Effective as of September 05, 2020
Thank you for using the Dealer Curator Services (as defined below), a cloud-based inventory and ads management services platform that permits registered users to collect, manipulate and manage inventory and advertisements online and integrate the content into other advertising platforms using Curator APIs. Dealer Curator services is managed by Dealer Curator, LLC. Before reading this Dealer Curator Terms of Service (this “Agreement” or these “Terms”), we strongly encourage you to read the Legal FAQ located at https://www.dealercurator.com/legal-faq.html to familiarize yourself with the Dealer Curator Services.
To be eligible to register for a Dealer Curator account and use Dealer Curator’s Services, you must review and accept the terms of this Agreement by clicking on the “Create Account” button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE DEALER CURATOR SERVICES, YOU AGREE TO THESE TERMS AND CONDITIONS WITH DEALER CURATOR (“DEALER CURATOR”) AND DEALER CURATOR, LLC ("DEALER CURATOR"). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “CREATE ACCOUNT” BUTTON AND YOU SHOULD NOT USE THE DEALER CURATOR SERVICES.
In this Agreement, “you”, “your” and “Customer” will refer to you. If you are registering for a Dealer Curator account or using the Dealer Curator Services on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Dealer Curator that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization). The exception to this is if that organization has a separate contract with Dealer Curator covering one or more accounts and use of the Dealer Curator Services, in which case that contract will govern the Dealer Curator Services with respect to those accounts only.
- DEALER CURATOR DOES NOT PROVIDE WARRANTIES OR INDEMNITIES FOR THE DEALER CURATOR SERVICES, AND THESE TERMS LIMIT DEALER CURATOR’S LIABILITY TO YOU.
- DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE DEALER CURATOR SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
“Confidential Information” includes the Software Service, THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING PRICING, software and other related materials furnished by Dealer Curator, any information, business plan, concept, idea, know-how, process, technique, program, design, formula, algorithm or work-in-process, any engineering, manufacturing, marketing, technical, financial, data, or sales information, or any information regarding suppliers, customers, employees, investors, or business operations, and any other information or materials, whether in written, or graphic, or any other form or that is and whether disclosed orally, or electronically, whether tangible or intangible and in whatever form or medium provided, or otherwise which is learned or disclosed in the course of discussions, studies, or other work undertaken between the parties disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.
“Curator Services” means the SaaS-based inventory, search trends and ads management services, programs, functions and platform provided by Dealer Curator to you (including the Curator APIs, Documentation and technical support that may be made available by Dealer Curator to you in connection with such services), and subsequent updates or upgrades of any of the foregoing made generally available by Dealer Curator.
“Customer Content” means content and other material supplied or made available to Dealer Curator by you (or, if you are an agency, your clients for which you are an agency of record) through the use of or access to the Dealer Curator Services.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Dealer Curator for the Curator Services.
2.1 These Terms. may revise these Terms from time to time. If Dealer Curator does revise these Terms, the revised Terms will supersede prior versions. Unless Dealer Curator says otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. Dealer Curator will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Dealer Curator has on file. For other revisions, Dealer Curator will update the effective date of these Terms at the top of the page. Dealer Curator encourages you to check the effective date of these Terms whenever you visit Dealer Curator’s website or account portal. Your continued access or use of the Curator Services constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using the Dealer Curator Services and Dealer Curator is not obligated to provide you with the Curator Services.
2.2 Curator Services You acknowledge that Dealer Curator may change, deprecate or republish Dealer Curator APIs for any Dealer Curator Services or feature of the Dealer Curator Services from time to time, and that it is your responsibility to ensure that calls or requests you makes to the Dealer Curator Services are compatible with then-current Dealer Curator APIs for the Dealer Curator Services. Although Dealer Curator endeavors to avoid changes to the Dealer Curator APIs or Dealer Curator Services that are not backwards compatible, if any such changes become necessary Dealer Curator will endeavor to notify you at least thirty (30) days prior to Dealer Curator’s implementation of any such incompatible changes to the Dealer Curator Service of which it becomes aware.
3.1 Provision of Services. Subject to the terms and conditions of this Agreement and the Dealer Curator Acceptable Use Policy (available at https://www.dealercurator.com/aup.html (the “AUP”), Dealer Curator will use commercially reasonable efforts to make the Dealer Curator Services available to you pursuant to this Agreement, and hereby grants you a non-exclusive right to access and use the Dealer Curator Services to manage Customer Content. If Customer is an agency, such rights may, as agreed by the parties, be restricted to access and use on behalf of only certain Customer clients.
