Definitions
“Agreement” means these Terms of Service and all materials referred or linked to in these Terms of Service.
“Personal Data” means the name and email address voluntarily submitted by Customer, as well as navigational data relating to each Customer.
“Customer” or “Buyer” means the person or entity using the Subscription Service or Non-Subscription Services and identified in the applicable statement or Customer Information Form as the Auto+ Performance customer.
“Social Media Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags incorporated into the Subscription Service by Auto+ Performance.
“Customer Information Form” means the Auto+ Performance approved form by which Customer agrees to subscribe to the
Subscription Service or purchase one or more of the Non-Subscription Services.
“Subscription Service” means services that include social media management, calendar subscription service, SEO
management, social media or search engine advertising, digital marketing efforts including email marketing and blogs, google my business management, CSI performance, Automotive Directory listings, Job Postings, and any ancillary online or offline products and services provided to Customer by Auto+ Performance, to which Customer is being granted access pursuant to this Agreement and an Customer Information Form.
“Non-Subscription Services” or “Non-Subscription Services” means payable content or services not included in Subscription Service.
“Third-Party Sites” means third-party websites linked to from within the Subscription or Non-Subscription Service, including without limitation Communications Services.
“User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for the benefit of Customer and who have been supplied user identifications and passwords by Customer (or by Auto+ Performance at Customer’s request).
“Website” means https://autoplusperformance.com
Product and Services
By accessing and using Auto+ Performance’s product or services in any way, you agree to be bound by this agreement,
including the warranty disclaimers, limitations of liability, and termination provisions below. If you do not agree to the terms, please do not use any of our products or services.
During a Subscription Term or Non-Subscription Period and as provided in this Agreement, Auto+ Performance will provide the Customer (Buyer) with all the necessary communication and tools needed to properly provide, execute, or approve the Service as indicated in the Service Agreement.
Customer will have access to photos which they can and will be used in their social media posts in accordance with Pixabay license terms and Shutterstock license terms.
As Auto+ Performance ensures a thorough and detailed final approval process prior to posting any content, Auto+
Performance disclaims all liability for any incompleteness and/or errors in Auto+ Performance Content.
Auto+ Performance may limit the use of certain features in any of the Products or Service in its sole discretion. Auto+ Performance may suspend, limit, or terminate any of the Products or Services for any reason at any time without notice.
Auto+ Performance modifies its Products and Services from time to time, including by adding or deleting features and functions, in an effort to improve its customers’ experience. Nothing in this Agreement shall prohibit Auto+ Performance from making such changes to the Product or Services.
Subscription Term and Renewal
The subscription term shall be weekly, monthly or annually, based on the user’s selection. Unless either party gives the other written notice that it does not intend to renew the subscription, this Agreement will be automatically renewed on a weekly, monthly or annual basis.
Customer authorizes Auto+ Performance to use a third party to process payments, and consents to the disclosure of
Customer’s payment information to such third party.
Fees and Payments
Monthly Subscription Fees or Non-Subscription Pricing will be thoroughly laid out on the Customer Information and Agreement Form. Customer authorizes Auto+ Performance to use a third party to process payments, and consents to the disclosure of Customer’s payment information to such third party.
All monthly subscription and non-subscription payment obligations are non-cancelable, and all amounts paid are nonrefundable due to the nature of Auto+ Performance Products and Services.
Yearly subscription payment obligations can be cancelled within 7 days of subscribing and will be refunded within 30 days.
The cancellation fee for yearly subscription is $29.
Once you purchase a subscription, the initial price you purchased at will remain the same until you cancel your subscription. If you cancel your subscription at any time and re-subscribe at a later date, your new subscription will be purchased at the most current rate.
Customer and Personal Data
Auto+ Performance may monitor the use of the Services by all of its customers and use data related to such use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of Auto+ Performance’s Products and Services. Customer agrees that Auto+ Performance may use, sell and publish such information, provided that such information does not incorporate any Customer Data and/or identify Customer.
Auto+ Performance may collect, use, process, store, and share certain customer data (like name and address) in connection with providing the Product or Service. Any such collection, use, processing, storing, or sharing is subject to the terms and conditions of Auto+ Performance’s Privacy Policy (www.autoplusperformance.com/privacy-policy) which is hereby incorporated into this Agreement by reference.
Customer agrees that customer data may be collected and used by Auto+ Performance in connection with the Subscription Service and Non-Subscription Services, and Customer hereby consents to such use and collection.
