SIGNAL MARKETPLACE TERMS AND CONDITIONS
Last updated: June 7th 2022
These Marketplace Terms and Conditions (the “Marketplace Terms”) set forth the terms and conditions between Customer (as defined in the paragraph below) and Signal Technologies LLC or any of its Affiliates (“Signal,” “we,” “our,” or “us”) which govern Customer’s and its Affiliates’ license to access and use the services available from Signal through which you may sell and purchase vehicles and any services provided related thereto (the “Marketplace Services”). Signal and Customer may individually be referred to as a “party” and collectively the “parties.” These Marketplace Terms are effective as of the date that you sign up for Marketplace Services online or sign an Order Form that references these Marketplace Terms (the “Effective Date”). Capitalized terms used but not defined in these Marketplace Terms shall have the meanings set out in the Signal General Terms of Service (the “Terms”).
If you are accessing or using the Marketplace Services on behalf of an organization, then your organization is legally and financially responsible for your access to and use of the Marketplace Services as well as for the use of your Signal account by others affiliated with the organization, including any employees, agents or contractors. For the avoidance of doubt, the organization, company, or other legal entity for which you act will be considered the “Customer” under these Marketplace Terms.
- Eligible Participants. Signal provides a business-to-business online marketplace. Only representatives of licensed dealerships are eligible to participate, whether as vehicle sellers (“Sellers”) or vehicle buyers (“Buyers”). By using the Marketplace Services, you represent and warrant that you are a licensed dealer of motor vehicles and are legally eligible to purchase or sell wholesale vehicles for resale. You agree to promptly furnish to Signal upon request satisfactory proof of your eligibility to use the Marketplace Services.
- Registration. To be eligible to access the Marketplace Services, you must complete Signal’s registration process, including without limitation signing one or more Order Forms. Upon completion and approval by Signal, you and your designated authorized representatives (“Authorized Representatives”) will be issued unique names and passwords to access the Marketplace Services. You are liable and responsible for all actions, omissions and any failure to act of your Authorized Representatives in connection with your Authorized Representatives’ use of the Marketplace Services. You represent and warrant that all information that you provide to Signal is accurate and complete and that you will notify us in writing of any changes to the information provided. You hereby authorize Signal to share the information you provide to us (including, without limitation, financial information) with Signal partners solely to the extent such information is needed to provide the Marketplace Services. You agree not to give anyone access to the Marketplace Services other than your Authorized Representatives. Further, you represent and warrant to Signal that: (a) you and your Authorized Representatives are in compliance with and shall comply with all laws and regulations that apply to your business; and (b) you and your Authorized Representatives have secured and will maintain all permits, licenses and governmental approvals required to operate your business including, without limitation, as required to access and participate in the Marketplace Services. We reserve the right to temporarily or permanently suspend your access rights and/or the access rights of any of your Authorized Representatives at any time in our sole and absolute discretion.
- Permitted Use. You agree that you will use the Marketplace Services solely for your internal business purposes and will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted herein), distribute, time share or otherwise commercially exploit or make the Marketplace Services available to any third party, other than to your Authorized Representatives or as otherwise contemplated by these Marketplace Terms; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that violates third party privacy rights; (iv) send or store malicious code or viruses; (v) interfere with or disrupt the integrity or performance of the Marketplace Services or the data contained therein; or (vi) attempt to gain unauthorized access to the Marketplace Services or its related systems or networks. You further agree that you will not (i) modify, copy or create derivative works based on the Marketplace Services; (ii) frame or mirror any content forming part of the Marketplace Services; (iii) reverse engineer or decompile the Marketplace Services; (iv) access the Marketplace Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Marketplace Services; or (v) permit or authorize any third party to do any of the above at your direction or on your behalf.
- Signal’s Role. Signal’s Marketplace Services facilitate the exchange of vehicles between Buyers and Sellers. Signal is neither the Buyer nor the Seller of the vehicles listed for sale. It is your responsibility to research the condition and value of the vehicle and the terms of sale prior to purchasing. Signal is not a party to the vehicle sale contract, but rather is a third party beneficiary of the contract, entitled to the parties’ performance and to seek legal remedies for the parties’ breach. You agree that any legal claims arising out of a transaction will be between you and the other party (either Buyer or Seller) in the transaction and not against Signal or any Signal partner.
