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Welcome to PureCars.com. By using this website, you agree to accept this Terms of Service Agreement. This agreement is a legally binding agreement between you and PureCars.com; please read it carefully.
These PureCars Terms of Service (the “Terms of Service”) apply to the PureCars website located www.PureCars.com, and all associated sites linked to www.PureCars.com by PureCars, its subsidiaries and affiliates (collectively, the “Site”). This Site is the property of PureCars Technologies, LLC. By using this Site,
you agree to these Terms of Service. IF YOU DO NOT AGREE, DO NOT USE THE SITE.
Through this Site, you have access to a variety of website recourses and content, including software and software as a service offerings (“Software”), in addition to Web pages, data, text, images and other documents and information (“Materials”) These Terms of Service are a legal agreement between you (“you” or “your”) and PureCars Technologies, LLC and its affiliated companies (“we”, “our”, “PureCars”). By accessing or using the Site, the Software or the Materials, you agree that you are at least eighteen (18) years old and agree to be bound by following terms and conditions concerning your access and use of the Site, Software and Materials provided on or through the Site and our Privacy Policy , regardless of any co-branding. PureCars reserves the right to change the Terms of Service and the Privacy Policy at any time and for any reason. Updated Terms of Service and Privacy Policy will be effective when posted.
The Site is an online research, information, listing, and advertising service. PureCars operates the Site primarily in order to help bring together buyers and sellers of automobiles and automotive related goods and services by providing relevant information that improves the buying process. PureCars does not sell vehicles directly. Neither PureCars nor the Site is a party to any transaction between buyers and sellers. Any and all concerns, discrepancies, or differences regarding a vehicle must be addressed with the seller prior to the sale of a vehicle. PureCars does not (a) guarantee, ensure, or warrant any vehicle or any transaction between a buyer and seller, (b) collect or process payments, fees, or transfer of title on behalf of buyers or sellers, or (c) warehouse, store, transport, deliver, service, repair, warrant, or insure, any vehicles.
Information related to vehicles available on the Site is supplied by the seller or other licensors, suppliers, service providers, distribution partners, advertisers, and/or other third-parties that PureCars does business with (the “Affiliates”), and discrepancies or errors may appear. PureCars does not purport to verify any of the information for accuracy, omissions, or completeness. PureCars is not responsible for the pricing, availability, location, performance, features, options, condition, or status (new, used, certified) of listed vehicles or goods and services found on the Site. PureCars does not ensure, warrant, or otherwise, guarantee the information contained or compiled on the Site.
Subject to the laws in your jurisdiction, the price and any other terms of any sale may remain subject to direct negotiation between the buyer and the seller only. The prices listed by sellers or other Affiliates may, among other things, exclude finance charges, license, title, regulatory, emission validation, dealer documentary, compliance fees, federal/state/local taxes, other fees, and other unlisted costs, any and all of which may be added to the listed price to arrive at the final sale price of a particular vehicle.
By “submitting” (which includes permitting access to) data, information, advertisements, photos, listings, reviews, ratings, comments, materials, or any other content (collectively, “Content”) to the Site or PureCars, you hereby grant to PureCars and its Affiliates a perpetual, royalty-free, irrevocable, non-exclusive, sub-licensable, transferable, right and license, to copy, modify, edit, manipulate, store, display, promote, aggregate, distribute, perform, create derivative works from, and in any way use all such Content in any form, media, software, current technology, and/or technology developed in the future. Content excludes consumer nonpublic personal information (as defined by 15 U.S.C. § 6801 through § 6810). You further grant PureCars and its Affiliates a royalty-free right and license to use your corporate or personal name, likeness, image, logo, trademark, copyright, and information, in connection with the distribution or reproduction of said Content and waive any moral rights you may have in said Content.
PureCars will not sell or lease any Content that you indicate is not to be made publicly available (“Proprietary Content”) to any third party. Furthermore, PureCars will take reasonable measures to ensure the Proprietary Content is not released to any third party in a manner that can identify you as the origin of such Proprietary Content, except when such release is appropriate to comply with law (including disclosure in response to a request from a law enforcement agency), or to protect the rights, property, or safety of visitors to the Site, PureCars, Affiliates, and/or others.
