Online Dealer Agreement

MVP Dealer – Online Dealer Agreement

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This Dealer Agreement (“Agreement”) is made and entered into by and between Administrator and Dealer as identified below and shall be deemed effective as of the date set forth in the signature block (“Effective Date”). This Agreement shall provide the terms upon which Dealer is permitted to promote and sell extended service contracts, ancillary products and limited warranties (collectively “Protection Plans”) to those customers of Dealer who purchase/receive Protection Plans (“Protection Plan Holder(s)”) through a program designed and administered by Administrator (“Program”). Dealer is in the business of repairing new and/or used vehicles/crafts and desires to provide repair services to Protection Plan Holders. Such Protection Plans may be sold to individuals and claims may be serviced in the manner specified in Exhibit A.

1. Program Overview. The Program shall be comprised of a variety of Protection Plans and shall cover the costs of repair and/or replacement of the components as set forth in the end-user agreement, which outlines the terms of service associated with the Protection Plans (“Terms and Conditions”). Administrator shall be solely responsible for developing the list of qualified vehicle/crafts, guidelines and underwriting parameters of the Protection Plan offerings. Administrator shall provide, Dealer with policies and procedures in connection with the promotion, sale, payment, repair and reporting of sales, claims and such other related topics of the Protection Plans (“Procedure Manual”). Administrator may at any time revise its procedures, coverages, rules, and regulations and Dealer shall promptly conform to the Procedure Manual and any such revisions. The program summary is as set forth in Exhibit A.
2. Term. The term of this Agreement will begin on the Effective Date and continue until terminated, by either party, upon written notice
by the terminating party and the expiration of the thirty (30) day period following notice.
3. Termination.
 3.1. Convenience. This Agreement may be terminated by Administrator immediately, if Dealer fails to remit to Administrator, on a consistent and timely basis, any and all amounts due to Administrator. Termination for failure to remit such amounts shall be effective immediately upon receipt by Dealer of written notice from Administrator.
 3.2. Automatic. This Agreement shall terminate automatically and in its entirety, without notice from Administrator, if (a) Dealer has made
an assignment for the benefit of creditors (b) Dealer has permitted or suffered any attachment, levy, or execution agreement.
 3.3. Cause. In the event a party (a) materially defaults in the performance of any of its duties or obligations under this Agreement, or (b) commits any fraud in connection with its performance under this Agreement, the other party may terminate this Agreement, in its entirety, by providing written notice to the defaulting or fraudulent party. Termination of this Agreement for fraud or material breach shall be effective immediately upon receipt of written notice by the non-terminating party.
 3.4. Continued Obligations. Termination of this Agreement, (a) shall not alter Dealer’s responsibilities with respect to Protection Plans issued prior to the date of termination and the handling of refunds and each other payment obligation set forth herein; and (b) shall not alter the responsibilities of Administrator with respect to Protection Plans issued and paid for prior to the date of such termination.
 4 Dealer Representations. Dealer represents and warrants that it shall not, directly or indirectly, make any misrepresentation to a customer regarding: (a) the nature, status, or coverage of the Protection Plans, (b) the extent of Dealer’s relationship with the customer or its role with respect to the Protection Plans, (c) the identity of the administrator or obligor of the Protection Plans, or (d) the status of the manufacturer’s warranty. Dealer shall provide accurate coverage, cancellation and price-related information to customers. Dealer agrees that it will comply with the cancellation and refund provisions and all other provisions of the Protection Plans. To the extent applicable, Dealer shall make its privacy policy available on its website. Dealer represents and warrants that it shall not: (a) alter, waive, modify or discharge any of the terms and conditions of any Program or Protection Plan or other agreement offered by Administrator; or (b) alter, waive or modify any policies, procedures, rules or criteria established by Administrator.
5. Intellectual Property. Neither party shall use the registered trademarks, service marks, logos, name or any other proprietary designations of the other party or any of its parent corporations or subsidiaries without the prior written consent of the other party of the proposed use. Furthermore, neither party shall issue any press release or disclosure to the general public regarding (a) the terms or execution of this Agreement; or (b) in any way make reference to its relationship with the other party or the other party’s related entities, without the prior written consent of the other party.
 6. Indemnification. Dealer shall indemnify, defend and hold Administrator, its parent corporation, related entities, and their respective officers, directors, employees, and agents harmless from any and all claims, actions, demands or liabilities, including, but not limited to attorneys’ fees and other legal costs, arising out of or resulting from: (a) any act or failure to act by Dealer (including its agents, contractors, subcontractors, employees, or any other person directly or indirectly employed by Dealer while engaged in the performance of the services) which causes harm or damage to any person or property, (b) any act related to the conduct of Dealer’s business over which Administrator has no control, or (c) Dealer’s breach of this Agreement or its failure to comply with any and all applicable laws, rules, regulations and ordinances.