- Vehicle Reservation and Release Requirements. Vehicles imported from Canada to the United States are subject to a mandatory 30-day holding period prior to their release (the “Release Date”). Prior to a vehicle’s release date, Buyers may reserve the vehicle for future purchase via the Marketplace Services; however, a Buyer cannot purchase, and a Seller cannot sell or ship the vehicle until after the vehicle’s Release Date.
- Seller Obligations. The Seller represents, warrants and agrees to the following terms:
- Seller is a licensed dealer of motor vehicles;
- Seller may not sell or ship a vehicle until after its Release Date;
- any amounts owed to Signal or its Affiliates by Seller may be deducted from any proceeds due Seller;
- Signal may stop payment or refuse to authorize payment to Seller pursuant to a right of offset;
- risk of loss for a vehicle remains with the Seller as long as the vehicle is at the storage location or premises (or a premises designated by Seller). Once the Buyer, after the Release Date, retrieves the vehicle, or otherwise causes the vehicle to be removed from Seller’s premises, the risk of loss for the vehicle is transferred to the Buyer or its agents;
- Seller is responsible for completion and execution of the required odometer mileage statement pertaining to the vehicle and on the certificate of title;
- Seller’ is the true and lawful owner of the vehicle except as set forth in the vehicle’s announcements;
- any vehicles listed for sale are free from all liens and encumbrances except as set forth in the vehicle’s announcements;
- Seller has full rights, power and authority to sell and transfer title to the Buyer in accordance except as set forth in the vehicle’s announcements;
- a $500 cancellation fee will be assessed to a Seller if a transaction is cancelled or abandoned by the Seller after a Buyer’s reservation is binding or is otherwise accepted;
- unless otherwise agreed, Seller will make the sold vehicle available for at least seven business days after the sale of the vehicle for the Buyer or its agent to pick up;
- the number of vehicles posted by a Seller may be limited by Signal during an introductory period;
- unless otherwise agreed, Seller will permit Signal to inspect the vehicles Seller intends to list through the Services, for the purpose of creating a vehicle condition report;
- Seller agrees to pay the Inspection Fee should the vehicle fail its inspection;
- Seller shall abide by and comply with all applicable laws, rules and regulations, including but not limited to all rules and regulations set forth by the applicable department of motor vehicles; and
- Seller agrees to abide by Signal’s Arbitration Policy as amended from time to time.
- Buyer Obligations. The Buyer represents, warrants and agrees to the following terms:
- Buyer is a licensed motor vehicle dealer in good standing;
- Buyer will purchase the vehicle for the listed price;
- Buyer will not list or resell the vehicle until after the Release Date and good funds have been transmitted to Signal;
- Prior to a vehicle’s Release Date, Buyer may reserve a vehicle for future purchase but may not purchase the vehicle until after the Release Date;
- Buyer agrees to pay a non-refundable reservation fee of $500 per reserved vehicle;
- Buyer will pick up the vehicle within five business days of the vehicle’s Release Date or, if the purchase date is after the Release Date, within five business days of the purchase date;
- no stop payment of Buyer’s payment to Signal shall be honored;
- any stop payment order shall be deemed by the parties to be evidence of fraud existing at the time the transaction was consummated and shall be construed by the parties as an intent to defraud in order to consummate the transaction;
- Buyer is responsible for pickup and transport and all associated costs;
- Buyer is solvent;
- the vehicle is purchased for resale in the form of tangible personal property in the regular course of business and is the sort usually purchased by Buyer for resale;
- in the event that the vehicle is used for any purpose other than for resale, Buyer will pay directly to the proper taxing authorities such sale or use tax as may then be accrued and become payable;
- Buyer holds a retail sales tax registration, certificate, license, or other permit, issued by the sales taxing authority of Seller’s state, county, and country as appropriate;
- title to the vehicle will not pass to Buyer until complete payment has been received by Signal and the title has been received from the Seller;
- Signal reserves the right to limit the number of vehicles purchased by a Buyer at any time;
- failure to remit payment within five business days will result in a fee equal to 2 times the total buy fee; and
- Buyer shall abide by and comply with all applicable laws, rules and regulations, including but not limited to all rules and regulations set forth by the applicable department of motor vehicles.
