Terms of Service – Updated as of 11/04/22
REVOLUTIONPARTS, INC. IS ONLY WILLING TO
PROVIDE THE SERVICES TO YOU UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS
CONTAINED IN THESE TERMS OF SERVICE. PLEASE READ THESE TERMS CAREFULLY AS THEY
AFFECT YOUR LEGAL RIGHTS.
These
Terms of Service, which are incorporated into each Order Form or click-through
registration form between a customer and RevolutionParts (collectively, with all attachments and
incorporated terms, the “Agreement”)
constitute a binding agreement between the customer identified on the Order
Form or in the click-through registration (“Customer”
or “you”) and RevolutionParts, Inc.
(“RevolutionParts,” “we,” or “us”) regarding the terms under which RevolutionParts
will
provide you with access to its proprietary online software-as-a-service
platform and related services that allow authorized sales channels to sell autoparts online and for end buyers to purchase auto-parts
from authorized sellers on the platform (collectively, the “Services” as defined in section 1
below). The Order Form or online registration form (as applicable), all
attachments thereto (if any), and this Terms of Service, and all incorporated
terms herein, shall be the entire Agreement between the parties in connection
with the Services. BY CLICKING ON THE BUTTON MARKED “I ACCEPT” OR BY USING THE
SERVICES YOU AGREE TO ABIDE BY AND BE BOUND BY THIS AGREEMENT (“Acceptance”). You agree that your
assent, given electronically, will have the same legal effect as if it had been
personally signed by you. To the extent permitted by law, this Agreement is
intended to supersede any provisions of applicable law, which might otherwise
limit its enforceability or effect, because it was entered into electronically.
By accepting this Agreement, you also represent that you are authorized to
accept these Terms on behalf of your company, if applicable.
Your Acceptance or use of the Services also
signifies that you have read, understood and agreed to be bound as well by the Website Use Policy and Privacy
Policy posted on this Website.
We reserve the right to update or change
our Services and this Agreement at any time. Any changes to this Agreement will
be posted on this website or otherwise in the RevolutionParts Services, and is effective fifteen (15) days after posting
as set forth in section 28 of this Terms of Service. Notwithstanding the
foregoing, RevolutionParts reserves the right to require you to re-accept the
updated Agreement before you can continue using the Services. The
RevolutionParts may provide you with email notice regarding material changes to
this Agreement.
By your Acceptance or use of the Services,
you agree that any previous agreements between you and RevolutionParts will be
terminated and superseded by this Agreement. Notwithstanding the foregoing, in
the event you negotiate and execute with RevolutionParts an additional document
that expressly amends the terms of this Agreement (an “Amendment”), such Amendment shall supersede and override this
Agreement solely to the extent of the changes expressly set forth in the
Amendment. In the event of any conflict between the terms in this Agreement and
the Amendment, the Amendment will control.
1. SERVICES.
RevolutionParts provides access to its
proprietary software-as-a-service platform that facilitates the sale and
distribution of auto-parts and other products through authorized sales
channels pursuant to the terms of this Agreement.
Sellers
and Seller Websites, Channel Operator Marketplaces, RP Marketplace, and
Third-Party Marketplaces.
RevolutionParts provides access to the
Services to enable Sellers, distributors and
manufacturers (collectively referred to as “Sellers”) to sell auto-parts to third-party buyers, and for Buyers
to purchase auto-parts, either (1) directly from such Sellers through a
private-label website hosted, supported, and provided by the RevolutionParts (“Seller Websites”), or (2) through a Channel Operator-branded
marketplace (a “Channel Operator
Marketplace”), (3) a third-party marketplace, or (4) the RP Marketplace
(defined below). For purposes of this Agreement, a “Channel Operator” is
defined as a third-party that operates a sales channel marketplace for Sellers
to sell auto-parts to Buyers.
Sellers may only sell those auto-parts and
other products that it has a legal right to sell and must do so in accordance
with the terms and conditions of this Agreement and applicable laws. All
purchase and sale transactions using the Services, including via Seller
Websites, or via a Channel Operator, RP Marketplace, or third-party marketplace
are between the Seller and Buyer directly and RevolutionParts is not a party to
such transactions.
The RevolutionParts Services include a
buyer and seller marketplace hosted by RevolutionParts (the “RP Marketplace”), which allows Buyers (defined below) to purchase
auto-parts and other products from Sellers via the RP Marketplace, subject to
the terms of this Agreement. RevolutionParts’ grants Customer the right to
access the RP Marketplace as configured for that Customer and
hosted by (or on behalf of) RevolutionParts and pursuant to this Agreement.
Only authorized Sellers using the RevolutionParts Services and RP Marketplace
have access to specific OEM catalog data, subject to the terms of this
Agreement, including end user license restrictions as incorporated herein by
reference.
Retail Purchasers.
Retail purchasers that purchase auto parts
and other products from Sellers, as the seller of record through Seller
Websites, Seller-branded marketplaces, or the RP Marketplace (“Retail
Purchasers”) are excluded from the definition of Buyers below. Retail
Purchasers are subject to the Seller’s privacy policy, e-commerce terms
governing returns, shipping, recalls, and any other e-commerce policies
provided by the Seller, in the Seller’s sole discretion. As between Seller and
RevolutionParts, Seller owns or has the limited right to use all personal
information and other data provided to Seller by Retail Purchasers through a
Seller Website and RevolutionParts is not responsible for personal information
provided to a Seller in the RP Marketplace or otherwise through the Services.
Buyers
and Buyer Accounts.
RevolutionParts provides access to the Service to buyers (as a “Buyer”), each of who create a buyer account (“Buyer Account”) with RevolutionParts (the “Buyer Services,” and collectively with the Seller Services, the “Services”) and agree to this Terms of Service in connection with its use of the Services as a Buyer. The RP Marketplace and Channel Operator Marketplaces are provided by RevolutionParts for Buyers to purchase auto parts and other products directly from Sellers that are identified, searchable, and accessible through our platform. The Services for Buyers includes access to the RP Marketplace and Channel Operator Marketplaces. Buyers may interact with Sellers through the Services directly and such interactions and relating business transactions are solely between the Buyer, and the Seller, and not with RevolutionParts. RevolutionParts may send marketing and Services and product related notifications to Buyer, subject to its Privacy Policy and any consents required by applicable law, and subject to any terms agreed upon between RevolutionParts and Channel Operator.
Buyers may purchase auto parts and other products from a Channel
Operator Marketplace, subject to these Terms of Service and the terms and
conditions set by the respective Channel Operator and/or Seller. Buyers may
purchase auto parts and other products from a third-party marketplace, subject
to the terms and conditions of such third-party marketplace.
2. ACCOUNT IMPLEMENTATION.
2.1 In order to receive access to the Services, the Customer
administrator must complete the Customer’s account registration, which includes
providing full legal name of the
Customer and the authorized administrator, current address, a valid email
address, and any other information requested in order for RevolutionParts to
complete the onboarding process, which may include additional personal data
required to provide access to a third-party payment processor incorporated into
the Services. You will also have the ability to
provide additional optional information, which may not be required to register
for an Account but may be helpful to RevolutionParts in providing you with a
more customized experience when using the Services. All this information is
collected, used, stored and disclosed in accordance
with our Privacy Policy.
3. YOUR
RESPONSIBILITIES; COMPLIANCE WITH LAW.
3.1 You
are responsible for keeping your administrative password(s) secure and ensuring
that your authorized Users maintain the security and confidentiality of all
account credentials. We cannot and will not be liable for any loss or damage
from your failure to maintain the security of your account and password.
3.2 Sellers
are required to conform with our private label guidelines, which include having
a link to www.revolutionparts.com with an anchor text identifying
RevolutionParts as the technology provider and a small icon in a format
provided and/or approved by us in writing, located on the Services or otherwise
on the URL that provides access to our Services.