By submitting Content to the Site or PureCars, you hereby represent and warrant that your submission does not contain any computer viruses, worms, or other damaging computer files or code, you have all necessary authority, rights, and permissions to submit the Content, and that you own or otherwise control all of the rights (including any copyright, trade secret, trademark, patent, or other intellectual property right) to the Content that you submit. Furthermore, you represent that the Content is accurate; that the use of the Content you submit (by you, PureCars and/or its Affiliates) does not and will not violate any rights, laws, or regulations, and will not cause injury to any person or entity. You further agree to release, defend, indemnify, and hold harmless PureCars and its Affiliates, and all their respective owners, members, directors, managers, officers, employees, agents, contractors, affiliates, representatives, and licensors (collectively, “Personnel”) from any and all claims, damages, demands, expenses, and costs (including attorney’s fees) resulting from Content you submit.
Customer hereby grants PureCars access to Customer’s systems to prepare analytics and publish information that promotes Customer’s vehicles to the public.
The Software (as defined above), includes software programming and technology, including without limitation, all code contained in the Site and all content generated by such code, and the Site itself, are owned by PureCars or its Affiliates, and are protected by copyright and other intellectual property laws, as well as provisions of international treaties.
Your use of the Software is subject to all agreements such as license agreements or user agreements that accompanies or is included with the Software, ordering or enrollment documents, exhibits and other terms and conditions that apply (“Order Form”). In the event that the Software is provided through the Site and is not licensed to your through terms specific to the Software, you may use the Software subject to the following: (a) the Software must be used solely for your personal, informational, noncommercial purposes; (b) the Software may not be modified or altered in any way; and (c) the Software may not be redistributed.
Any unauthorized access to, redistribution, reverse engineering, reproduction, display, publication, or other use of the Software, the Materials or the Site is expressly prohibited and may result in severe civil and/or criminal penalties. Notwithstanding anything to the contrary, header information found in a portion of Software shall take precedence over the foregoing as to that portion of Software (e.g., open source software developed by an Affiliate shall remain open source). You may not store, reproduce, publish, display, market, sell, distribute, transmit, duplicate, modify, re-post, re-transmit, or otherwise use any portion of the Site or of the Materials in any manner other than for non-commercial personal use.
Requests regarding usage of the Site or the Materials for any commercial purpose or non-personal use should be directed to Permissions, PureCars Technologies, LLC, 931 Monroe Drive NE, Suite A102 #359, Atlanta, GA 30308. Notwithstanding anything to the contrary, Customers, and clients or potential clients of a Customer who are authorized and consents to utilize or otherwise access the Site, the Software, the Materials or other services provided by PureCars (such clients or potential clients of a Customer are referred to herein as “Consumers”) may use the Site subject to applicable terms and conditions and other licensing terms and consistent with the intended functionality of a PureCars product for as long as such product subscription is active.
You are free to establish a hypertext link to the Site so long as the link does not state or imply any endorsement or sponsorship of you, your company, or your site by PureCars or any of its Affiliates, and also so long as the linked website does not include any content that is determined by PureCars to be false, misleading, racist, obscene, illegal, defamatory, threatening, invasive of privacy rights, infringing of copyright, trademark, or other intellectual property rights, or otherwise injurious to PureCars or its Affiliates. You may not incorporate into any other website or service any intellectual property of PureCars or its Affiliates. Framing, or any derivation thereof, is strictly prohibited.
As a user, you acknowledge that the Site may include trademarks and service marks owned by PureCars or its Affiliates. You agree not to copy, use, or otherwise infringe upon these trademarks without the prior written consent of the owner of the mark. Furthermore, you agree that you will not alter or remove any trademark, copyright, or other notice from any copies of the Site. The “PureCars” name, logo, slogans and product names are trademarks of PureCars. All rights reserved.
Under no circumstances will PureCars, the Affiliates, or the Personnel in any event be liable to you for any damages or losses including, without limitation, direct, indirect, exemplary, special, consequential, incidental, or punitive damages resulting from, or caused by, the Site, the Software, the Materials, the Content, or otherwise (including, without limitation, damages resulting from negligence).
PureCars is not responsible for lost revenues, profits, business, information, photos, or data, even if we are advised beforehand of the possibility of such losses or damages. In no event will the aggregate maximum liability of PureCars, its Affiliates, or its Personnel for any claim ever exceed the amount you paid PureCars in the prior six months.
PureCars will not be held liable in any way to any user, any third-party, or any entity that may receive or use the Site, Software, or other PureCars services for any inaccuracies, delays, omissions, interruptions, errors, and/or other problems. PureCars, the Affiliates, and the Personnel do not make any representation or warranties of any kind regarding the Site, the Software, other PureCars services, or results that may be obtained from use of any of the foregoing.
