LAST UPDATED NOVEMBER 2021

This Terms of Service for Subscription Software and Design Services (“Terms of Service”) constitutes a legally binding agreement between you (“you” or “Subscriber”) and Speed Digital, LLC (“Company”), a North Carolina limited liability company. By subscribing to or using any of Company’s cloud-based computer services, including the DEALER ACCELERATE®, AUCTION ACCELERATE℠, and PRIVATE COLLECTION℠ cloud-based software applications, or by engaging Company to provide custom website design or hosting services, you agree to comply with and be bound by these Terms of Service.

1.       Scope of Services. Company’s Services include (a) DEALER ACCELERATE®, AUCTION ACCELERATE℠, and PRIVATE COLLECTION℠ proprietary software as a service (collectively the “Subscription Software”) that allow automobile dealers, auto auction companies, and individual classic automobile owners to manage their classic car inventory, publish to third-party websites, optimize their internal processes and communications, and provide access to data anytime using an internet-connected device and compatible web browser, and (b) the development and hosting of a custom website for promoting your business and advertising your available classic automobile inventory (the “Design Services”), including by displaying inventory data stored using the Subscription Software. The Subscription Software and Design Services are collectively referred to as “Services” or “Company’s Services.” To subscribe to and/or engage Company’s Services, you must complete an online subscription sign-up via our website, which identifies the components of the Services to which you have subscribed, any additional subscription terms, and the fees payable by you to Company for the Services. Please note that our fees and charges for the Design Services are not included in the subscription price for the Subscription Software. When you request our Design Services, we will provide you with a separate scope of work detailing the specifics of the customer web design and hosting project and the price for this work (the “Scope of Work”); and you must agree to the Scope of Work prior to commencement of work. Upon completing the subscription sign-up and paying any applicable fees, and subject to the completion of any Design Services necessary to allow you to make full use of the Subscription Software, you may access and use the Services for your own business purposes and subject to these Terms of Service. Company reserves the right to modify the Services and is not liable to you or anyone else for any such modification.

1.1.     Intended Use. The Services are designed and intended to be used by authorized persons over the age of eighteen (18) in connection with the storage, distribution, and research of classic automobile information in the United States. Your use of the Services for any other purpose is at your own risk.

1.2.     Other Services. You may subscribe to additional services that Company may, at its option, provide from time to time by completing any necessary subscription sign-up through our website, which will include the price and billing terms of such additional services. All such additional services are subject to these Terms of Service.

1.3.     Set-up and Configuration. Unless otherwise provided in these Terms of Service, you are solely responsible for determining the appropriate setup of the Subscription Software to meet your specific needs and, except as otherwise agreed to in writing, for providing any necessary training to your authorized users and maintaining the necessary equipment to utilize the Services, including any necessary computer hardware, mobile devices, software such as operating systems and web browser, and networking capabilities including internet or cellular access services. To the extent that Company elects to assist you with the set-up or configuration of the Services to meet your specific needs, Company makes no representations or warranties to any such work we may provide.

2.       Modification of Terms. To reflect changes and improvements, Company may need to change these Terms of Service from time to time. Any revised Terms of Service will supersede prior versions, will be published on Company’s website, and will be effective upon the “Last Updated” date shown at the top of the revised terms. Your continued use of the Services constitutes your acceptance of any revisions.

3.       Your Rights and Restrictions.

3.1.     Authorization to Use Services. Subject to your timely payment of all applicable fees and your compliance with these Terms of Service, Company authorizes you and your authorized users, who may only use the Services for your business purposes, a non-exclusive, non-transferable, and limited basis, to use the Subscription Software to which you subscribe solely for your internal business purposes. You are responsible for your authorized users’ compliance with these Terms of Service and agree to use commercially reasonable efforts to prevent unauthorized use of the Subscription Software. You agree that you will not assist or permit any third party to gain access to the Subscription Services. You are responsible for all activities that occur under your account or by your authorized users.

