall comply with all applicable federal, state, provincial and local laws, rules and regulations relating in any way to vehicle sales and purchases.
    • Dealer 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. Dealer 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 Dealer’s personnel and other representatives in connection with such audit.
    • Notwithstanding anything to the contrary set forth herein, Dealer hereby acknowledges and agrees that if DealShield or its Affiliate knows or reasonably believes that Dealer has breached any of the foregoing representations, warranties or covenants, DealShield and its Affiliates may refuse to repurchase or accept the return of any Dealer Vehicle, and may pursue any other remedies available at law or in equity, under these Terms and Conditions or otherwise. Dealer further acknowledges and agrees that such remedies shall include, without limitation, (i) the right to deny Dealer access to auctions and other sales channels operated by Manheim and other Affiliates of DealShield; (ii) the right to prohibit Dealer and its Affiliates from purchasing or benefiting from any Product; and (iii) the right to set-off any amounts owed to Dealer or its Affiliates as provided for herein. For purposes of clarity, these Terms and Conditions shall apply in equal force to both buyers and sellers of Dealer Vehicles.
  2. Fees; Payment. Dealer will pay DealShield the fees specified in each Invoice for the applicable Product (“Fees”). DealShield, through its authorized vendor, may charge the credit card or other account of Dealer that is on file on the date on which Dealer purchases the applicable Product. Dealer acknowledges and agrees that the Fees charged to Dealer may be re-calibrated and adjusted periodically based on Dealer’s return ratio, costs to DealShield, and other factors in DealShield’s discretion.  Without limiting the foregoing, DealShield also reserves the right, in its sole discretion, to charge an excess return fee (not to exceed $1,500) for each Dealer Vehicle returned by a Dealer operating under Excess Return Status.  For purposes hereof, a Dealer will be considered to be “operating under Excess Return Status” if such Dealer has returned 40% or more of the Dealer Vehicles  purchased by such Dealer within any four-week period (provided such Dealer has purchased ten (10) or more Dealer Vehicles in such period). All Fees and other amounts paid by Dealer pursuant to these Terms and Conditions are non-refundable, except as specifically provided for herein. Dealer will be responsible for and will pay all federal, state, provincial and local taxes that are imposed on the Fees paid or Products provided hereunder, other than taxes related to DealShield’s income arising out of the Products. Notwithstanding anything to the contrary in these Terms and Conditions, in the event Dealer fails to timely pay to DealShield (or its designee) the Fees for any Product, DealShield shall have the right, in its sole discretion and without any prior notice to Dealer, to cancel such Product order or otherwise reject Dealer’s request to purchase such Product for the applicable Dealer Vehicle. The rights set forth in the immediately preceding sentence shall be in addition to any other or further rights or remedies that may be available to DealShield under these Terms and Conditions or at law or in equity. Dealer acknowledges and agrees that once a Dealer Vehicle for which a Product has been purchased is sold by such Dealer, that Dealer has received the full intended benefit of the Product, and DealShield shall under no circumstances be required to refund to Dealer the purchase price for such Product, even in those cases where DealShield may decline to repurchase or accept the return of such Dealer Vehicle from the buyer as provided for herein.

 

  1. Indemnification. Dealer will indemnify, defend and hold harmless DealShield, its Affiliates, subsidiaries, and their respective successors and assigns, and all of their respective officers, directors, 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 (a) any third-party claim resulting from any breach or alleged breach of Dealer’s obligations, representations or warranties under these Terms and Conditions (or any obligations, representations or warranties of any buyer of any Dealer Vehicle that may be sold by Dealer), or (b) except as provided in Section 1, any claim or demand made by any buyer or future owner or holder of a Dealer Vehicle for which Dealer has purchased any Product.
  2. LIMITATION ON LIABILITY. IN NO EVENT WILL THE DEALSHIELD INDEMNIFIED PARTIES BE LIABLE TO DEALER OR ANY THIRD PARTY (INCLUDING ANY BUYER OF A DEALER 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, 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 DEALER OR ANY THIRD PARTY CLAIMING THROUGH DEALER (INCLUDING ANY BUYER OF A DEALER VEHICLE) FOR ANY CLAIM ARISING OUT OF THE PRODUCTS OR THESE TERMS AND CONDITIONS WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY DEALER TO DEALSHIELD WITH RESPECT TO THE PRODUCT FOR THE DEALER VEHICLE AT ISSUE.
  3. Proprietary Rights. The Products constitute the intellectual property of and are owned by DealShield. DealShield retains all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to the Products. The Products are valuable trade secrets of DealShield.
  4. Account Information; Liability for Account Activity. Any user name or password provided to or created by Dealer for use in connection with the Products and the purchase thereof by Dealer may not be shared with any third party without the prior written authorization of DealShield. Notwithstanding the foregoing, Dealer is solely responsible for and liable for any and all activity occurring on Dealer’s accounts, and the payment of all Fees owed for Products purchased through such accounts.