Indemnification
Customer will indemnify, defend and hold Auto+ Performance harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Auto+ Performance (and its officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Auto+
Performance to the extent that such Action is based upon or arises out of (a) Customer’s use of any of the Products or Services; (b) Customer’s noncompliance with or breach of this Agreement, (c) Customer’s use of Third-Party Products, (d) the unauthorized use of the Subscription Service or Non-Subscription Services by any other person using Customer’s User information, or (e) Customer’s unauthorized use, collection, storage, processing, or disclosure of Personal Data. Auto+ Performance shall use commercially reasonable efforts to: notify Customer in writing within thirty (30) days of Auto+Performance becoming aware of any such claim; give Customer sole control of the defense or settlement of such a claim (provided that Customer may not settle any such claim unless the settlement unconditionally releases Auto+ Performance of all liability); and provide Customer (at Customer’s expense) with any and all information and assistance reasonably requested by Customer to handle the defense or settlement of the claim. Customer shall not accept any settlement that (i) imposes an obligation on Auto+ Performance; (ii) requires Auto+ Performance to make an admission; or (iii) imposes liability not covered by
these indemnifications or places restrictions on Auto+ Performance without Auto+ Performance prior written consent.
Disclaimers and Limitations of Liability
By using any of Auto+ Performance’s Subscription Service, Non-Subscription Services or Products you agree that you are fully responsible for your progress and results from your participation and that Auto+ Performance offers no representations or guarantees regarding your business profit and earnings and that you are solely responsible for your progress.
Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE, SUBSCRIPTION SERVICE AND NONSUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. AUTO+PERFORMANCE AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE WEBSITE, SUBSCRIPTION SERVICE, NON-SUBSCRIPTION SERVICES, AND THE AUTO+ PERFORMANCE CONTENT INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR7
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AUTO+ PERFORMANCE IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
No Indirect Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, EVEN IF SUCH PARTY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
Limitation of Liability
EXCEPT FOR CUSTOMER’S LIABILITY FOR PAYMENT OF FEES AND CUSTOMER’S LIABILITY ARISING FROM ITS INDEMNITY OBLIGATIONS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF ONE HUNDRED DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM FOR THE SUBSCRIPTION SERVICE OR NON-SUBSCRIPTION SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
Third Party Products
AUTO+ PERFORMANCE DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CUSTOMER. AUTO+ PERFORMANCE LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND AUTO+ PERFORMANCE’S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SUBSCRIPTION SERVICE AND NON-SUBSCRIPTION SERVICES SHALL BE SUBJECT TO THIS SECTION.
CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, AUTO+ PERFORMANCE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE OR NON-SUBSCRIPTION SERVICES TO CUSTOMER.
General
No Waiver
Auto+ Performance may update and change any part or all of this Agreement, including fees.
If Auto+ Performance updates or changes this Agreement, the updated Agreement will be posted
at https://autoplusperformance.com/terms. The updated Agreement will become effective and binding on the next
business day after it is posted. Auto+ Performance encourages Customer to review this Agreement periodically. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion. Notwithstanding the foregoing, Auto+ Performance will comply with all applicable laws and regulations to the extent that any change or update to this Agreement changes or updates the manner in which Auto+ Performance will collect, use, process, share, or store Personal Data.
Applicable Law
To the maximum extent permitted by law, this Agreement and all Order Form(s) shall be governed by the laws of Canada and the USA without reference to conflicts of law principles, and both parties hereby consent to the exclusive jurisdiction and venue of courts in Canada, USA in all disputes arising out of or relating to the use of the Subscription Service. Use of the Subscription Service or Non-Subscription Services is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph.
Notices
Notice shall be sent to the contact address set forth herein (as such may be changed by notice given to the other party) and shall be deemed delivered as of the date of actual receipt. To Auto+ Performance: 115 Brock Street, Barrie, ON, L4N 2M3. To Customer: Customer’s e-mail address as provided in Auto+ Performance’s account information for Customer.
Service Provider shall not be responsible for any delays, claims or damages resulting from any delays in performance or for non-performance due to unforeseen circumstances or causes beyond Service Provider’s reasonable control.
As we review and approve all Social Media posts in advance, we agree that the Service Provider will not be liable for any indirect, special, consequential, or punitive damages (including lost profits) arising out of or relating to this Agreement or the transactions it contemplates (whether for breach of contract, tort, negligence, or other form of action) and irrespective of whether Service Provider has been advised of the possibility of any such damage. In no event will Service Provider’s liability exceed the price paid by Buyer for the Services giving rise to the claim or cause of action.
This Agreement contains the entire understanding between the Parties and supersedes and cancels all prior agreements of the Parties, whether oral or written, with respect to such subject matter.
No Party shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. Waiver by any Party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any other subsequent breach or violation.
If Photos or Content is generated by Auto+ Performance, it is confirmed that Auto+ Performance owns this product regardless of if they use this content for Social Media Posts on other pages outside of their own.
Entire Agreement
By viewing and approving the content that Auto+ Performance generates on behalf of your business, you grant Auto+
Performance a right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your content for the purpose of providing value in the automotive industry.
Unless otherwise expressly stated herein, this Agreement (including each Order Form), along with any Auto+ Performance exhibit or addendum hereto, including any Order Form, constitutes the entire agreement between Customer and Auto+ Performance with respect to the Subscription Service or Non-Subscription Services and supersedes all prior or contemporaneous communications, proposals and agreements, whether electronic, oral or written, between Customer and Auto+ Performance with respect to the subject of this Agreement.