3.2.     Responsibilities. While the Services may assist you in conducting important aspects of your business, such as publishing advertising materials communicating with potential customers or purchasers, you are solely responsible for ensuring compliance with all applicable laws and regulations. You have sole responsibility for the accuracy and legality of all information and materials you provide for use with the Services, for complying with all applicable laws, including privacy and protection of consumer information, in using the Services. For example, although Company may provide a template for the website terms and privacy policy for use on your website, you remain solely responsible for ensuring that your website terms and privacy policy comply with applicable laws based on your unique situation, including by you conferring with your own legal counsel if you desire.

3.3.     Restrictions. You acknowledge that Company is the owner of all rights in and to the Subscription Software. You agree that you will not infringe Company’s copyright, attempt to modify, or jeopardize Company’s proprietary rights in the Subscription Software. You will not sell or offer for sale or transfer or attempt to transfer any rights to access the Subscription Software to any third party. You will not engage in any illegal or deceptive practices using the Subscription Software or use the Subscription Software to infringe the rights of any third party. You will not interfere with the performance of the Services, including by disrupting the operation of any software used to perform the Services, and will not access the data of any other customer of Company without authorization. At Company’s discretion, Company may monitor your use of the Services to detect and prohibit any improper or unauthorized use of the Services.

3.4.     Reservation of Rights. No other rights are granted to you except as expressly stated in these Terms of Services. Nothing in these Terms of Service conveys any rights to, ownership of, or license to the Services or any underlying software or intellectual property. Company owns all right, title, and interest in and to the Subscription Software and any work created pursuant to the Design Services, and any and all derivative works, and any know-how, works of authorship, and inventions developed by Company or Company’s authorized users during the course of performance of the Services.

4.       Fees. You agree to pay the non-refundable fees for the Subscription Software in the amount set forth in the online subscription sign-up and according to the billing terms set forth in the subscription sign-up. Company may increase the fees for the Subscription Software and will provide you with at least thirty (30) days notice of any increase, except that fees for any Subscription Software subject to a fixed term will only be increased at the time of subscription renewal. Fees are non-refundable even if you terminate your subscription early. By providing your credit card information, you authorize Company to charge to your credit card fees for any Services that you subscribe to and any additional services, including Design Services, you elect in accordance with the applicable billing terms. You agree to pay all fees and costs, including reasonable attorneys fees, incurred by Company to collect any past due amounts owed by you to Company, and to pay to Company interest on any past due amount at the rate of 1.0% per month or the maximum legal rate. Except where the law requires Company to pay or collect taxes for which you are responsible, you agree that you are responsible for all sales tax, use tax, value added taxes, withholding taxes, and any similar taxes and charges imposed by federal or local governments. Software subscription fee schedule.

5.       Term and Termination.

5.1.     Term. The term of the Services will be monthly and as may be further described in the Scope of Work and shall automatically renew for successive monthly terms unless Company discontinues the Services or you provide us with notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.

5.2.     Termination. Either party may terminate any subscription to Services (i) if the other party breaches any of its obligations under these Terms of Service and such breach is not cured within thirty (30) days of receipt of notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. Company may immediately terminate your subscription if you breach these Terms of Service as determined in our sole discretion. Upon termination of your subscription for any reason, you will immediately discontinue use of all Services. Neither party will be liable for any damages resulting from a termination authorized by these Terms of Service, but the termination will not affect any legal claim accruing prior to the termination.

5.3.     Termination and Stored Data. You agree that upon expiration of your subscription to the Services or upon termination of the Services pursuant to these Terms of Services, Company may immediately deactivate the Services and delete your data thirty (30) days thereafter. If Company terminates the Services, Company will grant you temporary, limited access to the Services to retrieve your proprietary data provided you have paid in full all amounts owed to Company. You agree that Company will not be liable to you or anyone else for any termination of Services or deletion of your data pursuant to these Terms of Service.

6.       Service limitations. Company uses reasonable efforts to keep the Subscription Software and any hosted websites operational. From time to time, our service offerings and availability may change, and any such change will be without liability to you. For example, Subscription Software or hosted websites may experience temporary interruptions due to technical difficulties, maintenance, or testing, or updates, including those required to reflect changes in relevant laws and regulatory requirements, and Company shall not be liable to anyone for such interruptions.