The Site, the Software, the Materials and any other PureCars services are presented on an “as is, as available” basis, and you expressly agree that the use of the Site and reliance on it is at your own risk. All PureCars offerings are services requiring customization and installation and shall not be considered goods for any purpose. There are no warranties that extend beyond the description herein. PureCars its affiliates, and its Personnel specifically disclaim any and all express or implied warranties including, without limitation, the warranties of fitness for a particular purpose, merchantability, non-infringement, completeness, or accuracy of any information made available. PureCars does not guarantee the Site will be continuously available, error free, or free from computer viruses or other known and/or unknown harmful components, or comply with national, state or local laws or regulations. PureCars, the Affiliates, and the Personnel make no representations or of warranties, expressed or implied, to any actual or prospective purchaser or owner of any vehicle as to the existence, ownership, condition, availability, location, accuracy, or completeness of any information regarding said vehicle (or product or service) displayed by PureCars. PureCars does not verify or warrant the accuracy or completeness of such information. In its sole discretion, PureCars reserves the right to correct any error or omission in Content it receives. Notwithstanding any of the foregoing, PureCars takes no responsibility and is under no obligation to make or complete any such correction.
To the extent “Customer Information” (as defined in 16 CFR § 314.2(b)) or “Personal Information” as defined in PureCars’ Privacy Policy is collected by PureCars on behalf of a Customer, PureCars maintains and periodically tests the efficacy of appropriate information security programs and measures including physical, electronic and procedural safeguards (collectively, the “Security Measures”) designed to protect the security and confidentiality of such “Customer Information” or “Personal Information”. Such Security Measures shall include appropriate procedures designed to (1) protect the security and confidentiality of such information, (2) protect against anticipated threats or hazards to the security or integrity of such information, and (3) protect against unauthorized access to or use of such information as set forth in the Privacy Policy.
As a Customer, you may have the opportunity to register with the Site to obtain access to certain administrative features. You agree that all information you provide during the registration process will be accurate and complete, that you will not register under the name of, nor attempt to enter the Site under the name of, another person or entity, and that your chosen representative has the authority to transact business on your behalf. You will be responsible for preserving the integrity and confidentiality of your username and corresponding password, and for all actions in regard to accessing the Site. Having a username and password does not guarantee permission to visit any and all areas of the Site.
You understand and agree that PureCars maintains your access to the Site. You may be terminated as an authorized user of the Site because, in the sole discretion of PureCars, you have violated an agreement with PureCars (including these Terms of Service) or for any other reason whatsoever. PureCars is not required to provide any warning, reason, or refund to you if you are so terminated. Upon termination, any right to access or use the Site, Software, Materials or any other PureCars services shall terminate. Should it become necessary for PureCars to collect the monetary obligations through an attorney or collections agency, you agree to pay all costs of collecting these monies (including reasonable attorney and/or collection agency fees) to the extent permitted by law.
PureCars in no way accepts unsolicited materials or ideas for use, transmission, or publication in its programming code or in other electronic, digital, or print media.
Customer may not assign, transfer or delegate its rights or obligations under these Terms of Service without the prior written consent of PureCars. Any purported assignment or delegation in violation of this section will be null and void. These Terms of Service may be enforced by, and will be binding upon, the parties hereto and their respective permitted successors and assigns.
The Site or PureCars may send you electronic notification to the email address currently on file regarding changes to the pricing of the services offered by PureCars. Failure to reply to or contest this email within thirty (30) days will constitute your acceptance of the new pricing.
Your ongoing and continued use of the Site after the posting of any amended Terms of Service shall constitute your agreement to be bound by any such changes. At any time PureCars reserves the right to modify, restrict access to, discontinue, terminate, or suspend the use of the Site, or any portion of the Site, without prior notice or liability.
These Terms of Service are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding arising out of or related to these Terms of Service or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in Fulton County, Georgia, and each party irrevocably submits to the exclusive venue and jurisdiction of such courts in any such suit, action, or proceeding.
In no event shall PureCars be liable to Customer or other user or beneficiary of the Services, or be deemed to have breached these Terms of Service, for any failure or delay in performing its obligations under these Terms of Service, if and to the extent such failure or delay is caused by any circumstances beyond PureCars’ reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, or any other circumstances beyond the PureCars’ control, whether or not similar in nature to those listed in this section.
As a condition of using the Site, you agree that all causes of action arising out of or connected with the Site shall be resolved individually, without resort to any form of class action. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or portion thereof, to be unenforceable, that provision of these Terms of Service will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms of Service will continue in full force and effect. Failure by the Site to enforce any provision of these Terms of Service will not be deemed a waiver of future enforcement of that or any other provision of these Terms of Service . Neither these Terms of Service , nor any terms and conditions contained herein, shall be construed as creating a joint venture, partnership, or agency relationship or granting a franchise between the parties.
Capitalized terms have the meaning as set forth or referred to in this clause, or in the clause in which they first appear in this TruPayments Agreement or in these Terms of Service.
1.1 “API” means PureCars’ Application Program Interface.
1.2 “Consumer” means a client or potential client of Customer who is authorized and consents to utilize or otherwise access the TruPayments Services.
1.3 “Customer” has the meaning set forth in the Terms of Services and as specified in an Order Form.
1.4 “Customer’s Website” means a group of World Wide Web pages owned and maintained by Customer or Customer’s representatives.
1.5 “Effective Date” means the date on which the second party has properly executed the Order Form.
1.6 “Fees” means subscription or other fees paid by Customer to PureCars for use of the TruPayments Services, as specified in the Order Form.
1.7 “Limited Consumer Information” means the information provided by a Consumer to PureCars that reflects the Consumer’s interest in and consent to participating in the TruPayments Services. Limited Consumer Information is provided by the Consumer and often includes, but may not always include, the Consumer’s name, address, e-mail address, income (self-reported), targeted monthly payment, targeted down payment, Social Security Number, and vehicle trade-in information. PureCars provides the Limited Consumer Information to Customer following receipt of Consumer’s consent to participate in the TruPayments Services.
1.8 “PureCars IP” means the TruPayments Services and any and all intellectual property provided to Customer in connection with the foregoing. For the avoidance of doubt, PureCars IP includes Aggregated Statistics and any information, data, or other content derived from PureCars’ monitoring of Customer’s and/or Consumer’s access to or use of the TruPayments Services but does not include Limited Consumer Information.
1.9 “TruPayments Agreement” means the Order Form for the purchase of TruPayments Services, any exhibits and these TruPayments Terms and Conditions.
1.10 “TruPayments Services” means the software-as-a-service offering whereby PureCars, with the Consumer’s consent, determines on a preliminary basis whether the Consumer may be eligible for vehicle financing. The TruPayments Services is not a complete credit approval system; the TruPayments Services is intended to provide a prediction or indication of whether a Consumer may be eligible for vehicle financing. The content, features, or functionality of the TruPayments Services may be modified, altered, or suspended, or discontinued by PureCars upon sixty (60) days’ written notice.
3.1 Consumer Consent. A Consumer consents to participation in the TruPayments Services by affirmatively communicating such consent to PureCars. Consumers who provide such consent submit Limited Consumer Information to PureCars and consent to PureCars providing Limited Consumer Information to Customer. PureCars will provide Limited Consumer Information to Customer provided that Consumer has given such permission. PureCars is solely responsible for securing valid consent from the Consumer for Consumer’s use of the TruPayments Services, and PureCars shall comply with all applicable U.S. laws and regulations addressing valid Consumer consent. Customer shall make no representations or statements inconsistent with the TruPayments Service and agrees to comply with all credit and consumer financing laws, including, without limitation, the Fair Credit Reporting Act.
3.2 After receiving Consumer’s consent to participate in the TruPayments Services, PureCars will make a soft inquiry of a credit bureau in order to gather basic credit eligibility information. If Customer is properly credentialed with the credit bureau utilized by PureCars, PureCars will use Customer’s code to make the soft inquiry and Customer will receive a secure link to the credit bureau report. If Customer is not properly credentialed, Customer will receive basic credit eligibility information from PureCars, but will not receive access to Consumer’s credit score.
4.1 Privacy. PureCars and Customer represent that they have and will maintain comprehensive policies for maintaining the privacy and security of any information provided by the Consumer, including but not limited to Limited Consumer Information.
4.2 Information Security. The PureCars and Customer represent that they have developed, implemented, and will maintain compliant and effective information security policies and procedures that include administrative, technical, and physical safeguards designed to: (i) ensure the security and confidentiality of information received within the operation of the TruPayments Services; (ii) protect against anticipated threats or hazards to the security or integrity of such information; and (iii) protect against unauthorized access or use of such information. Each party’s policy will also address reasonable disposal of consumer information, including but not limited to Limited Consumer Information. All personnel handling such information have been trained in the implementation of each party’s information security policies and procedures. Each party represents that it regularly audits and reviews its information security policies and procedures to ensure their continued effectiveness and determines whether adjustments are necessary in light of circumstances, including but not limited to changes in technology, customer information systems or threats or hazards to stored information.
5.1 Customer shall pay PureCars the fees (“Fees”) as set forth in the Order Form.
5.2 Taxes. All Fees and other amounts payable by Customer under this TruPayments Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on PureCars’ income.