3.3 You
must comply with all applicable laws, regulations, legal requirements, and
general industry standards and self-regulatory principles, including
without limitation privacy laws, including the California Consumer Protection
Act, and intellectual property laws, and all laws related to marketing,
packaging, consumer and product safety, product testing, labeling, and pricing
and packaging, in connection with this Agreement, your use of the Services and
the sale and distribution of auto-parts and related products through the
Services. You represent and warrant that you have all necessary rights,
authorizations, and consents required to provide Customer Data to
RevolutionParts for purposes of providing the Services in accordance with this
Terms of Use. “Customer Data” shall
be defined as all data provided, submitted, or uploaded by Customer under the
scope of this Agreement.
3.4
Sellers are responsible for providing the appropriate privacy policy, refund
policy, return policy, and terms of use for your website and any terms of
service applicable to services provided through your website. RevolutionParts
is not responsible for the privacy practices of third-party
websites and is not responsible for your privacy policy or practices.
3.5 Sellers
are responsible for deciding whether to ship any products ordered through our
Services and for shipping such products to the Buyer or Retail Purchaser.
3.6 You
are responsible for all content and images that are uploaded and published by
you on your website and Services, and for obtaining all necessary licenses and
rights to third party materials that you publish or grant access to.
3.7 You
must comply with all laws or statutes that apply to you related to the sale and
advertising of products by you, including compliance with CAN-SPAM Act, consumer and antitrust laws.
3.8 You
must comply with all laws and standards relating to product safety and
liability in connection with the auto parts sold and distributed through
authorized channels.
3.9 In
order to make full use of the RP Marketplace Services and the Services, you
must comply with the minimum system requirements as provided during your
implementation process.
3.10 Submissions: You
agree that anything you post, submit, publish, display
or transmit to other persons (hereinafter, “post”) content or materials (collectively, “Submissions”) on or through the Services, must comply with the
Content Standards set out below. By providing a Submission through the
Services, you grant the RevolutionParts and its successors the right
to use, reproduce, modify, perform, display, distribute and otherwise disclose
to third parties any such material for purposes of providing the Services
agreed to hereunder. You promise that you own or control all rights in, and to,
the Submissions, and have the right to grant such license to us. You agree that
you will have no claim or other recourse against
the RevolutionParts for infringement of any proprietary right with
respect to your Submissions. Submissions must be accurate and comply with all
applicable laws in the country from which they are posted. You understand and
acknowledge that you are responsible for any Submissions you submit or
contribute, and you, not the RevolutionParts, have fully responsibility
for such content, including its legality, reliability, accuracy
and appropriateness. We are not responsible, or liable to any third-party, for
the content or accuracy of any Submissions posted by you or any other user of
the Services.
3.11 Content
Standards: These content standards apply to all of
your Submissions. Submissions must, in their entirety, comply with all
applicable local and international laws and regulations. Without limiting the
foregoing, Submissions must not: (i) Contain any
material that is defamatory, obscene, indecent, abusive, offensive, harassing,
violent, hateful, inflammatory or otherwise objectionable; (ii) Promote
sexually explicit or pornographic material, violence, or discrimination based
on race, sex, religion, nationality, disability, sexual orientation or age;
(iii) Infringe any patent, trademark, trade secret, copyright or other
intellectual property or other rights of any third-party; (iv) Infringe the
legal rights (including the right of publicity and privacy) of others or
contain any material that could give rise to any civil or criminal liability
under applicable laws; (v) Promote any illegal activity, or advocate, promote
or assist any unlawful act; (vi) Cause annoyance, inconvenience or needless
anxiety or be likely to upset, embarrass, alarm or annoy any other person;
(vii) Impersonate any person, or misrepresent your identity or affiliation with
any person or organization; (viii) Be likely to deceive or give the impression
that they emanate from or are endorsed by us, or any other person or entity.
3.12 Notwithstanding
anything herein to the contrary, the prohibitions listed above do not require RevolutionParts to
monitor, police or remove any Submissions or other information submitted by you
or any other user in the Services and RevolutionParts will not
monitor or police Submissions in the Services.
4. THIRD PARTY
SERVICES AND DATA END USER LICENSE.
4.1.
Optional Third-Party Services.
4.1.1. Customer
agrees and understands that as part of the Services, RevolutionParts may offer
access to products, tools, services, data, databases, or content owned by and
licensed from third parties (collectively, the “Third Party Services”). Customer may opt in to use certain
Third-Party Services through the RevolutionParts Services or otherwise through
your access to the Services. If Customer opts in to using such Third-Party
Services, Customer agrees to be bound by the applicable Third-Party Services
terms and to pay the fees for such Third Party Services
to Revolution Parts, unless expressly otherwise provided for during your opt in
and registration for such Third Party Services.
4.1.2. Third
Party Services may also include other tools, services, and integrations that
RevolutionParts offers through the Services and your use of the Services.
Customer understands and acknowledges that Third Party Services are not
licensed pursuant to the provisions set forth in this Agreement. The owners of
the Third Party Services retain all right title and
interest in their offerings and Customer shall have only such rights and/or
licenses, if any, to use the Third Party Services as are set forth in the
relevant terms, identified within your applicable registration of Services or
directly provided by the Third Party through its website, terms of use and
policies.
4.1.3. RevolutionParts
may support certain third-party local delivery services to facilitate local
parts delivery for its Buyers and Sellers. In each instance, the
RevolutionParts has contracted with a third-party delivery service
and you may opt in to using the delivery service subject to the applicable
provider’s terms and conditions. RevolutionParts is not responsible for such
third-party delivery services and does not guarantee or warrant the performance
of such services.
4.1.4 If any provider of Third
Party Services ceases to make such Third-Party Services available
through the RevolutionParts Services or Services, then we may cease providing
those Third-Party Services and related features and functionality without
entitling you to any credit, refund, or compensation.
4.2. Hosting
Provider. You agree and understand that RevolutionParts may enter into
an arrangement with one or more third parties for the performance of
RevolutionParts’ hosting obligations,
whereby any such third party may host the Services (RevolutionParts’ “Third-Party Hosting Provider”). RevolutionParts shall ensure that any such Third-Party
Hosting Provider shall be contractually bound to provide substantially the same
level of protection with respect to your Confidential Information as provided
by the terms of this Agreement. You acknowledge and agree that in the event of
a Third-Party Hosting Provider hosting the Services, such third party’s service
levels, acceptable use policies and information security policies will also apply.
If applicable, and upon your request, RevolutionParts will reasonably make this
information available to you.
4.3.
MOTOR END USER LICENSE. The Third-Party Services may also include access
to and the right to limited use of the Motor Information Systems motor
databases (“Motor Database”), which
is incorporated into the RP Marketplace Services and provides access to a
vehicle-by-vehicle part look-up catalogue. As a condition of accessing the RP
Marketplace Services pursuant to this Agreement and accessing the Motor
Database, you expressly agree to be bound by the terms of the End-User Terms of Use whereby
the Motor Databases (as defined therein) are licensed to you, as an End User,
subject to the restrictions therein. You agree to strictly comply with all of the terms and conditions of the End-User Terms of Use
related to the Motor Databases.
4.4.