 7. Limitations on Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFIT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT THE OTHER PARTY, ITS EMPLOYEES, AGENTS OR ASSIGNS, MAY SUFFER WHICH ARE CAUSED BY OR RESULT FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT BY THE OTHER PARTY. IN NO EVENT SHALL ADMINISTRATOR’S LIABILITY TO DEALER FOR ANY CLAIM, LOSS, LIABILITY, COST OR EXPENSE RELATING IN ANY WAY TO THIS AGREEMENT, WHETHER BASED IN WHOLE OR IN PART ON NEGLIGENCE, EXCEED THE AMOUNTS REMITTED BY DEALER TO ADMINISTRATOR IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, LOSS, LIABILITY, COST OR EXPENSE. FURTHER, NEITHER PARTY SHALL BE RESPONSIBLE TO THE OTHER FOR ANY TAX LIABILITY OR ASSOCIATED PENALTIES.
 8. Insurance. Dealer shall procure, pay for, and maintain such policy or policies of insurance as are required by law or as are commercially reasonable for the transaction and business contemplated by this Agreement.
 9. Confidential Information. Dealer acknowledges that by reason of the business relationship created by the Agreement, Dealer shall have access to certain information and materials concerning Administrator’s business plans, agents, customers, technology, pricing and products that are confidential and of substantial value to Administrator, which value would be impaired if such information were disclosed to third parties. Except as otherwise provided, Dealer shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such confidential information revealed to it by Administrator or accessible to Dealer pursuant to this Agreement. Disclosure of confidential information by Dealer to a third party shall not be permitted during the term of this Agreement or for three (3) years following termination of this Agreement. Confidential information shall not include such information that is in the public domain at the time of its disclosure to Dealer or becomes available in the public domain through no fault of Dealer.
 10.  Information Security. Both parties agree that during the term of this Agreement, the parties may receive or be given access to information, which may include nonpublic personal information (“NPI”) as such is defined in applicable state and federal privacy and data security laws and regulations (“Privacy & Data Laws”) relating to each party’s respective employees, customers, insureds or claimants. Accordingly, both parties agree to maintain effective information security policies and procedures that include administrative, technical and physical safeguards designed to: a) ensure the security of NPI, b) protect against anticipated threats or hazards to the security or integrity of NPI, c) protect against unauthorized access or use of NPI, and d) ensure the proper disposal of NPI (“Security Procedures”). Each party further agrees to immediately notify the other party of any actual or potential data breach involving NPI and to appropriately document any and all corrective actions taken. Each party represents and warrants that it will contractually require its subcontractors to comply with Privacy & Data Laws and to maintain Security Procedures.
 11. Customer Data. The parties agree that they shall only solicit data or information from customers that is reasonably necessary to transact the sale or to perform the ongoing administration of the Protection Plan. Each party agrees that it shall not send or otherwise make available to the other party any information described in this Section, unless agreed to in writing, in advance. Neither party shall share NPI with any other person or entity unless such sharing is necessary to transact the sale or to perform the ongoing administration of the Protection Plan. Notwithstanding the foregoing, the parties shall comply with all state and federal rules affecting the collection, maintenance and use of personally identifiable information (including, but not limited to the following, as appropriate: the Federal Trade Commission Act, the Gramm Leach Bliley Act, the Fair Credit Reporting Act, and the state data breach notification statutes). To the extent that Dealer is authorized by Administrator to offer Protection Plans in any Provinces or Territories of Canada, the parties shall comply with the Personal Information and Protection of Electronics Documents Act (“PIPEDA”), with regard to information received from Canadian residents.
 12. Relationship. The relationship between the parties shall be that of independent contractors. This Agreement is not intended to create a principal/agent, employer/employee, partnership or joint venture relationship between the parties.
 13. Record Retention and Audit. Dealer shall keep, maintain and preserve during the term of this Agreement and for five (5) years thereafter or for such longer period as may be required by law accurate records which may include electronic files relating to the information gathered and created under this Agreement and showing its compliance with and performance of this Agreement. Administrator’s authorized representatives shall have the right to audit, inspect and copy such records of Dealer, excluding any proprietary or privileged records, at all reasonable times during the business week (Monday through Friday, excluding holidays) upon receipt of two (2) weeks prior written notice. The costs of the audit shall be borne by Administrator.