3.2 Restrictions The rights granted herein are subject to the following restrictions (the “License Restrictions”):
3.3 Account Registration; Other Customer Responsibilities
4.1 Fees. You agree to pay the subscription fees, additional usage fees and other fees set forth in Dealer Curator’s schedule of fees, as may be updated from time to time, or any other order forms for the Dealer Curator Services ordered by you and accepted in writing by Dealer Curator. Except as otherwise mutually agreed upon in writing, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
4.2 Payment. Subject to certain credit requirements as determined by Dealer Curator, Dealer Curator may let you pay amounts due under these Terms in arrears. If Dealer Curator lets you do that, you will make all of the payments due hereunder within thirty (30) days of the date of the invoice. Subject to the fee dispute resolution procedures below, if you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then Dealer Curator may assess and you must pay a late fee and/or suspend your account until you pay the amount you are overdue plus the late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less.
4.3 Fee Disputes. You must notify Dealer Curator in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to Dealer Curator within thirty (30) days of the applicable charge and Dealer Curator will work together with you to resolve the applicable dispute promptly. If you do not provide Dealer Curator with this written notice of your fee dispute within this 30 day period, you will not be entitled to dispute any fees paid or payable by you.
4.4 Suspension. If your use of the Dealer Curator Services exceeds the amounts prepaid by you or if you fail to pay any amounts due by you, Dealer Curator may suspend your account without prior notice to you. Dealer Curator will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of your account pursuant to this section.
4.5 Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by you. You will not withhold any taxes from any amounts due to Dealer Curator.
5.1 Dealer Curator’s Ownership Rights. As between the parties, Dealer Curator exclusively owns all right, title and interest in and to the Dealer Curator Services. Except for the express rights granted hereunder, Dealer Curator reserves all rights, title and interests in and to the Dealer Curator Services and Dealer Curator’s Confidential Information.
5.2 Dealer Curator Marks. Dealer Curator hereby grants you a non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Dealer Curator (each, a “Dealer Curator Mark”) for the purpose of promoting or advertising that you use the Dealer Curator Services. In using Dealer Curator Marks, you may not: (a) display a Dealer Curator Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Dealer Curator; (b) use Dealer Curator Marks to disparage Dealer Curator or its products or services; or (c) display a Dealer Curator Mark on a site that violates any law or regulation. Furthermore, Dealer Curator may modify any Dealer Curator Marks at any time, and upon notice, you will use only the updated Dealer Curator Marks. Other than as permitted in this Section, you may not use any Dealer Curator Marks without prior written consent. All use of the Dealer Curator Marks will be subject to any trademark usage guidelines that Dealer Curator may provide from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of Dealer Curator.
5.3 Feedback. Customer may from time to time provide Dealer Curator suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Dealer Curator Services. Dealer Curator will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Dealer Curator will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.4 Customer Content. As between the parties, the Customer Content and Customer Applications will be owned by you (or, if Customer is an agency, Customer’s client(s)). You hereby grant to Dealer Curator a non-exclusive, worldwide license to copy, distribute and use Customer Content only in connection with providing the Dealer Curator Services.
5.5 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5.6 Aggregated Information. Notwithstanding anything to the contrary, Dealer Curator shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Dealer Curator Services and shall be free (during and after the term hereof) to (a) use such data and other information to develop and improve the Dealer Curator Services and other Dealer Curator offerings, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify you or any individual.
6.1 Customer. You warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Applications and Customer Content in connection with the Dealer Curator Services as contemplated herein. Without limiting the foregoing, if Customer is an agency, it warrants that it has been granted the necessary rights from its client(s) to use the Dealer Curator Services and Customer Content related to such client(s) on such client(s)’ behalf.
6.2 DISCLAIMER. THE DEALER CURATOR SERVICES AND ANY BETA SERVICES (AS DEFINED BELOW) ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. DEALER CURATOR HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE DEALER CURATOR SERVICES AND BETA SERVICES. WITHOUT LIMITING THE FOREGOING, DEALER CURATOR DOES NOT WARRANT THAT THE DEALER CURATOR SERVICES OR BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
6.3 BETA SERVICES. FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH DEALER CURATOR WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY DEALER CURATOR. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. YOU OR DEALER CURATOR MAY TERMINATE YOUR ACCESS TO THE BETA SERVICES AT ANY TIME.
You will defend, indemnify and hold Dealer Curator and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the provision of any Customer Application (“Claim”). Dealer Curator and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. Dealer Curator reserves the right, at your expense, to retain separate counsel for themselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section. You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Dealer Curator in connection with any Claim. You will also be liable to Dealer Curator for any costs and attorneys’ fees Dealer Curator incurs to successfully establish or enforce Dealer Curator’s right to indemnification under this Section.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL DEALER CURATOR BE LIABLE TO YOU FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF DEALER CURATOR HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR (II) DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
9.1 Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.