DISCLAIMERS. REVOLUTIONPARTS SHALL HAVE NO OBLIGATION WHATSOEVER UNDER
THIS AGREEMENT TO DELIVER, SUPPORT OR MAINTAIN ANY SUCH THIRD PARTY OFFERINGS,
NOR WILL REVOLUTIONPARTS HAVE ANY LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF
THE NATURE OF THE CLAIM OR THE NATURE OF THE CLAIMED OR ALLEGED DAMAGES,
INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, FOR ANY CLAIM ARISING FROM OR RELATED TO CUSTOMER’S OR ANY
CUSTOMER’S USE OR DISTRIBUTION OF THE THIRD PARTY OFFERINGS, INCLUDING WITHOUT
LIMITATION ANY PRODUCT OR PART DATA MADE AVAILABLE THROUGH SUCH THIRD PARTY
SERVICES, AND THE REVOLUTIONPARTS DISCLAIMS ANY AND ALL REPRESENTATIONS AND
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY AND ALL SUCH
THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA
ACCURACY, TITLE, NON-INFRINGEMENT, AND/OR NON-INTERFERENCE. Customer
acknowledges and agrees that the foregoing disclaimers, limitations
and exclusions of liability form an essential basis of the bargain between the
parties, and that, absent such disclaimers, limitations and exclusions, the
terms of this Agreement, including, without limitation, the economic terms,
would be substantially different.
4.5 RevolutionParts Shipping Policy.
4.5.1
You may utilize
RevolutionParts Services to access and purchase certain shipping services
through various carriers available on the RevolutionParts Services. You
acknowledge and agree that RevolutionParts serves only as an intermediary
between you and the applicable carrier, and you are solely responsible for
shipping to your end customers, as well as compliance with all local and
international shipping and customs regulations. You agree that you are solely
responsible for any local customs charges, import taxes, or duties related to
your shipments and will arrange for payment. RevolutionParts shall not be
responsible or liable for picking up, transporting, delivering, or otherwise managing
or dealing with your shipment.
4.5.2
Your use of such
shipping services may be subject to additional terms of use or restrictions as
set by the applicable carrier. By opting into purchasing shipping services,
you expressly consent and agree that RevolutionParts may share your
information with the carrier for purposes of providing you the Services.
4.5.2.1
4.5.2.1.1
4.5.2.1.2
4.5.2.1.3
4.5.3
Customer will
indemnify, defend, and hold harmless RevolutionParts for any losses,
liabilities, or damages arising out of Customer’s breach of this section 4.5,
violation of any law or rights of a third party, or any of your acts or
omissions related to shipping. REVOLUTIONPARTS PROVIDES ACCESS TO SHIPPING
SERVICES ON AN “AS IS” AND “AS AVAILABLE BASIS” AND MAKES NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND IN CONNECTION WITH SHIPPING SERVICES PURCHASED
THROUGH ITS PLATFORM.
4.5.4
5. RETURN POLICY.
RevolutionParts does not
accept returns of parts purchased through its Services or the RP Marketplace
Services. Accordingly, all returns are subject to the appropriate Seller’s
return policy and RevolutionParts is
not responsible for part returns or refunds.
6. RESTRICTIONS ON
USE.
Unless you have written
permission from RevolutionParts stating otherwise, you shall not and are not
authorized to use the Services in any of the following ways (these are examples
only and the list below is not inclusive):
6.1. In
a manner that violates any local, state, national, foreign, or international
statute, regulation, rule, order, treaty, or other law;
6.2. To
interfere with or disrupt RevolutionParts’
Website or servers or networks
connected to the Services;
6.3.
To use any data mining, robots, scraper or similar data gathering or extraction
methods in connection with RevolutionParts’ Website or the Services;
6.4. Attempt
to gain unauthorized access to any portion of RevolutionParts’ Website or any other accounts, computer
systems, or networks connected to the Services, whether through hacking,
password mining, or any other means;
6.5. Take
any action that imposes an unreasonable or disproportionately large load on our
infrastructure;
6.6. Post
anything contrary to RevolutionParts public image, goodwill or reputation;
6.7. You
shall not purchase search engine or other pay per click keywords (such as
Google AdWords) or purchase domain names that use RevolutionParts’ name, RevolutionParts’ trademarks, logos or
variations of RevolutionParts trademarks or logos.
6.8. You
shall not allow unsolicited email, marketing communications, spam
or bulk email (“Prohibited Emails”) to be sent using the Services.
6.9. All
email sent via RevolutionParts e-mail servers must meet the following criteria:
6.10. The
recipient of your email has made a purchase, requested information, responded
to a questionnaire or a survey, expressly agreed to receive marketing
communication from you, attempted a purchase or had offline contact with you.
6.11. Email
subject lines must not contain misleading information.
6.12. You
shall not send unsolicited mass mailings from another service that in any way
implicates the use of RevolutionParts or our Third-Party Hosting Provider, whether or not the message actually originated from our
network.
6.13. We
may actively monitor our mail servers for abuse. RevolutionParts may
immediately terminate the Services, without refund, of any Customer that uses
the RevolutionParts mail servers to send Prohibited Emails.
6.14. You
may not (i) alter or copy, in any form or medium, all
or any part of our Services, including without limitation any Services; (ii)
create any derivative work from, or adaption of, of our Services, including
without limitation any Services or engage of any framing of the Website or
Services; or (iii) reverse engineer, decompile assemble or attempt to discover
any object code, source code, underlying processes or algorithms contained in
our Service, including without limitation in any Services, nor permit any
person or entity to commit or engage in such activities or conduct.
6.15. You
may not create an application that allows your purchasers to enter any party
number and receive alternative part numbers, whether OEM or aftermarket. As an
example, you may not create an application or functionality that allows your
purchasers to enter an OEM part number and be furnished a corresponding
aftermarket part number. OEM part numbers and pricing are used only for the
purpose of facilitating the sale of OEM parts between the Buyer and you.
RevolutionParts reserves the
right to terminate access to your Account without notice, for any action that
RevolutionParts reasonably determines is inappropriate or disruptive to the
Services, or to any other user of RevolutionParts’ Services. RevolutionParts may report to law
enforcement authorities any actions that may be illegal, and any reports it
receives of such conduct. When legally required or at RevolutionParts’
discretion, RevolutionParts will cooperate with law enforcement agencies in any
investigation of alleged illegal activity on the Services or on the Internet.
7. REPRESENTATIONS
AND WARRANTIES.
7.1. RevolutionParts
represents and warrants to you that it will perform the Services using
personnel of required skill, experience, and qualifications and in a professional
manner in accordance with generally recognized industry standards for similar
services.
7.2. Customer
represents and warrants to RevolutionParts that it shall (a) use the Services
solely for the sale or purchase of auto parts and/or products for installation
purposes, and not for warehousing
purposes; (b) use the Services in compliance with all applicable laws, rules,
regulations, and standards; and (c) that it has all necessary rights and
consents in and relating to any data, materials, content or information
received by RevolutionParts in accordance with the Services provided under this
Agreement and such data does not otherwise violate any intellectual property
rights or any privacy or other rights.
7.3. Customer
agrees and acknowledges that the Seller in the RP Marketplace is the “seller of
record” in connection with the authentication and quality of each automotive
part and accessory and to the extent applicable, represents and warrants to
RevolutionParts that it shall not sell or offer for sale any counterfeit parts
or accessories or any parts in violation of any applicable laws, rules,
regulations, or standards.
7.4. Each
party represents and warrants to the other party that it has the full right,
power, and authority to enter into and perform its
obligations and grant the rights and authorizations under this Agreement and
that such party is authorized to enter into this Agreement and bind the
respective party and that this Agreement constitutes the legal, valid, and
binding obligation of such party, enforceable against such party in accordance
with its terms.
8. SEARCH ENGINE
PERFORMANCE AND RANKINGS.
We cannot guarantee search
engine performance or ranking of a Services or auto parts e-commerce website.
We do not have control over many aspects of search engine performance, such as
changes to the ranking algorithms used by search engine companies and relative
strength of competitors’ rankings.
9. FEES AND PAYMENT
TERMS.