- Payment Terms. In consideration of access to the Marketplace Services, Buyer and Seller each agree to pay Signal or its Affiliates (as applicable) all fees and charges assessed by Signal and/or its Affiliates for access to the Services, including with limitation transaction-based fees for vehicles purchased and sold through the Marketplace Services (collectively, the “Fees”). Applicable Fees shall be set forth in one or more Order Forms executed by the Customer. The purchase price of the vehicle, service charges, plus all applicable taxes and Fees payable by Buyer in connection with a transaction is the “Total Payment Amount.” All Fees are non-refundable.Buyer shall pay Signal the Total Payment Amount within two (2) business days after the Buyer purchases the vehicle (the “Payment Due Date”). Payment shall be made in U.S. dollars by, ACH electronic funds transfer, check, floor plan, or by another financing arrangement acceptable to Signal (each a “Payment Method”). If payment is not received by the Payment Due Date, the amount owing will be automatically debited using the default payment method selected by the Buyer. Signal reserves the right to specify the type of Payment Method it will accept from the Buyer in our sole and absolute discretion. In addition to whatever rights of set-off Signal may have in any jurisdiction where vehicles are sold, if Buyer fails to pay Fees or other amounts owing when due to Signal or any Signal Affiliate, Signal will be entitled to immediately set off the amount owed by Buyer from any funds due from Signal to Buyer. In addition, if you fail to pay the Total Payment Amount by the Payment Due Date, we may: (a) electronically debit your bank account or floor plan account in accordance with the default payment method selected by you or another account made available to Signal; (b) withhold title documents until all amounts owed have been paid; (c) cancel the sale transaction; (d) charge interest on any past due amounts at the rate of one and one half (1.5%) percent per month, calculated in U.S. dollars, or the maximum rate allowed by law, whichever is less; and/or (e) pursue any other remedy or relief permitted by law. If Signal accepts payment from Buyer by electronic check, Buyer authorizes Signal to initiate debit entries to its account at the financial institution on which the electronic check was written. The electronic check debit authorization will remain in force until we have received written notice from you of its termination. Signal reserves the right to decline payment by electronic check at any time and for any reason. Any payment that is withdrawn by Buyer or its bank, rejected or returned for non-sufficient funds (“NSF”) must be settled and replaced immediately. NSF transactions will be subject to a service charge up to the maximum amount allowed by law and shall be immediately due and payable.Signal will pay Seller the purchase price of the vehicle less the Fees due from Seller to Signal after receipt of a clear, transferable title from Seller.
Customer agree to pay all costs including, without limitation, attorney fees, court costs and other expenses reasonably incurred by Signal or its Affiliates, to collect any monies owing by you.
- Inspection. When a Buyer purchases a vehicle using the Marketplace Services, the vehicle undergoes an inspection for which a report is generated (each, a “Inspection Report”). The Buyer will then be provided with a copy of the Inspection Report. If, after being provided a copy of the Inspection Report, the Buyer wishes to cancel the purchase, the Buyer must provide notice to Signal of its wish to cancel within 48 hours of being provided a copy of the Inspection Report (the “Cancellation Period“), otherwise the transaction will proceed.
- Arbitration. If, upon pickup and inspection of the vehicle, the Buyer discovers a defect that is allowed to be arbitrated pursuant to the Arbitration Policy. Buyer may pursue a remedy through the arbitration process as set forth in such policy. For the avoidance of doubt, a Buyer shall not be eligible to pursue any remedy under the Arbitration Policy based on any defect or condition that was disclosed in the Inspection Report. Sellers who repeatedly fail to make required announcements or Buyers who repeatedly submit questionable arbitration claims may have their Marketplace privileges temporarily or permanently suspended.
- Data. Signal has the right to use certain Customer generated information, content, photographs and vehicle data for the limited use of promoting and carrying out the Marketplace Services requested by such Customer. Customers and their representative dealerships grant Signal a limited license to utilize non-confidential information for the general purpose of promoting and providing Marketplace Services to our Customers, and this license extends to trusted third parties with whom we work. Customers agree that this permission is royalty free, irrevocable and worldwide for so long as Customer Information is held by Signal and/or its Affiliates. All data collected by Signal related to vehicles, and all transaction data related to the Marketplace Services shall be owned by Signal without restrictions on its use of such data.