9.2 Termination and Suspension. Dealer Curator may terminate or suspend your account in the event that you make a termination or suspension request or commit any material breach of any provision of these Terms and fail to fix that breach within five (5) days after written notice of that breach. Dealer Curator may also terminate or suspend your account immediately for cause if: (a) you violate (or give Dealer Curator reason to believe you have violated) the AUP; (b) there is reason to believe the traffic created from your use of the Dealer Curator Services or your use of the Dealer Curator Services is fraudulent or negatively impacting the operating capability of Dealer Curator Services; (c) Dealer Curator determines, in its sole discretion, that providing the Dealer Curator Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Dealer Curator Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If Dealer Curator suspends your account, Dealer Curator will make a reasonable attempt to notify you. Note that no refund will be provided in the event of any suspension or termination of your account.
9.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
10.1 Export Controls. The Dealer Curator Services, including any software Dealer Curator may provide in connection with the Dealer Curator Services, may be subject to applicable export control laws and economic sanctions regulations. In receiving this software or the Dealer Curator Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and the Dealer Curator Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Dealer Curator Services. These laws include restrictions on destinations, users and end use. Without limitation, you may not transfer any such software or other aspect of the Dealer Curator Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of Dealer Curator’s software and the Dealer Curator Service if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
10.2 Publicity. You agree that Dealer Curator may refer to your name and trademarks in Dealer Curator’s marketing materials and website; however, Dealer Curator will not use your name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without your prior written consent (which may be by email).
10.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. In addition, you agree that Dealer Curator may have any of its obligations performed through an affiliate of Dealer Curator, provided that Dealer Curator will remain responsible for its obligations hereunder and will be liable for such affiliate’s performance as if it were Dealer Curator. Dealer Curator may assign receivables under this Agreement for purposes of debt collection and financing arrangements. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4 Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5 Amendment. Dealer Curator may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. Dealer Curator will notify you via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 days from the sending of such notice, such non-objection may be relied upon by Dealer Curator as your consent to such amendment. Dealer Curator will inform you about its right to object and the consequences of non-objection in such notice. If you object to such amendment, you must do so in writing by written notice to Dealer Curator delivered within such 30-day notice period, in which case Dealer Curator may elect by written notice (which may be sent by email) to either (a) consider the amendment request rejected and have this Agreement continue without such amendment or (b) terminate this Agreement immediately. Subject to the foregoing, no amendment or modification to this Agreement will be effective unless assented to in writing by both parties.
10.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.8 Governing Law. The enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from such arbitration provisions, this Agreement will be governed by the laws of the State of New York, USA, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of New York, New York, USA, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.9 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to you must be sent to your email or other address as set forth in your account information. Notices to Dealer Curator must be sent to the following address: Dealer Curator, 7859 Clara Drive, Suite 3302, Plano, TX 75024, Attn: Legal.
10.10 Entire Agreement. This Agreement comprises the entire agreement between you and Dealer Curator with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Dealer Curator, its agents or employees will create a warranty.
10.11 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.12 Governing Terms. Dealer Curator provides the Dealer Curator Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If you (or any of your customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Dealer Curator Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Dealer Curator Services were developed fully at private expense.
10.13 Interpretation. For purposes hereof, “including” means “including without limitation”. All dates and times set forth in this Agreement or any related document are in relation to Greenwich Mean Time (GMT), unless otherwise specified.
11.1 First Try Customer Support. If you have any issues with the Dealer Curator Services or Dealer Curator, you must try to resolve the issue first through Dealer Curator customer support
11.2 Agreement to Arbitrate. If the parties are not able to the dispute through Dealer Curator customer support, you and your affiliates on one hand, and Dealer Curator and any of Dealer Curator’s affiliates on the other hand, all agree to resolve any dispute arising under these Terms, or under Dealer Curator’s Privacy Policy, or in relation to the Dealer Curator Services by binding arbitration in Plano, Texas, or in another location that both parties agree to. This applies to all claims under any legal theory, unless the claim fits in one the exceptions below. It also applies even after you have stopped using your Dealer Curator account or have deleted it. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.
11.3 Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Dealer Curator and its affiliates on the other hand, agree that the parties will go to court to resolve disputes relating to (a) your, your affiliate’s, Dealer Curator’s or Dealer Curator’s affiliates intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or (b) your violation of the AUP. Also, either party can bring a claim in small claims court either in Plano, Texas, or the county where you live, or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
11.4 Details of Arbitration Procedure.
11.6 Class Action Waiver. Both you and your affiliates, on one hand, and Dealer Curator and its affiliates on the other hand, agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Dealer Curator and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Dealer Curator customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of the Terms will still apply.