9.1 Payment of Fees. In consideration
for the Services, Customer shall pay all subscription fees, applicable taxes,
and any other charges as set forth on the Order Form or in the registration
process between Customer and RevolutionParts. The subscription fees may include
your platform fee, an agency fee (as defined in the Order Form or attached
Scope of Work), and any additional marketing services fees, each as set forth
on the Order Form (the “Subscription
Fees”). Customer account activation and billing occurs upon Customer’s
execution of the Order Form; provided that the subscription Term
commences as of the subscription start date indicated in the Order Form. All fees are non-cancelable and
non-refundable except as expressly provided herein. RevolutionParts does
not pro-rate fees for partially unused months. You agree to provide
RevolutionParts with complete and accurate billing and contact information.
9.2 Taxes. All Subscription Fees are exclusive of taxes and
similar assessments, other than sales taxes, which will be added to invoices
for the Services. You are responsible for all other taxes and other similar
charges by any federal, state, or local government authority on your use of the
Services, other than taxes imposed on the RevolutionParts income. If
applicable, you shall provide the RevolutionParts with a tax-exempt certificate
upon commencement of your Subscription.
9.3 Payment
Terms.
(a) Implementation Fees. RevolutionParts will
invoice Customer for all implementation fees following Customer’s execution of
the Order Form. Invoices are due and payable upon issuance of invoices.
(b) Subscription Fees. Subscription Fees are payable
monthly during the Term of this Agreement, unless stated otherwise. If Customer
has provided an authorized payment method (either credit card or ACH) to
RevolutionParts, then Customer hereby authorizes RevolutionParts to
automatically charge its designated payment method for the Subscription Fees,
monthly, unless stated otherwise, during the Term of the Agreement without any
further authorization by Customer. Customer agrees and acknowledges that the
foregoing authorization, if applicable, will remain in effect until the
Customer cancels such authorization by providing written notice to RevolutionParts.
Alternatively, if Customer elects to pay by check, RevolutionParts will invoice
Customer monthly and such invoices are due within thirty (30) days of issuance.
If Customer elects to pay by check, RevolutionParts may assess an additional administrative
fee of $25 per invoice.
9.4 Fee
Increases. RevolutionParts may increase the fees payable under this
Agreement annually, effective as of each annual renewal date of the Term, or as
otherwise agreed upon by the parties in the Order Form. We will provide you
with prior notice of such fee increase.
9.5 Late Payments; Interest. If
you do not pay on time or if RevolutionParts cannot charge your payment method
for any reason, RevolutionParts reserves the right to either suspend or terminate
your access to the Services and Account, on notice to you, and/or terminate
this Agreement. If your designated payment information or credit card cannot be
charged or if you have any outstanding invoices for amounts due and not
received within thirty (30) days of issuance of invoice, then RevolutionParts
may assess a $25 late payment charge and interest at the rate of one and
one-half percent (1.5%), or the maximum permitted by law, whichever is less,
may be added for each month of delinquency.
Suspension of your access to the Services due to non-payment of fees, as
permitted under this Section, does not terminate the Agreement nor does it
relieve you of the obligation to pay all Fees incurred as of the date of such
suspension, in addition to all monthly Subscription Fees owed for the current
Term of your Agreement with RevolutionParts. If RevolutionParts elects to
terminate this Agreement under this Section, you shall immediately pay all
Subscription Fees and other fees set forth on the Order Form, owing for the
duration of the current annual Term of this Agreement. If your account is
delinquent after 120 days, then, in addition to the other obligations set forth
in this Section, you further agree to pay all fees incurred by RevolutionParts
or otherwise on our behalf, in the collection of outstanding fees under your
account. Reinstatement of your account following suspension may only occur
following payment of all outstanding invoices and fees, as set forth in this
Section.
9.6 Fee Disputes. If you believe an invoice or other charge
is incorrect, you must contact RevolutionParts in writing within 30 days of the
applicable charge, otherwise such fees are deemed accepted and approved by you.
9.7. Fees
for Third-Party Services. You are also responsible for any fees related to
other Third-Party Services and products you may acquire from RevolutionParts and for any additional fees that may be
incurred, including, without limitation, charges related to the Buyers’ credit
cards (merchant account), chargebacks, fraud, renewing domain(s), shipping
merchandise to Buyers, advertising, marketplace fees and the like.
9.8 Fees
for Professional Services. In the event we are required to repair your
Services pages, we will charge our standard hourly rate with a 1-hour minimum
per require and invoice you for these professional services. Additionally, we
may agree in a separate Scope of Work for various consulting or other
professional services, which are subject to additional fees as set forth in the
relevant Scope of Work, if applicable. All professional services invoices are
due upon issuance, unless agreed upon otherwise.
10. TAX POLICIES.
If you opt-in and
agree to RevolutionParts’s Marketplace Tax Comply program, and contingent upon
your affirmative enrollment in RevolutionParts’s Marketplace Tax Comply program
by clicking “Enroll” in the Services process, then the following terms and conditions
are hereby incorporated into this Agreement and govern the Services provided to
you by RevolutionParts.
10.1. General. By opting in
to the RevolutionParts Marketplace Tax Comply program (“Marketplace Tax
Comply”) you agree and understand that in the jurisdictions in the United
States that have enacted marketplace facilitator laws and rules and in which
RevolutionParts is registered as a marketplace facilitator (the “Marketplace
Jurisdictions”), RevolutionParts, is the taxpayer responsible for calculating,
collecting, reporting, remitting, and refunding sales and use taxes on sales of
Seller’s goods on the RevolutionParts Marketplace Services, seller websites and
webstores (collectively, “RevolutionParts Sites”), as set forth in this
section, and RevolutionParts is referred to as the “Marketplace Facilitator” in
this section. To qualify as a “sale” under the Marketplace Tax Comply program,
the order must be prepaid electronically through the RevolutionParts Sites, referred
to herein as a “Marketplace Tax Comply Transaction.” Orders that are transacted
outside of the RevolutionParts Sites, whether via paper invoice, check, wire,
ACH or otherwise, are not considered “sales” that occur within the
RevolutionParts Sites and do not qualify under the Marketplace Tax Comply
program.
10.2. Marketplace Tax Comply Obligations and Responsibilities.
10.2.1. Seller agrees and acknowledges that (i)
RevolutionParts is the taxpayer of record in
connection with Marketplace Tax Comply Transactions in the Marketplace
Jurisdictions; (ii) RevolutionParts is solely responsible for determining
whether it must collect and remit sales and use tax to the appropriate
governmental agencies, including the amount of such tax; (iii) that Seller
remains the taxpayer of record for all other taxes applicable to Seller and
Seller’s business in all applicable jurisdictions, including those that are not
Marketplace Jurisdictions, and is responsible for complying with all applicable
tax laws and regulations appropriate to its business; and (iv) Seller is solely
responsible for any sales tax liability relating to RevolutionParts’ failure to
collect and remit sales and use tax in Marketplace Jurisdictions due to
insufficient or incorrect information provided by Seller to RevolutionParts.
10.2.2. Seller agrees and understands that except for the
collection of sales and use tax for Marketplace Tax Comply Transactions in the
Marketplace Jurisdictions, Seller is the taxpayer of record and is still
responsible for all taxes on its business. In connection with states that have
exclusions to the marketplace facilitator laws and rules, Seller acknowledges
and agrees that it will manage, collect, and remit the appropriate taxes in
such states and shall be solely liable for related liabilities in connection
with its collection and remitting of sales and use taxes in such states and
shall indemnify and hold harmless RevolutionParts for any violation of this
provision or for any liabilities, claims, charges, or assessments against
RevolutionParts in such jurisdictions .