 14. Governing Law & Venue. This Agreement shall be governed by and interpreted according to the laws of the State of Florida, without regard to its choice of law principles. All disputes shall be resolved by a court of competent jurisdiction in the State of Florida, Each party irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated herein.
 15. Compliance with Laws. Each party shall, at its own expense, comply with any and all applicable local, state and federal laws, ordinances, codes, rules (including but not limited to rules promulgated by the Office of Foreign Assets Control) or those laws applicable to a marketer or seller of Protection Plans and regulations now or hereafter pertaining to its obligations under this Agreement.
 16. Notices. Administrator may provide notice to Dealer under this Agreement by posting it on its program website, emailing it to the email address Dealer provided, or mailing it to the street address provided. Dealer shall notify Administrator of any changes to email address or street address in writing. Notice sent by Administrator shall be considered to be received by Dealer within twenty four (24) hours of the time it is posted to their respective program website or emailed to Dealer unless Administrator receives notice that the email was not delivered. All notices, demands, or communications from Dealer regarding this Agreement shall be in writing and shall be (a) delivered personally; (b) sent by registered or certified mail with return receipt requested; or (c) sent by overnight courier to the appropriate address indicated herein. Notice sent by overnight courier shall be deemed received on the day following shipping. Notice sent by USPS shall be deemed received on the third day following mailing.
 17. Waiver. The failure by either party to require strict performance of any provision of this Agreement shall not be a waiver of such provision in the future. Neither party shall be deemed to have waived any provision of this Agreement unless such waiver is set forth in a writing signed by the waiving party.
 18. Assignment. Dealer may not assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of Administrator. Notwithstanding the foregoing, Administrator may, in its sole discretion elect to utilize any of its subsidiaries or affiliates to perform any of Administrator’s duties or obligations required pursuant to this Agreement.
 19. Amendment. This Agreement may be amended or supplemented only by a written agreement of both parties.
 20. Severability. If any provision(s) of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired.
 21. Entire Agreement. This Agreement and the Scope of Work constitutes the entire agreement between the parties and supersedes any and all prior written and oral agreements between the parties relating to such subject matter.

EXHIBIT A PROGRAM SUMMARY

1. Manner of Sale. Dealer shall promote and market Protection Plans only on qualified vehicle/crafts and shall only sell/offer Protection Plans via existing walk-in sales process directly to existing customers who have purchased a qualified vehicle/craft. Dealer shall not sell, solicit the sale of, or accept requests to purchase Protection Plans via the internet. Dealer shall not market, sell, or quote any Protection Plan purchase price for fleet usage, without first receiving prior written approval and a Protection Plan Fee quote from Administrator. Administrator shall not be obligated to perform administrative services with respect to any Protection Plan sold by Dealer on a form which has not been approved by Administrator or the use of which has been discontinued by Administrator or otherwise sold in violation of this Agreement.
2. Limited Warranties. If Dealer elects to offer Limited Warranties, Dealer shall fully and accurately complete a certified inspection checklist or similar form (“Inspection Form”) for each eligible vehicle covered under a Protection Plan and return a copy of such completed Inspection Form with the Protection Plan Fee. Dealer shall complete and document any repairs necessary to meet the requirements of the Inspection Form. If such Protection Plan is a limited warranty, a limited warranty must be attached to all eligible vehicles in order for any limited warranty to be valid. Dealer shall prominently display, in the buyer’s guide or elsewhere, the existence of the limited warranty for customers review prior to vehicle purchase. Dealer shall only offer the limited warranties to customers at no additional cost. Administrator shall have no obligation to reimburse Dealer for any claims under a limited warranty if Dealer has failed to fully and accurately complete the Inspection Form.
3.. Marketing. Administrator shall provide Dealer with forms, promotional materials and other materials to properly promote and support the Program, all of which shall remain the property of Administrator and shall be returned to Administrator in the event of the termination of this Agreement or upon demand of Administrator.
4.. Direct Marketing. If Dealer wishes to utilize direct marketing to capture missed point of sale opportunities, Administrator shall have the right of first refusal with respect to the opportunity to market Protection Plans. Such right of first refusal shall entitle Administrator to be given the right to be appointed to market Protection Plans on terms no less favorable than a competitor’s bid for such work. In no event, shall a third party market Administrator’s Protection Plans without written approval of Administrator. Such appointment shall be provided in a format approved by Administrator.