7.       Disclaimer of Warranties. To the fullest extent permitted by applicable law, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING THOSE OF MERCHANTABILITY, SATSIFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SUBSCRIPTION SOFTWARE OR THE SERVICES WILL MEET ALL OF YOUR REQUIREMENTS OR THAT THE USE OF THE SUBSCRIPTION SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SUBSCRIPTION SOFTWARE AND SERVICES ARE PROVIDED FOR YOUR LIMITED USE ON AN “AS-IS” BASIS AND YOUR USE IS AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, COMPLIANCE WITH ANY LAWS, RULES, OR REGULATIONS. THE PARTIES EXPRESSLY ACKOWLEDGE THAT THE DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF SERVICE. COMPANY HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS, RULES, OR REGULATIONS. THIS DISCLAIMER APPLIES BUT IS NOT LIMITED TO ANY FEDERAL OR STATE STATUTES OR REGULATIONS THAT MAY BE APPLICABLE TO YOU. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH THE SERVICES OR THESE TERMS OF SERVICE OR ANY REVISED TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SERVICES.

8.       Indemnification.

8.1.     Company’s Indemnification. Company will indemnify, defend, and hold harmless you from and against all claims brought against you by a third party alleging that the provision of Subscription Software pursuant to these Terms of Service infringes or misappropriates a third party’s copyright, trade secret, trademark, or patent, provided you notify Company promptly of any such claim or potential claim and provide reasonable assistance to the Company to defend the claim. If you choose to obtain your own representation for such claims, you must do so at your own expense.

8.2.     Your Indemnification. You agree to indemnify, defend and hold harmless Company, its affiliates, employees, officers, directors, contractors, agents, licensors, successors, and assigns from any and all claims, judgments, awards, demands, suits, proceedings, investigations, damages, costs, expenses, losses, and any other liabilities including attorneys fees, court costs, expert fees, and expenses arising out of or relating to your use of these Services in violation of these Terms of Service or your gross or willful conduct provided Company notifies you promptly of any such claim or potential claim and provides reasonable assistance to you to defend the claim. If Company chooses to obtain its own representation for such claims, Company must do so at Company’s own expense.

9.       Limitation of Liability. Except in connection with either party’s indemnification obligations set forth herein, your obligation to pay for the Services, and breach of data protection requirements, TO THE FULLEST EXTENT ALLOWED BY LAW, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE IS LIMITED TO THE SUM OF THE AMOUNTS PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. TO THE FULLEST EXTENT ALLOWED BY LAW AND WHERE PERMITTED BY LAW, NEITHER PARTY WILL BE RESPONSIBLE FOR LOST PROFITS, REVENUES, DATA, FINANCIAL LOSSES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THESE TERMS OF SERVICE. IN ALL CASES NEITHER PARTY WILL BE LIABILE FOR ANY LOSS OR DAMAGES THAT IS NOT REASONABLY FORESEABLE.

10.     Data Usage.

10.1.   Data Privacy Notice. You agree and understand that data that is collected from your customers or potential customers in connection with the Services is owned by you. You agree to comply with all applicable privacy, data protection, anti-spam, and other laws, rules, regulations and guidelines relating to protection, collection, use, and distribution of personally identifiable information (PII) of any person. If required by applicable law, you will inform third parties that you are providing their PII to us for processing and, if applicable, other purposes and will ensure that any required third parties have given their consent to such disclosure, processing, and other applicable use. PIII includes any information that can be associated with or traced to any individual, including name, address, phone number, email address, credit card information, social security number, and vehicle identification number.

10.2.   Company’s Use of Data. As part of the consideration for your use and receipt of the Services, you agree that Company may access, process, and analyze any data that you collect, compile, or utilize in connection with the Services so that Company may (a) provide the Services and (b) create, generate, or analyze Company’s own proprietary data (the “Proprietary Data”) that will reflect, relate to, describe, and concern aspects of your data. Proprietary Data may include information that is derived from your data relating to time, location, and pricing of automobile sales or offers for sale and vehicle identification number, make, model, year, condition, descriptive information relating to automobile sales or offers for sale. You acknowledge and agree that Proprietary Data and the methods used to generate the Proprietary Data are owned exclusively by Company, and you hereby agree and consent that Company may use, permit third parties to use, offer to sell, and sell Proprietary Data to any third party without compensation to you of any kind to you.