6.1 From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this TruPayments Agreement, including to make required court filings. On the expiration or termination of the TruPayments Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this TruPayments Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6.2 Notwithstanding the foregoing, pursuant to 18 U.S.C. § 1833(b), an individual may not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a trade secret: (i) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; and/or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his or her attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order.
7.1 PureCars IP. Customer acknowledges that, as between Customer and PureCars, PureCars owns all right, title, and interest, including all intellectual property rights, in and to the PureCars IP. Furthermore, the Customer acknowledges and agrees that all goodwill associated with, or that shall become associated with, said intellectual property, computer codes/programming, and/or the TruPayments Services shall inure to the sole benefit of PureCars and be the sole property of PureCars.
7.2 If Customer or any of its employees or contractors sends or transmits any communications or materials to PureCars by mail, email, telephone, or otherwise, suggesting or recommending changes to the PureCars IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), PureCars is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to PureCars on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and PureCars is free to use, without any attribution or compensation to any party, any ideas, know- how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although PureCars is not required to use any Feedback.
PURECARS IP IS PROVIDED “AS IS” AND “AS AVAILABLE” AND PURECARS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PURECARS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, FAILURE OF PERFORMANCE, OR FREEDOM FROM QUIET ENJOYMENT, VIRUS, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PURECARS MAKES NO WARRANTY OF ANY KIND THAT THE PURECARS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CONSUMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. DEALER HEREBY RELEASES PURECARS FROM ANY AND ALL RESPONSIBILITY AND/OR LIABILITY WHICH MAY OTHERWISE BE ASSOCIATED THEREWITH.
9.1 IN NO EVENT WILL PURECARS BE LIABLE UNDER OR IN CONNECTION WITH THIS TRUPAYMENTS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PURECARS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PURECARS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS TRUPAYMENTS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PURECARS UNDER THIS TRUPAYMENTS AGREEMENT IN THE 6 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.2 Customer acknowledges that it is solely responsible for all data security and back-up in the event of a hardware or software malfunction. Under no circumstances will PureCars be responsible or held liable for the integrity of any software or data contained on Customer’s hardware or for Customer’s hardware failures. Customer will defend, indemnify, and hold harmless PureCars for the loss of any data or software under any and all circumstances whatsoever.
10.1 Term. The initial and any renewal term shall be as specified on the applicable Order Form.
10.2 Termination. In addition to any other express termination right set forth in this TruPayments Agreement or on an Order Form:
10.2.1 Either party may terminate this TruPayments Agreement, with or without cause, upon thirty (30) days’ written notice to the other party.
10.2.2 PureCars may terminate this TruPayments Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after PureCars’ delivery of written notice thereof; or (B) breaches any of its obligations under Section 2.2, 2.3 or Section 6;
10.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this TruPayments Agreement, Customer shall immediately discontinue use of the PureCars IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the PureCars IP and certify in writing to the PureCars that the PureCars IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
10.4 This Section 10.4 and Sections 1, 2.2, 5, 6, 7, 8, 9, 10.3, and 11 survive any termination or expiration of this TruPayments Agreement. No other provisions of this TruPayments Agreement survive the expiration or earlier termination of this TruPayments Agreement.
11.1 Entire Agreement. This TruPayments Agreement, together with the Order Form and all related exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this TruPayments Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
11.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). Except as otherwise provided in this TruPayments Agreement, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.
11.3 Force Majeure. In no event shall PureCars be liable to Customer, or be deemed to have breached this TruPayments Agreement, for any failure or delay in performing its obligations under this TruPayments Agreement, if and to the extent such failure or delay is caused by any circumstances beyond PureCars’ reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, or any other circumstances beyond the PureCars’ control, whether or not similar in nature to those listed in this Section.
11.4 Amendment and Modification; Waiver. Except as otherwise provided herein, no amendment to or modification of this TruPayments Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this TruPayments Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this TruPayments Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.5 Severability. If any provision of this TruPayments Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this TruPayments Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this TruPayments Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.6 Governing Law; Submission to Jurisdiction. This TruPayments Agreement is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding arising out of or related to this TruPayments Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in Fulton County, Georgia, and each party irrevocably submits to the exclusive venue and jurisdiction of such courts in any such suit, action, or proceeding.
11.7 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of PureCars. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This TruPayments Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
11.8 Export Regulation. The TruPayments Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re- export, or release the TruPayments Services or the underlying software or technology to or make the TruPayments Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.
11.9 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6 or, in the case of Customer, Section 2.2 or 2.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
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