10.2.3. RevolutionParts agrees and acknowledges that, as
Marketplace Facilitator, (i) RevolutionParts
shall be solely liable for calculating, collecting, remitting, and refunding
sales and use taxes covered under the Marketplace Tax Comply program in
the appropriate Marketplace Jurisdictions and in accordance with applicable
state laws, and shall be solely liable for related liabilities, including
without limitation any penalties and interest arising out of its collection and
remitting of sales and use taxes on Marketplace Tax Comply Transactions; and
(ii) RevolutionParts is solely responsible for determining whether it must
collect and remit sales and use taxes for Marketplace Tax Comply Transactions
to the appropriate governmental agencies, including the amount of such tax. RevolutionParts
is not collecting sales and use taxes for Marketplace Tax Comply Transactions
on behalf of a Seller, but rather, on its own accord as the taxpayer of record
in connection with Marketplace Tax Comply in the Marketplace Jurisdictions.
10.2.4. Sellers agrees to retain tax-exempt certificates from end
customers or Buyers for any Marketplace Tax Comply Transactions, if
applicable. You agree to provide such tax-exempt certificates within a
10-business day period following request by RevolutionParts and Seller is
solely responsible for any sales tax liability and related fines, interest, or
fees as a result of failure to produce a tax-exempt
certificate for such transactions.
10.3. RevolutionParts Indemnification Obligations. RevolutionParts agrees to hold harmless, defend, and
indemnify Seller for any liabilities, claims, penalties (including interest),
or loss (including reasonable attorneys’ fees) arising out of or related to
RevolutionParts’ calculation, collection, remittance or refunding of sales and
use taxes covered under the Marketplace Tax Comply Transactions in the
Marketplace Jurisdictions.
10.4. Seller Indemnification Obligations. Seller agrees to hold harmless, defend, and indemnify
RevolutionParts, and its officers, directors, employees, shareholders, and
agents for any liabilities, claims, penalties, or loss (including reasonable
attorneys’ fees) arising out of or related to the accuracy and completeness of
the information provided to RevolutionParts for purposes of calculating and
collecting sales and use taxes for Marketplace Tax Comply Transactions. Seller
agrees and acknowledges that it is solely responsible for the information
provided to RevolutionParts and shall indemnify RevolutionParts for any loss or
sales tax liability relating to RevolutionParts’ failure to collect and remit
sales and use taxes for Marketplace Tax Comply Transactions due to insufficient
or incorrect information provided by Seller to RevolutionParts.
10.5. The indemnification obligations set forth in this section
10 are conditioned upon prompt notification to the indemnifying party of any
threatened or actual claim or liability and cooperation with the indemnifying
party to facilitate the settlement or defense of any claim or loss.
If you do not affirmatively enroll in RevolutionParts’s
Marketplace Tax Comply program, then you are deemed to have opted out of such
program and the following terms and conditions are hereby incorporated into
this Agreement and govern the Services provided to you by RevolutionParts.
10.1 Seller Acknowledgements.
Seller agrees and acknowledges the following:
10.1.1. Seller has expressly opted out of the RevolutionParts
Marketplace Tax Comply terms and that it is the taxpayer of record in
connection with all sales by Seller on the RevolutionParts Sites, including
without limitation all sales and use taxes;
10.1.2. Seller agrees to comply with all applicable tax laws,
rules, and regulations, including the collection and remittance of appropriate
sales and use tax;
10.1.3. Seller is solely responsible for determining whether it
must collect and remit sales and use tax to the appropriate governmental
agencies, including calculating the amount of such tax; and
10.1.4. Seller is solely liable for calculating, collecting, and
remitting sales and use tax in accordance with applicable state laws, and shall
be solely liable for related liabilities, including without limitation any
penalties and interest arising out of its collection and remittance of sales
and use tax.
10.2 Seller Indemnification Obligations. Seller agrees to hold harmless, defend, and indemnify
RevolutionParts and its officers, directors, employees, shareholders, and
agents for any liabilities, claims, penalties (including interest), or loss
(including reasonable attorneys’ fees) arising out of or related to Seller’s
calculation, collection, remittance or refunding of sales and use tax in all
applicable jurisdictions or Seller’s breach or violation of its obligations
under this section.
10.3 If Seller includes any applicable taxes in the purchase
price for goods sold on the RP Sites, it shall clearly state to Buyers that
such tax has been included in the purchase price.
12. TERM,
TERMINATION, RENEWAL AND CANCELLATION OF SERVICES.
12.1 Subscription Term;
Automatic Renewal. The initial subscription term shall commence on the
Subscription Start Date specified in the Order Form or in the registration form
between you and RevolutionParts, and shall continue
for a period of one (1) year, unless otherwise specified in the Order Form (the
“Initial Term”). Unless otherwise
specified in the Order Form, following the Initial Term, the Term of this
Agreement shall automatically renew for subsequent 1-year renewal terms (each,
a “Renewal Term” and with the
Initial Term, the “Term” of this
Agreement), subject to the pricing and fee increase terms set forth in this
Agreement, and provided that either party may provide notice of its
cancellation and non-renewal of the Agreement by providing notice thirty (30)
days in advance of the end of the current annual term of this Agreement.
12.2 Additional Services. RevolutionParts reserves the right, in its
sole discretion, to make any changes to the Services that it deems necessary to
maintain or enhance the quality of the Services, the performance of the
Services, improve its market position, for lawful business purposes, or to
comply with applicable law. In the event RevolutionParts offers additional
services or functionality, you may be required to sign an additional order form
and/or pay additional fees. All additional services and functionality provided
by RevolutionParts are subject to this Terms of Service. You may not downgrade or reduce Services
during the Term of your Agreement and there will no refunds for unused
Services.
12.3
Termination by
Customer. Customer may terminate this Agreement by providing written notice (email support@revolutionparts.com) to RevolutionParts thirty (30) days in
advance of the end of your current Subscription term. If you do not notify us
of your intention to terminate within thirty (30) days of the end of your
then-current Subscription term, then your Subscription will automatically renew
for the same Subscription term.
12.4
Effect of
Termination; Cancellation Fee. Upon your cancellation or
termination of the Services in accordance with the provisions of this Section,
we will stop your regular billing. You agree and understand that any
outstanding balance for your usage of the Services or other charges incurred by
you through the effective date of termination or expiration, and the
Subscription Fees that are owed for the remainder of the Term of the Agreement,
will be immediately due and payable in full. We reserve the right to turn over
to third-party collection services any terminated accounts with a remaining
outstanding balance. Upon termination or cancellation of the Services, you will
have thirty (30) days from the effective date of termination of Services to
download and/or retrieve your Customer Data. After thirty (30) days of
termination of your Subscription, we reserve the right to delete all Customer Data.
Deleted data is not recoverable. All sections of this Agreement that by their
nature should survive termination will survive termination, including
ownership, warranty disclaimers and limitations of liability.
12.5 Termination
by RevolutionParts. We may terminate this Agreement and/or your right to
access and use the Services, in whole or in part, at any time and for any
reason, including your breach of this Agreement or your bankruptcy or
insolvency. We reserve the right, but do not have the obligation, to cancel or
suspend your Services if your use of the Services causes a sudden significant
increased draw on system resources (i.e. a Distributed
Denial of Service “DDoS” attack) that in RevolutionParts’s sole opinion impairs
its ability to provide Services to other customers. We will have no liability
to you or any third party because of such termination.
13. TECHNICAL
SUPPORT.
We will provide technical
support related to your use of the Services in accordance with our then-current
policies. RevolutionParts reserves the right to modify the posted current
policies for technical support, at any time at its sole discretion.
14. CONFIDENTIALITY.
We agree not to disclose
your confidential information to any third parties except as required to
provide the Services or as required by a valid court order or subpoena or other
legal obligation. If required by law, we may keep copies of your confidential
information in backups or archives. For purposes of this Agreement,
“confidential information” means any non-public material or information that
you disclose to us under the terms of this Agreement. This section shall not
apply to information that becomes publicly available or is independently
developed without use of the confidential information.