- Indemnity. Each Customer agrees at their own expense to defend, indemnify, and hold Signal and its Affiliates, and each of their directors, officers, employees and agents, harmless from and against any loss, damage, liability, demand, lawsuit, debt, charge, action, penalty, interest, claim, cost, tax or expense whatsoever, including without limitation any and all out-of-pocket costs and actual legal and accounting fees, duties and bonds, which Signal may incur, suffer or be required to pay as a result of or relating to, arising out of, or in connection with (a) your use of the Marketplace Services; (b) your violation of the Marketplace Terms; (c) your violation of any third party right, including, but not limited to, any intellectual property right, right of attribution, association, integrity, publicity, confidentiality, property or privacy right; (d) any claim in connection with a vehicle; or (d) any claim that Customer information, or your use the property of others, may have caused or did cause damage to a third party, including, but not limited to, claims that Customer information, or your use of the property of others, infringe the rights of others or caused damages to others. Customer further agrees to indemnify Signal for reasonable legal and accounting fees, costs, and expenses incurred in enforcing the rights of Signal against Customer under these Marketplace Terms.
- Representations Regarding Taxes. Buyer certifies that it holds the appropriate documentation issued by the sales tax authority of the state, province, or locality of its business or where it purchases vehicles, as applicable, which exempts Buyer from the payment of sales tax, and warrants that it will provide a copy of such applicable documentation to Signal upon registration, at any time upon request, and as necessary to maintain the validity of such documentation. In the event that vehicles or other products purchased are used for any purpose other than for resale, Buyer will pay directly to the proper taxing authorities such sale or use tax as may then accrue and be due and payable.
- Dispute Resolution. Any controversy or claim between Customer and Signal arising out of or relating to these Marketplace Terms or the validity, inducement, or breach hereof (each such controversy or claim is hereinafter referred to as a “Dispute“), shall be settled as follows:First, the parties involved in the Dispute shall attempt to resolve any Dispute prior to commencing the procedures set forth below.If after seven days the parties are unable to resolve the Dispute, the parties shall submit to non-binding mediation which shall take place for a period of one day in King County, Washington before a mediator that is mutually acceptable to the parties. If the parties are unable to agree on the selection of a mediator, a mediator will be chosen by an arbitrator selected pursuant to the rules of the American Arbitration Association (“AAA“) who will then select such mediator from a list of distinguished neutral mediators maintained by the AAA. The mediator shall confer with the parties to design procedures to conclude the mediation within no more than 30 days after initiation. Each party has the right to pursue any provisional relief from the appropriate court, such as attachment, preliminary injunction, specific performance (the parties acknowledging that monetary damages may not be sufficient remedy), replevin, etc. to avoid irreparable harm, maintain the status quo, or preserve the subject matter of the Dispute even though mediation has not been commenced or completed.
Customer may only resolve disputes with Signal on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed, and Customer expressly disclaims any right to bring or participate in any such action. If the parties are unable to resolve the Dispute within the 45-day period referred to above, or in the event that the agreement to arbitrate is found not to apply to Customer or Customer’s claim, Customer and Signal agree that any judicial proceeding will be brought in the federal or state courts of King County, Washington. Both Customer and Signal consent to venue and personal jurisdiction there.
- Governing Law. These Marketplace Terms shall be governed by and construed in accordance with the laws of the State of Washington without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to these Terms shall be in King County, Washington, USA.
- Waiver; Severability. Signal’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Marketplace Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible.
- Changes. We reserve the right, at our sole discretion, to modify or replace these Marketplace Terms at any time with respect to all sales occurring after such modifications are effective. Modifications will take effect immediately upon posting of the revised Marketplace Terms, provided however, if a change is material we will provide at least 30 days’ notice prior to such modifications taking effect. What constitutes a material modification will be determined at our sole discretion. By continuing to access or use our Marketplace Services after any modifications become effective, you agree to be bound by the revised terms.