10.3.   Website Notice of Data Usage. With respect to any custom website for your benefit created by Company pursuant to these Terms of Service and any applicable Scope of Work, you agree that Company may include in the custom website an appropriate notice to your customers or other users of the custom website explaining how data provided by users of the custom website may be used. By way of example only, Company may provide continuing notice on the custom website that your customer’s PII will be accessed by Company for purposes of providing the Services and that certain PII will be used and processed by Company and may be sold to third parties.

10.4.   Company’s Privacy Policy, which is made available on the website through which you access the Subscription Software, is hereby fully incorporated in and made part of these Terms. In the event of a conflict between these Terms and the Privacy Policy, these Terms will prevail.

11.     Assignment. You will not assign or transfer the Services or any of your rights or obligations under these Terms of Services to any third party without Company’s prior written consent. Company may assign its rights or obligations under these Terms of Service without notice.

12.     Applicable Law. These Terms of Service shall be deemed entered into and shall be interpreted under the laws of the State of North Carolina without regard to choice of law provisions. All disputes arising out of or related to these Terms of Service shall be subject to the exclusive jurisdiction and venue of the courts, tribunals, agencies, and other dispute resolution organizations in Charlotte, North Carolina.

13.     Waiver of Rights. YOU AGREE TO WAIVE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, ANY CLAIMS FOR PUNITIVE OR EXEMPLARY DAMAGES AND ANY RIGHT TO PURSUE CLAIMS ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY, WHICH RELATE IN ANY WAY THESE TERMS OF SERVICE.

14.     Arbitration. PLEASE READ THIS SECTION CAREFULLY because it affects rights that you might otherwise have. It provides for resolution of most disputes through arbitration instead of court proceedings.

14.1.   Arbitration is different from court. There is no judge or jury, but the arbitrator can award damages. Arbitration is final, binding, and subject to only limited review by a court. You agree to give up your right to a trial in court except for certain small claims as described below.

14.2.   You agree that this arbitration section shall survive termination of these Terms of Service. This section shall be broadly interpreted to encompass all disputes or claims arising out of or relating to these Terms of Service, including any Scope of Work. Any dispute or claim made by you against Company or against any of our subsidiaries, parents, or affiliated companies arising out of these Terms of Service, including any Scope of Work, whether based on contract, statute, fraud, misrepresentation, tort, or any other legal theory, will be resolved by binding arbitration, except that you may take claims to small claims court if they qualify for hearing by such court.

14.3.   You must first present any claim or dispute to Company by emailing a complete description of the basis for the claim or dispute to legal@speeddigital.com. You may request arbitration if your claim or dispute cannot be resolved within sixty (60) days of you emailing the basis to us. The arbitration of any dispute or claim shall be conducted in accordance with the rules of a nationwide arbitration organization, as modified in these Terms of Service. Any arbitration will be conducted in Charlotte, North Carolina. An arbitrator may not (i) award relief in excess of or contrary to what these Terms of Service provide; (ii) order consolidation or arbitration on a class-wide or representative basis, or (iii) award punitive damages or any other damages aside from the prevailing party’s actual damages, except that the arbitrator may award damages that any statute deems unwaivable and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute.

14.4.   The decisions of the arbitrator shall be binding and conclusive upon all parties involved, and any judgment or decision on an arbitration may be entered in and specifically enforced in any court having proper jurisdiction.

14.5.   If any portion of this section is determined by a court to be inapplicable or invalid, then the remainder shall be given full force and effect.

14.6.   Unless an applicable statute expressly permits awarding attorney’s fees to the prevailing party, all administrative fees and expenses of arbitration will be divided equally between you and Company. Each party will bear the expense of its own counsel, experts, witnesses, facility fees, and preparation and presentation of evidence at any arbitration hearing.

15.     Severability. If any provision of these Terms of Service is deemed invalid, the remaining provisions will remain in full force and effect.

16.     Entire Agreement. These Terms of Service and the terms you agree to during the online subscription sign-up constitute the sole and entire agreement between you and Company and supersede all prior agreements with respect to the Services. In the event of a conflict between these Terms of Service and the terms you agree to during the online subscription sign-up, the subscription sign-up terms will prevail.