15. DATA USE AND
OWNERSHIP.
15.1 Transaction
Data; Ownership and Use. We may collect statistical data in a variety of
ways, including without limitation Google Analytics, back-end databases, and
orders (“Transaction Data”).
Transaction Data we collect from Services includes visitor count, page views,
conversions, sales, and order information. We use this data for our internal
purposes, including scaling operations, analyzing impacts of product changes,
invoicing, and impact of negative events. We may deliver Transaction Data to
you in new formats to aid you in understanding your own online business
including, graphs, reports, figures and spreadsheets.
We may aggregate Transaction Data across our business for benchmarking purposes
and may share certain de-identified and aggregated statistical figures with all
of our Customers, with our industry, or in our
marketing materials. The published aggregate information will be de-identified
and not reveal any of your individual confidential information. To the extent
that the RevolutionParts generates Transaction Data, the RevolutionParts shall
hold all rights, title, and interest to such Transaction Data, which is owned
solely by the RevolutionParts and may be used by the RevolutionParts for any
lawful purpose, including without limitation the purposes set forth above. To
the extent you are provided with Transaction Data by the RevolutionParts, you
may only use such Transaction Data to further your use of the Services under
the terms of this Agreement and in compliance with the RevolutionParts’s
policies and applicable law. You agree not to disclose or convey any
Transaction Data to any third party or use such Transaction Data for any
purpose other than as required to use the Services.
15.2 Seller
and Channel Operator Data. Seller owns all rights, title, and interest in
and to the catalog data, commercial terms, pricing terms, and other data,
materials, or content that such Seller provides to RevolutionParts through the
RP Marketplace, a Seller Website, or a Channel Operator Marketplace or
otherwise through the Services (the “Seller
Data”). Seller represents and warrants to the RevolutionParts that it has
all necessary consents, authority, and the rights to use such Seller Data for
the purposes contemplated by the Services and agrees to hold RevolutionParts
harmless for any claims related to the use, accuracy, or completeness of such
Seller Data. Seller hereby grants RevolutionParts the limited right to use the
Seller Data as reasonably required to provide the Services hereunder and for
internal lawful business purposes.
15.2 Buyer Data. Buyer owns all rights, title, and interest in
and to data that such Buyer provides to the RevolutionParts through the RP
Marketplace or a Seller-branded marketplace or third-party marketplace; provided that Buyer agrees and acknowledges that
RevolutionParts, Seller, or the third-party marketplace may use such Buyer data
and information as authorized or contemplated under these Terms and as set
forth in the respective Privacy Policy. Buyer hereby grants RevolutionParts the
limited right to use the Buyer Data for the purposes of providing the Services
hereunder, internal lawful business purposes such as benchmarking and
analytics, and for certain marketing and promotional activities in compliance
with its Privacy Policy and subject to required consents, as applicable.
15.3 RP
Marketplace Data.
15.3.1 Seller may
use the personal information and data it receives from Buyers solely in
connection with its use of the Services on the RP Marketplace and subject to
the RevolutionParts’s Privacy
Policy, which controls who may access such data. Seller will only
use Buyer Data that it receives through the RP Marketplace for the purpose of
completing or fulfilling transactions through the RP Marketplace and for no
other purpose. Once a transaction has been fulfilled, Seller may only retain
and use Buyer Data that it receives through the RP Marketplace for the limited
purposes required to comply with applicable data retention policies, applicable
law, or to respond to audit requests.
15.3.2 Notwithstanding, by creating
a Buyer Account, Buyer agrees to hold RevolutionParts harmless for any claims
related to the use, accuracy, or completeness of such Buyer Data.
15.3.2 All
parts availability and pricing data accessed through the RP Marketplace is
owned by the RevolutionParts or its licensors and may not be re-used, re-sold,
or disclosed by Buyers or Sellers or any other third party. The RevolutionParts
does not guarantee or warrant the accuracy or completeness of such data and the
use of such data is on an “as is” basis.
15.4 Services
Intellectual Property. The RevolutionParts owns all intellectual property
rights in and to the Services, the RP Marketplace (including all components
thereof) and all work product, development, inventions, technology, or other
materials provided under this Agreement. RevolutionParts reserves all rights
not expressly granted to you in this Agreement. Any trademarks of the
RevolutionParts shall remain the sole and exclusive property of the
RevolutionParts and you shall not have any right to use any of the
RevolutionParts’s trademarks without its express written consent.
16. PERFORMANCE
WARRANTY AND AVAILABILITY.
RevolutionParts warrants
that the Services will conform to the Services description pursuant to your
Subscription, will be performed consistent with generally prevailing
professional or industry standards. Customer must notify RevolutionParts in
writing of any deficiencies in the Services within thirty (30) days of
discovery of any such deficiencies. Customer’s sole and exclusive remedy for
breach of this warranty shall be the resolution of the deficiencies by
RevolutionParts.
The Services will be
available 24/7, with an uptime of 99.9%, excluding scheduled down-time for
maintenance and repairs or emergency repairs resulting from damages or changes
to the Website caused by a party other than RevolutionParts, delays or failures due to
circumstances beyond RevolutionParts’ reasonable control, or failure of the
Internet or network availability (“Availability”).
Your sole remedy if the Services do not meet the Availability will be the
credits set forth here.
17. FRAUD SCORE;
DISCLAIMER.
The Services include access
to a fraud score feature, which provides fraud risk information on an
order-by-order basis for the limited purpose of evaluating orders. The
parties understand and agree that neither RevolutionParts nor its third party providers are a consumer reporting agency as
defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”), and that the fraud score
services provided by the RevolutionParts do not constitute “consumer reports”
as defined in the FCRA. You understand that any information you provide to
RevolutionParts in order to use the Services has not
been collected by RevolutionParts for credit purposes and is not intended to be
indicative of any consumer’s credit worthiness, credit standing, credit
capacity, or other characteristics listed in Section 603(d) of the FCRA. You
agree that you will not use the Services to determine any consumer’s
eligibility for any product or service to be used by a consumer for personal,
family, or household purposes. You also agree that you will not use the
Services or any information received through the Services in whole or in part (i) as a factor in establishing a consumer’s eligibility for
credit, (ii) as a factor in establishing a consumer’s eligibility for
insurance, (iii) for employment purposes, (iv) in connection with a
determination of an individual’s eligibility for a license or other benefit
granted by a governmental authority, or (v) in connection with any permissible
purpose as defined by the FCRA. Any use of the Services by you in violation of
this paragraph will also constitute an unacceptable use.
YOUR USE OF FRAUD SCORE
SERVICE IS AT YOUR SOLE RISK AND THE FRAUD SCORE SERVICE IS PROVIDED ON AN “AS
IS” AND “AS AVAILABLE” BASIS.
REVOLUTIONPARTS AND ITS
AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT
YOUR USE OF THE SERVICES, INCLUDING THE FRAUD SCORE SERVICES, WILL MEET YOUR
REQUIREMENTS; THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE OR FREE FROM ERROR; THAT ANY INFORMATION OBTAINED BY YOU AS A RESULT OF
YOUR USE OF FRAUD SCORE SERVICE WILL BE ACCURATE OR RELIABLE; OR THAT ANY
DEFECTS OR ERRORS IN THE OPERATION, FUNCTIONALITY OR RESULTS OF ANY PART OF
FRAUD SCORE SERVICE WILL BE CORRECTED.
