Terms and Conditions

Overview

Acceptance of this proposal creates a legally-binding agreement between FixedOPS Marketing LLC (“Provider”) and the Dealership(s) (“Dealership”) listed in this agreement.  By e-signing this agreement, the Dealership Representative acknowledges that he/she has the rights to enter into a legal agreement on behalf of the Dealership(s), and agrees to use e-signatures as a binding and legal enforceable method forming this agreement.  

E-Signature

All parties agree that this agreement may be electronically signed.  The parties agree that the electronic signatures appearing on this agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. 

Venue

This agreement is entered into between FixedOPS Marketing LLC (“Provider”), a Texas-based Limited Liability company with offices located at 608 N F.M. 1417, Sherman, TX 75090, and the dealership named in this proposal (hereby “Dealership”). 

Terms

Provider and Dealership enter into this agreement as of the date of acceptance of this proposal. 

Unless otherwise stated in this proposal, this agreement is a month-to-month agreement, where any party may terminate the agreement with notice as defined in this agreement.  The Dealership retains the right to cancel at any time, and agrees to pay for services through the calendar month in which services were canceled. Provider retain rights to terminate services for non-payment per the terms in this agreement, or with 30-days notice.

Dealership agrees to use the products within the scope as provided during the sales presentation. Work beyond the scope of the sales presentation will be quoted and billed when agreed to by both parties.

Payment of Fees

Dealership agrees to pay Provider all fees associated the products and services used within 15 days of receipt of invoice. Failure to pay within 15 days will result in a 5% per month late charge added to the past due invoice.  Failure to pay within 30 days will result in the termination of services, although past due invoices will continue to accrue late fees until paid.

No Warranty

Dealership acknowledges and agrees that except as otherwise be expressly stated, the products provided by Provider are provided “As-is”, that provider makes no representation or warranty with respect to the accuracy, completeness or currency of the purchased products, and that except as may otherwise be expressly provided in this agreement, all warranties, conditions, representations and guarantees, whether express or implied, and whether arising by law, custom, oral or written statements of provider or its agents, employees, or other representatives, or hereby excluded and disclaimed. Without limiting the foregoing, provider expressly disclaims any warranty or liability with respect to defects in the design or operation of any of purchased products.  Dealership acknowledges that is it a sophisticated party and that is recognized and agrees that the terms in this section are an integral part of provider’s pricing and are an important factor in provider’s willingness to enter into this agreement.

Limited Liability

Notwithstanding any other provision of this agreement, in no event shall either party, or any of it’s sub-contractors, employees, representatives or affiliates be liable under any contract, negligence, strict liability, or other legal or equitable theory, whether arising under this agreement or any other agreement between the parties, for:

(i) Any consequential, indirect, punitive, incidental, exemplary or special damages, whether foreseeable or unforeseeable (and whether or not provider or dealership has been advised of the possibilities of such damages), whether based upon lost goodwill, lost profits, or use of money, loss of data, or interruption in its use of availability, stoppage of work, impairment of assets or otherwise,

(ii) Any amount in excess of the aggregate amount of fees paid to provider hereunder during the one (1) month period prior to the date that the claim giving rise to liability arose; provided, however, the limitation of this subsection

(iii) Shall not serve to limit provider’s rights to recover for fees owed but not paid, not shall recovery of such owed and unpaid fees count against such cap on provider’s recoverable damages.

Governing Law

This agreement is made under and will be constructed under the laws of the state of Texas without regard to the conflict of laws nor provisions of those laws.  The parties hereby submit to the jurisdiction of the state and federal courts located in Grayson County, Texas and agree that said courts have the sole and exclusive jurisdiction over all disputes and causes of action involving such party that arise out of or relate to this agreement.

Relationship of the parties

Nothing in this agreement shall be construed to create any franchise, joint venture, trust, or commercial partnership or any other partnership relationship for any purpose whatsoever other than as expressly provided herein. Each party agrees and represents that is an independent contractor and its personnel are not agents or employees of the other party for federal or state tax purposes or any other purposes whatsoever, and are not entitled to any employee benefits from the other party. Each party assumes sole and full responsibility for its acts and each party and its personnel have no authority to make commitments or enter into contracts on behalf of, or bind, or otherwise obligate the other party in any manner whatsoever, except as expressly provided herin. Each party is solely responsible for the compensations of personnel assigned by such party to perform services hereunder, and payment of worker’s compensation, disability, and other income and other similar benefits, unemployment and other similar insurance and for withholding income and other taxes and social security unless ordered by a Federal Agency or Court of Law.

Severability

If any term contained in the agreement is found to be invalid, illegal or unenforceable for any reason, the remainder of the provisions shall continue in full force and effect, and it is in the intent of the parties that a valid, legal and enforceable provision with the same intent and economic effect be substituted.

Counterparts

This agreement may be executed in two or more identical counterparts (or facsimiles thereof), each of which will be an original but which collectively will constitute one and the same instrument.  Full agreements will consist of this document plus additional terms and conditions agreed to in writing during the sales process, and executed via electronic proposal.

Construction

The parties further acknowledge that they have thoroughly reviewed this agreement and bargained for the terms herein.  Accordingly, this agreement will be constructed without regard to the party or parties responsible for its preparation and will be deemed to have been prepared jointly by the parties.

Confidentiality

Dealership agrees that the programs and services provided by Provider are proprietary and will not share technical details of said products and services without express written permission from a responsible party at Provider.