5. Protection Plan Fee. For each Protection Plan released to a Protection Plan Holder, Dealer shall remit to Administrator the applicable wholesale price (“Protection Plan Fee”) as indicated in the Protection Plan Fee schedule.The Protection Plan Fee schedule may be periodically adjusted by Administrator and any adjustment shall take effect no more than thirty (30) days after Dealer receives notice, in writing, of the revised Rate Chart.
6. Remittance. Dealer shall promptly remit to Administrator the applicable Protection Plan Fee due and payable to Administrator within fifteen (15) days after Dealer issues the Protection Plan, along with a properly executed copy of such Protection Plan, if applicable. Failure to remit the Protection Plan Fee or such other amounts shall constitute a material breach of this Agreement. Dealer shall be responsible for any specially assigned fees and/or conditions established by Administrator if any Protection Plan is reported more than fifteen (15) days from the date of purchase and is accepted by Administrator. Such specially assigned fees or conditions may include, but are not limited to, the costs of repair, the Protection Plan Fee and the amount of any cancellation refunds. Late submission and/or payment for a Protection Plan may result in a surcharge and a denial of claim(s).
7. Third Party Pass Through. Administrator shall pay a specified amount to Dealer or its designee with respect to certain Protection Plans sold/offered pursuant to this Agreement (“Third Party Pass Through Payment”). The amount and eligibility requirements for payment shall be provided in a format approved by Administrator. Third Party Pass Through Payment shall not be considered due until such Protection Plan has been accepted by Administrator and fully paid to Administrator. Furthermore, payment of Third Party Pass Through Payment shall be contingent upon Dealer or the applicable Payment Provider, as defined below, remitting an amount equal to the Third Party Pass Through Payment in addition to the Protection Plan Fee. Administrator shall determine eligibility for Third Party Pass Through Payment with respect to Protection Plan(s) based on the net amounts received by Administrator from the sale or distribution of the Protection Plan(s). For purposes of this determination, “net amounts received” by Administrator shall mean the amount remaining from the gross sales price of the Protection Plan after deducting all applicable taxes and cancellations. Payment of Third Party Pass Through Payment amounts to Dealer or its designee shall be made by Administrator on a monthly basis, in arrears.
8. Fiduciary Capacity. All amounts constituting Protection Plan Fee related to Protection Plans distributed by Dealer: (a) shall remain at all times the property of Administrator and underwriter, and neither Dealer nor any third party claiming under, through or on behalf of Dealer shall have any interest in, or rights with respect to, such Protection Plan Fee; (b) shall be held separately in a fiduciary capacity by Dealer for the benefit of Administrator and underwriter in a manner that clearly establishes that the amounts are owned by Administrator and underwriter, until remitted to Administrator. No acts or omissions by either party shall be deemed to waive or modify the creation of the fiduciary relationship as to the amounts referenced in the preceding sentence.
9. Taxes. Dealer shall be solely responsible for collecting from each Protection Plan Holder and remitting to the proper taxing authority all taxes associated with the price paid for the Protection Plan. Unless otherwise set forth in writing, Administrator shall have no responsibility for the processing and remittance of such taxes related to sales to Protection Plan Holder. To the extent Dealer receives amounts pursuant to this Agreement which include or cause taxes to be due and payable to an appropriate taxing authority, Dealer shall be responsible for remitting such taxes to such authority.
10. Statements. Data reflecting sales paid and reported along with cancellation activity for the previous month shall be available to Dealer via an online portal. If Dealer has objections with respect to any information posted in such portal, Dealer shall communicate such objections to Administrator, in writing, within thirty (30) days of the date the data is made available to Dealer. Any and all objections not received in writing, by Administrator, within the thirty (30) day period shall be deemed waived and abandoned.
11. Any amounts identified as due to Administrator for prior Protection Plan sales once a periodic Dealer statement has been provided to Dealer by Administrator, via Administrator’s online systems, shall be immediately due to Administrator. If such amounts have not been paid by the close of the month following the month in which Dealer statement was made available, the amounts due to Administrator may be deducted from any cancellation refunds due to Dealer from Administrator or the applicable Protection Plan(s) may be subject to rejection.
12. Cancellations. In the event of a cancellation request, Administrator shall calculate the pro rata refund associated with any Protection Plan Fee or Dealer Fee previously paid to Administrator, which is due to the Protection Plan Holder
13. Service or Claim. Dealer shall contact and notify Administrator of any potential claim. In connection with any claim, Dealer shall report the following information to Administrator: Protection Plan number; Customer name, address and telephone number; vehicle/craft make, model, year, unique identifying number (e.g. VIN, hull, or motor) and current mileage; Owner’s original complaint; Dealer’s diagnosis and description of required repair; cost of repair including labor, required parts, cost of each required individual part and sublet cost and any information or documentation requested by Administrator. Administrator shall review the report associated with a potential claim to determine eligibility for payment under the Protection Plan.
13.1. Administrator shall verify the labor rates and parts prices that shall be used for any repair made pursuant to this Agreement.
13.1.1. The labor time authorized by Administrator to complete a repair shall be based upon one of the following nationally recognized labor guides: original equipment manufacturer labor guides, All-Data, Chilton, Mitchell, Mitchell OnDemand, or Spader. Upon execution of this Agreement, Dealer shall advise Administrator of Dealer’s preferred labor guide to price any repairs which may be authorized by Administrator under this Agreement. Once Dealer establishes Dealer’s preferred labor guide, all repairs shall be priced consistent with such manual. If Dealer elects to change Dealer’s preferred labor guide, Dealer shall submit such request in writing to Administrator for prior written approval. Such approval shall not be unreasonably withheld.
13.1.2. Upon execution of this Agreement, Dealer must notify Administrator of Dealer’s hourly labor rate. Administrator shall authorize repairs based upon the dealership manufacturer’s approved retail labor rate If Dealer requests a higher labor rate at any time in the future, Dealer shall submit such request in writing to Administrator. Such higher labor rate shall be used only following written approval of Administrator. If the Dealer’s published labor rate is higher than the reimbursement rate stated in the Administrators Vehicle Service Contract or Limited Warranty Contract, the customer is responsible for additional charges.
13.1.3. Sublet work shall be reimbursed at the lesser of (a) Dealer’s cost plus ten percent (10%) or (b) Seventy five dollars ($75.00) provided, however, that if the entire repair has been sublet, it shall be reimbursed only at Dealer’s cost.
13.1.4. The cost of replacement parts for covered claims shall not exceed the manufacturer’s suggested retail price.
13.1.5. Administrator reserves the right, in its sole discretion, to adjust parts and labor reimbursement. Administrator shall provide notice of such changes and such changes shall apply only to repairs commenced thirty (30) or more days after Dealer has received notice of such changes.
13.1.6. Dealer shall be solely responsible for the following: (a) Parts, labor or other services provided which are (i) not authorized by Administrator; (ii) not specifically covered by Protection Plan; (iii) specifically excluded by Protection Plan; (iv) a result of Dealer’s failure to perform original repair in a good and workmanlike manner; (b) Any pre-existing conditions for any breakdown occurring (i) before coverage takes effect; (ii) prior to the Protection Plan purchase or coverage date (as applicable); (iii) if the information provided by Dealer cannot be verified as accurate or is found to be deceptively inaccurate; (c) Repair covered by (i) a manufacturer’s warranty;(ii) repairer’s guarantee; or (iii) service contract or other similar agreement; and (d) Shop supplies, hazardous material and/or environmental disposal fees.
13.1.7. Administrator shall in its sole discretion determine if Dealer may utilize replacement parts which are new, rebuilt or of “like kind and quality” based on the nature of the repair and the specific vehicle/craft involved.
13.2. Administrator shall provide a reference number with an agreed upon claim amount related to an approved repair under the Protection Plan.
13.3. Dealer shall submit a repair order to Administrator for completed repairs not more than sixty (60) days after the completion of such repairs. Administrator may reject any improperly submitted repair order, and such related repairs shall be the responsibility of Dealer.
 13.3.1. Administrator shall review such repair orders to determine eligibility for payment under the Protection Plan. Administrator shall only process repair orders that contain the following information: Protection Plan number; Customer name, address and telephone number; vehicle make, model, year, unique identifying number (e.g. VIN, hull, or motor), and current mileage; Customer’s original complaint; Dealer’s diagnosis and description of required repairs; cost of repair including labor, required parts, cost of each required part and sublet cost; Administrator’s reference number and agreed upon claim amount; and Customer’s signature.
13.3.2. Administrator shall provide payment based upon the established reference number and the agreed upon claim amount which payment shall constitute payment in full.
13.3.3. Dealer shall be solely responsible for collecting, directly from the owner of the vehicle/craft, (a) the Protection Plan deductible (if any) for the repair, and (b) the cost of any non-covered and/or unauthorized parts, labor or other services.
13.4. Administrator may require an inspection to document the claim. Inspections shall be performed by independent companies, normally completed within forty-eight (48) hours. Dealer shall be advised if an inspection has been scheduled.
13.5. Dealer shall warrant all repairs and other services provided pursuant to this Agreement against defects in workmanship and materials, under normal use, for a minimum period of twelve (12) months or twelve thousand (12,000) miles after the service date, whichever comes first.