FOR THE AVOIDANCE OF DOUBT,
YOU EXPRESSLY ACKNOWLEDGE AND UNDERSTAND THAT YOU WILL NOT RELY ON FRAUD SCORE
SERVICE FOR ANY PURPOSE GENERALLY OR ANY PARTICULAR RESULTS OF FRAUD SCORE
SERVICE TO MAKE ANY DECISIONS GENERALLY OR WITH RESPECT TO ANY PARTICULAR CUSTOMER
ORDER; THAT NEITHER REVOLUTIONPARTS NOR ANY OF ITS AFFILIATES OR LICENSORS
PROVIDES ANY GUARANTEE AS TO THE RELIABILITY, COMPLETENESS OR ACCURACY OF FRAUD
SCORE SERVICE (INCLUDING BUT NOT LIMITED TO THE CALCULATION OF THE FRAUD SCORE
ASSOCIATED WITH ANY PARTICULAR CUSTOMER ORDER); AND THAT YOU ASSUME ALL RISK
ASSOCIATED WITH ANY RELIANCE YOU PLACE ON FRAUD SCORE SERVICE.
18. CUSTOMER
MATERIALS.
Customer represents and
warrants to RevolutionParts that any materials, information, text, domain names
graphics, photos, designs, trademarks, logos, or other artwork (“Customer Materials”) furnished to
RevolutionParts for use by RevolutionParts in the set-up of the Services,
delivery of the Services or otherwise in the RevolutionParts platform, are
owned by the Customer, or that the Customer has permission from the rightful
owner to use each of these elements, and will indemnify, hold harmless,
protect, and defend RevolutionParts and its subcontractors from any claim or
suit arising from the use of all Customer Materials furnished by the Customer
to RevolutionParts.
19. INTELLECTUAL
PROPERTY OWNERSHIP AND INFRINGEMENT INDEMNITY.
The Services contain
copyrighted material, trademarks, and other proprietary information, including
without limitation, text, software, photos, video, graphics, and the entire
contents of which are protected under the United States of America and
international intellectual property laws (“RevolutionParts
Content”). The copyright in all RevolutionParts Content and material
provided in the Services is held or licensed by RevolutionParts, provided that
as between the Parties, Customer Materials provided to RevolutionParts by the
Customer are owned by Customer. You may not modify, publish, transmit,
participate in the transfer or sale, create derivative works, or in any way
exploit any of the RevolutionParts Content in whole or in part. Except as
expressly permitted by RevolutionParts, nothing in the Services may be copied,
reproduced, distributed, republished, downloaded, displayed, posted
or transmitted in any form or by any means, including, but not limited to,
electronic, mechanical, photocopy, recording, or otherwise, without the prior
written permission of RevolutionParts. Any unauthorized use of any content contained
in the Services may violate copyright laws, trademark laws, the laws of privacy
and publicity, and communications regulations and statutes.
YOU WILL INDEMNIFY, DEFEND,
AND HOLD HARMLESS THE REVOLUTIONPARTS FOR ANY CLAIMS BY THIRD PARTIES FOR YOUR USE
OF THE SERVICES OR SERVICES, OR FOR INFRINGEMENT OF COPYRIGHTS, TRADEMARKS,
PROPRIETARY RIGHTS OR ANY OTHER HARM RESULTING FROM A SUBMISSION OR CUSTOMER
MATERIAL TO REVOLUTIONPARTS BY YOU.
Customer will be granted a
revocable, limited license to use the databases, design and graphics contained
in a Services, solely for use within such Services and subject to all
applicable end user license agreements incorporated herein by reference. All
rights in photos, graphics, source code, work-up files, data, databases and computer programs remain the property of their
respective owners. RevolutionParts and its subcontractors retain the right to
display graphics and other web design elements in a Services as examples of
their work in their respective portfolios. For this purpose, Customer grants to
RevolutionParts a limited right and license during the term of this Agreement
to use Customer’s name, trademarks and logos (a) when referring to clients in
RevolutionParts marketing materials; (b) on RevolutionParts own
Website, (c) in printed and online advertising, publicity, directories,
newsletters, and updates describing RevolutionParts Services, and, (d) in
applications reasonably necessary and ancillary to the foregoing. Customer may
use RevolutionParts trade name, trademarks, and service marks
(collectively, “RevolutionParts Marks”) in advertising and publicity in
conjunction with the offering of the Services via the Services, provided that
Customer shall submit copy to RevolutionParts for its prior written approval, and provided further that under no circumstances
shall such use imply that RevolutionParts endorses, sponsors, certifies,
approves or is responsible for Customer Materials. Notwithstanding the
foregoing, Customer need not obtain RevolutionParts prior written approval where use of
RevolutionParts’ Marks is limited to inclusion in a list of
systems via which Services are available.
20.WARRANTY
DISCLAIMER AND LIMITATION OF LIABILITY.
With the
exception of the express warranties set
forth in this Agreement, RevolutionParts EXPRESSLY DISCLAIMS ANY OTHER
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY PART THEREOF,
INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES, NON-INFRINGEMENT,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN
ADDITION, RevolutionParts EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO
ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE SERVICES OR ANY PART HEREOF.
NEITHER PARTY SHALL BE
LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY SPECIAL, OR
CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, OR LOST PROFITS, REVENUES, OR
SAVINGS, EVEN IF THE PARTY HAS BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF
THE POSSIBILITY THEREOF. REVOLUTIONPARTS’ LIABILITY TO YOU FOR ANY AND ALL
LOSSES, CLAIMS, DAMAGES, OR LIABILITY OF ANY KIND (INCLUDING CONTRACT OR TORT),
WILL NOT EXCEED THE AMOUNTS PAID FOR THE PRIOR ONE MONTH PERIOD, EXCEPT AS
OTHERWISE SET FORTH HEREIN. YOU UNDERSTAND AND AGREE THAT THE TERMS OF THIS
AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT, BUT FOR THIS AMOUNT. THE
LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY
LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE.
YOU AGREE THAT
REVOLUTIONPARTS PROVIDES NO REPRESENTATIONS AND WARRANTIES THAT ACCESS TO THE
SERVICES WILL BE UNIMPEDED AND YOU AGREE THAT ACCESS TO THE SERVICES MAY BE
SUSPENDED IN THE CASE OF TECHNICAL ERRORS, VIRUSES, AND THE LIKE.
INFORMATION FROM THIRD
PARTIES CONTAINED IN THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL
ERRORS. UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, SHALL
REVOLUTIONPARTS BE LIABLE FOR ANY DAMAGES, UNDER ANY CIRCUMSTANCES, ARISING OUT
OF INCORRECT INFORMATION OR DATA PROVIDED BY A THIRD PARTY THROUGH THE
SERVICES, INCLUDING WITHOUT LIMITATION PRICING, PRODUCT AVAILABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE.
21. PRIVACY.
21.1. RevolutionParts
requires, and you hereby warrant and represent that any data submitted to
RevolutionParts in connection with your use of the Services, has not been
collected, stored, or transferred to RevolutionParts in violation of any law,
regulation, or contractual obligation applicable to you. You shall cause each
Buyer to consent prior to the collection of data in a manner consistent with
applicable law. You shall make the terms of any agreement with such Buyers
include express agreement with RevolutionParts’ Privacy
Policy and these Terms (the “Mandatory Terms”).
21.2. You
cannot make representations or warranties on behalf of RevolutionParts. If you
make any claim, representation or warranty regarding the Services that is
different from or in addition to those set forth in this Agreement, you will be
solely and exclusively responsible for such claim, representation or warranty
to the extent such representation or warranty differs from those in this
Agreement and you shall indemnify RevolutionParts for any damages whatsoever
incurred or arising from any such claim, representation or warranty made by
you. As between RevolutionParts and you, you are responsible for all acts and
omissions of your Buyers in connection with their use of the Services. You will
promptly notify us if you become aware of any prohibited activities, and you
will reasonably cooperate with RevolutionParts, in connection with any
prohibited activities of any Buyer using the Services.