  5. Right of Set-Off. Notwithstanding anything to the contrary in these Terms and Conditions, in the event that Dealer has failed to pay any Fees or other amounts owed to DealShield or its Affiliates within thirty (30) days of the date on which such Fees or other amounts became due, DealShield and its Affiliates shall have the unconditional right to deduct and set-off such unpaid Fees or other amounts from any amounts that may become due or owing to Dealer (including any amounts owed to Dealer in connection with the return of any Dealer Vehicle as set forth above). Additionally, DealShield and its Affiliates shall have the unconditional right to deduct and set-off from any amount owed to Dealer for any Dealer Vehicle being repurchased or accepted for return by DealShield, an amount equal to any unpaid Fees or other amounts owed for any Product or service provided with respect to such Dealer Vehicle (irrespective of whether such unpaid Fees or other amounts are past-due).
  6. ARBITRATION AND CLASS ACTION WAIVER
    • DEALER 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 ANY PRODUCT. ARBITRATION CONDUCTED HEREUNDER SHALL BE FINAL AND BINDING. THIS ARBITRATION PROVISION MEANS THAT DEALER’S CLAIMS AGAINST DEALSHIELD WILL BE RESOLVED THROUGH ARBITRATION RATHER THAN LITIGATION IN COURT. DEALER ACKNOWLEDGES THAT DEALSHIELD MAY (BUT SHALL NOT BE REQUIRED TO) SUBMIT TO ARBITRATION ANY DISPUTE OR CLAIM THAT IT MAY HAVE AGAINST DEALER, WITH ANY SUCH ARBITRATION BEING GOVERNED BY THE PROVISIONS OF THIS SECTION 9.
    • DEALER MAY OPT OUT OF THIS ARBITRATION AGREEMENT AND DOING SO WILL NOT IN ANY WAY PREJUDICE OR AFFECT DEALER’S BUSINESS WITH DEALSHIELD. TO EXERCISE THIS OPT-OUT RIGHT, DEALER 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 DEALER’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.
    • 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 DEALER EXPRESSLY WAIVES ITS ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE PROCEEDING AGAINST DEALSHIELD. TO THE EXTENT THAT DEALER OPT OUT OF ARBITRATION FOLLOWING THE PROCEDURE SET FORTH IN SECTION 9(B), OR IF THIS ARBITRATION AGREEMENT IS FOUND INAPPLICABLE TO DEALER’S DISPUTE WITH DEALSHIELD, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION. DEALER 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.
    • 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 Dealer 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 Dealer 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 Dealer’s business and dealings with DealShield. The laws of the State of Georgia will apply to any claims or disputes between Dealer 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 Dealer submitted or filed any arbitration in bad faith or that Dealer’s claims against DealShield have no reasonable legal basis. Canadian Transactions (only): Notwithstanding the foregoing, for any claims or disputes between Dealer and DealShield relating to Dealer Vehicles purchased from an Authorized Sales Channel located in Canada, the laws of the province of Ontario, and the federal laws of Canada applicable therein, will apply, and the arbitration will be held in Toronto, Ontario. All other terms herein apply.
    • Dealer 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). Dealer also agrees that this arbitration clause and class action waiver survives any termination of these Terms and Conditions or any other agreement between Dealer and DealShield.
  7. Governing Law/Venue. These Terms and Conditions and performance hereunder will be governed by the laws of the State of Georgia (except to the extent set forth in Section 9(e)), 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 9, will be an appropriate federal or state court located in Fulton County, Georgia. Canadian Transactions (only): Notwithstanding the foregoing, for any claims or disputes between Dealer and DealShield relating to Dealer Vehicles purchased from an Authorized Sales Channel located in Canada, the laws of the province of Ontario, and the federal laws of Canada applicable therein, will apply. To the extent not otherwise subject to mandatory arbitration pursuant to the arbitration clause set forth in section 9, the parties hereby agree to the exclusive jurisdiction of the Courts of Ontario, located in Toronto.
  8. Changes to Terms and Conditions. DealShield reserves the right to modify these Terms and Conditions from time to time and will post any such changes on the DealShield website. Dealer agrees that the purchase or use of any Product after such changes have been posted to the DealShield website will constitute Dealer’s assent to any such changes.
  9. Miscellaneous. 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 the reasonable control of DealShield. These Terms and Conditions, together with the DealShield Privacy Policy, which is incorporated herein, constitute the complete and exclusive agreement between the parties relating to the subject matter hereof. These Terms and Conditions supersede all prior proposals, understandings and all other agreements, oral and written, between the parties with respect to the subject matter hereof.  DealShield’s failure to insist upon Dealer’s compliance with any requirement of these Terms and Conditions or exercise any right provided for herein will not be deemed a waiver of Dealer’s non-compliance or any right of DealShield. If any of these Terms and Conditions are held to be invalid, illegal or unenforceable by an arbitrator or by a court of competent jurisdiction (as applicable), 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. The Parties hereto agree that this Agreement, and all correspondence, documentation, and legal proceedings relating to this Agreement, be written or otherwise conducted in the English language. Les parties aux présent ont exigé que la présente entente, de même que toute la correspondance et la documentation et juridique procédures relative à cette entente, soient rédigées ou autrement menées en langue anglaise.