21.3. To
the extent you provide personally identifying information of Buyers to
RevolutionParts, its affiliates, or any of their respective officers,
directors, shareholders, employees, licensees, agents, successors
or assignees, that personally identifying information may be stored and
processed in the United States of America. By using the Services, you consent
to the transfer of such information outside of the country in which you provide
the information, and acknowledge that you have
provided any required notice to, and obtained any required consent from, Buyers
for such transfer and for the use of RevolutionParts cookies, flash tokens,
HTML5, other technologies, and/or unique identifiers employed to identify a
Buyer’s device.
21.4. Customer
represents that all End purchaser information has been collected (i) in accordance with applicable laws, including marketing
and privacy laws; (ii) pursuant to a privacy policy that informs Buyers that
Customer may share Buyer data with third parties for the provision of services
or products to Buyers; and (iii) with End purchasers’ consent.
21.5. To
the extent applicable, the data that RevolutionParts collects from a Buyer or
Seller from individuals located in the EEA, may be transferred to,
and stored at a destination outside of the European Economic Area (“EEA”). It may also be processed by
staff operating outside the EEA who work for RevolutionParts or for one of its
service providers. Such staff may be engaged in, among other things, the
fulfilment of your order, the processing of your payment details and the provision
of support services. The parties agree that any processing of Customer Data
that is within the jurisdictional scope of the General Data Protection
Regulation (GDPR) or the California Consumer Protection Act (CCPA), will be
subject to the Data Protection Addendum,
which to the extent applicable, is hereby incorporated by reference. By
submitting your personal data, you agree to this transfer, storing or
processing. RevolutionParts will take all steps reasonably necessary to ensure
that your data is treated securely and in accordance with our Privacy
Policy.
22. INJUNCTIVE
RELIEF.
Customer acknowledges that a
breach of any confidentiality or proprietary rights provision of this Agreement
may cause RevolutionParts irreparable damage, for which the award of damages
would not be adequate compensation. Consequently, RevolutionParts may seek an
injunction to prevent Customer from taking any and all
acts in violation of those provisions, which remedy shall be cumulative and not
exclusive, and RevolutionParts may seek the entry of an injunction enjoining
any breach or threatened breach of those provisions, in addition to any other
relief to which RevolutionParts may be entitled at law or in equity.
23. GOVERNING LAW.
This Agreement shall be
construed and governed by the laws of the State of Delaware, without regard to
the principles of conflict of laws thereof.
24. NOTICES.
Legal notices may be sent
to legal@revolutionparts.com.
Notices to Customer may be sent either to the email address supplied in
Customer’s account or to the address supplied by Customer as part of its
registration data. In addition, RevolutionParts may broadcast notices or
messages through the Website to inform of changes to the Website or other
matters of importance, and such broadcasts shall constitute notice to Customer
to the extent permitted by applicable law. Any notices or communication under
this Agreement will be deemed delivered to the party receiving such
communication (a) on the delivery date if delivered personally to the party;
(b) two business days after deposit with a commercial overnight carrier, with
written verification of receipt; (c) five business days after the mailing date,
if sent by mail, return receipt requested; (d) on the delivery date if
transmitted by email; or (e) within three (3) days after RevolutionParts posts
a notice on the Website.
25. FORCE MAJEURE.
RevolutionParts will not be
liable or responsible for any failure to perform, or delay in performance of,
any of its obligations that is caused by events outside its reasonable control
(“Force Majeure Event”). A Force
Majeure Event includes any act, event, non-happening, omission or accident
beyond RevolutionParts’ reasonable control including, but not limited
to, restrictions of law, regulations, orders, or other governmental directives,
labor disputes, acts of God, pandemics, epidemics, third party mechanical or
other equipment breakdowns, terrorist attacks, fire, explosions, fibre optic cable cuts, interruption or failure of
telecommunications or digital transmission links, Internet failures or delays,
storms or other similar events.
26. NO THIRD PARTY BENEFICIARIES.
No person or entity not a
party to this Agreement will be deemed to be a third
party beneficiary of this Agreement or any provision hereof.
27. SEVERABILITY.
If any provision of this
Agreement is held by a court of competent jurisdiction to be contrary to law,
such provision shall be changed and interpreted so as to
best accomplish the objectives of the original provision to the fullest extent
allowed by law and the remaining provisions of this Agreement will remain in
full force and effect.
28. WAIVER AND
AMENDMENT.
If RevolutionParts fails to
insist upon strict performance of Customer’s obligations under any of these
terms and conditions, or if RevolutionParts fails to exercise any of the rights
or remedies to which it is entitled under this Agreement, this will not
constitute a waiver of such rights or remedies and will not relieve Customer
from compliance with such obligations. No waiver by RevolutionParts of any
default will constitute a waiver of any subsequent default, and no waiver by
RevolutionParts of any of these terms and conditions will be effective unless
it is expressly stated to be a waiver and is communicated to Customer in
writing.
RevolutionParts may amend
this Terms of Service at any time by
posting the amended or updated version of this Terms of Service on this Website
and providing you with notice, which may be through the Services, via email,
and/or by notification on this Website, and a 15-day review period of such
amended or updated Terms of Service. The amended and updated Terms of Service
shall be effective following such fifteen (15) day period unless Customer
provides RevolutionParts with written notice of rejection of the updated Terms
of Service
29. ASSIGNMENT.
Customer may not assign or
transfer this Agreement, in whole or in part, without the RevolutionParts’ prior consent, and absent such consent, any
attempted transfer or assignment is void; provided that Customer may assign
this Agreement and its rights and obligations under the Agreement to a parent
entity or otherwise in connection with the transfer or sale of all or
substantially all of its business or in the event of a merger or similar change
in control transaction. RevolutionParts may assign or transfer this Agreement
and/or subcontract some or all of its obligations
hereunder at any time.
30. GEOGRAPHIC
RESTRICTIONS.
Software, functionality,
and/or features (collectively, “Service
Functionality”), that may be available on or through the Services from
time-to-time, is subject to United States Export Controls and all applicable
laws and regulations. No Service Functionality from the Services (or products)
may be downloaded or exported (a) into (or to a resident of) any country which
the United States has embargoed goods; or (b) anyone on the United States
Treasury Department’s list of Specially Designated Nationals or the United
States Commerce Department’s Table of Deny Orders. By downloading or using any
Service Functionality, Customer represents and warrants that it (and its
Buyers, where applicable) are not located in, under the control of, or a
national or resident of any such country or on any such list. Although the
Services may be accessible worldwide, RevolutionParts makes no representation
that materials on the Services are appropriate or available for use in
locations outside the United States of America and accessing them
from territories where their contents are illegal, is prohibited. Those who
choose to access the Services from other locations do so at their own
initiative and are responsible for compliance with local laws. Any offer for
any product, service, and/or information made in connection with the Services
is void where prohibited.
31. INTEGRATED
AGREEMENT.
This Agreement, together
with the Website Use Policy, the Privacy
Policy, and any applicable Amendment and any additional or special
subscription and payment terms provided to you, constitute the sole and entire
agreement between Customer and RevolutionParts with respect to the Services and
supersedes all prior and contemporaneous understandings, agreements,
representations, warranties or terms and conditions, both written and oral,
with respect to the Services. Any additional services not specified in this
Agreement must be authorized in writing. Paragraph headings are included for
convenience and are not to be used to interpret this Agreement.
32. CAUSES OF ACTION.
The parties agree that any cause of action arising out of
this Agreement, or the Services must commence within one (1) year after the
cause of action accrues.
33. WAIVER OF JURY TRIAL; NO CLASS ACTION.
EACH PARTY IRREVOCABLY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING, WHETHER BASED IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY. EACH PARTY FUTHER AGREES TO WAIVE THE RIGHT
TO PARTICIPATE IN A CLASS ACTION. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS
AGAINS THE OTHER ONLY IN ITS INDIVIDUAL OR ENTITY CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING.