CarBrain.com
Service Provider Program

These terms and conditions govern participation in the CarBrain.com Service Provider program (the “Program”) provided by CarBrain, LLC; a Delaware limited liability company; doing business as CarBrain.com (hereinafter “CarBrain").

The Program is offered to individuals or entities operating vehicle purchasing businesses subject to these Terms and Conditions. The term "Service Provider" shall refer to any individual or entity who joins the CarBrain Service Provider Program, and accepts these Terms and Conditions at http://CarBrain.com/partner-with-us to subsequently create a Service Provider account. CarBrain may amend or otherwise modify this Agreement. Service Provider agrees that CarBrain’s posting of any amendments or modifications to this website shall constitute adequate notice to Service Provider. If any material modification to this Agreement is unacceptable to Service Provider, it shall be Service Provider's responsibility to terminate as provided in Section 8 of this Agreement. If Service Provider does not terminate the Agreement within 10 days of the material modification, then Service Provider's continued participation in the CarBrain Service Provider Program will mean that Service Provider has accepted the amended or modified Agreement.

1. CarBrain SERVICE PROVIDER PROGRAM
   The CarBrain Service Provider Program (hereafter "Program") is an online marketplace for damaged and end of life vehicles where Service Providers and vehicle owners transact through a technology driven platform. The CarBrain.com web site enables Service Providers to create a profile, manage pricing structure in their service area, receive leads, presents offers on vehicles to sellers in their service areas, who can accept or reject the offer. CarBrain reserves the right, in its sole discretion, to alter the Program at any time for any reason or for no reason at all. CarBrain also reserves the right, in its sole discretion, to terminate the Program at any time for any reason.

2. REGISTRATION AND ACCEPTANCE
   By registering for the Program and accepting these Terms and Conditions, Service Provider represents and warrants:

1. that he or she is of the legal age of consent in all applicable jurisdictions and, in any event, is at least 18 years o age.

2. that he or she can lawfully bind him or herself to these Terms and Conditions and can lawfully participate in the Program in the jurisdiction(s) where Service Provider is located. No Service Provider may participate in the Program where doing so would be prohibited by any law or regulation having the force of law applicable to Service Provider.

3. (i) that all information submitted by Service Provider in registering for the Program is true, accurate, current, and complete; (ii) that the Service Provider is not already registered under another account for the Program; and (iii) that Service Provider shall maintain and update information submitted in registering for the Program in order to keep it true, accurate, current and complete at all times. If any information that Service Provider submits in the registration process is untrue, inaccurate, not current or incomplete, CarBrain System shall have the right to terminate Service Provider's participation in the Program, in addition to other remedies available to it under law, all of which are expressly reserved.

4. that in order to participate in the Program, Service Provider will be required to enter certain registration information, agree to the Terms and Conditions and subsequently create a Service Provider account. By creating and account, the Service Provider agrees to be bound by these Terms and Conditions. If these Terms and Conditions or any future amendment or modification thereto are unacceptable to Service Provider, Service Provider may cancel its participation in the Program pursuant to Section 8 below.

3. SERVICE PROVIDER'S OBLIGATIONS
   3.1 Responsibility for Transaction. Service Provider acknowledges and agrees that he or his agents shall be solely responsible for their pre-configured offers and completing a transaction with users of the CarBrain.com service. For offers made by Service Provider that are accepted by a vehicle seller, Service Provider shall diligently contact the seller directly to provide payment and pickup arrangements for their vehicle. Service Provider agrees that towing services will not be charged to CarBrain or the seller of the vehicle and all such costs are included in the offer price submitted by Service Provider.

   3.2 Responsibility to Vehicle Sellers. Service Provider agrees to:

   1. honor offers made by Service Provider that are accepted by vehicle sellers within 7 days;

   2. provide payment to the vehicle seller in the manner agreed to in the offer;

   3. arrange for inspection, closing of the transaction, and towing of the purchased vehicle within 48 hours or otherwise with what was agreed with the seller;

   4. provide courteous and professional service to vehicle sellers;

   5. communicate directly and promptly with vehicle sellers that have accepted an offer to purchase from Service Provider;

   6. only remove the vehicle from seller’s possession with seller’s consent and payment unless agreed upon by the seller.

   3.3 Email and Phone Contact. Service Provider hereby permits CarBrain to contact Service Provider through email and phone and at Service Provider's mailing address, provided to CarBrain by Service Provider, for the duration of this agreement. Due to CarBrain’s need to communicate with its Service Providers, Service Provider cannot "opt-out" of CarBrain’ Service Provider mailing lists or phone list unless Service Provider terminates its entire Service Provider relationship with CarBrain.

4. SERVICE PROVIDER'S AUTHORITY
   Service Provider represents and warrants as follows:

1. Service Provider has full power and authority under all applicable laws and regulations to accept and by bound by these Terms and Conditions.

2. Service Provider has full power and authority under all applicable laws and regulations to purchase vehicles.

3. Service Provider has full power and authority under all applicable laws and regulations to make binding offers to buy vehicles and to receive compensation in accordance with these Terms and Conditions for receiving referrals of vehicle sellers, including but not limited to holding all necessary licenses, consents, and approvals from all private and governmental entities in all applicable jurisdictions necessary to purchase vehicles and receive referral leads.

5. PROPRIETARY RIGHTS

   5.1 License. Service Provider is hereby granted a non-exclusive, non-transferable license to use the CarBrain website http:// CarBrain.com/partner-with-us as made available through the Program in accordance with, and subject to, these Terms and Conditions during such time as Service Provider is eligible to participate, and is participating, in the Program.

   5.2 CarBrain System Intellectual Property. Service Provider acknowledges and agrees that the content made available through the Program, including, but not limited to, promotional materials, web pages, and branding, and the content and Services available through the CarBrain Site and Service are protected by CarBrain' copyrights, trademarks, patents, or other proprietary rights and laws, and may not be used in any manner other than as specified in Section 5.1 above.

   5.3 Unauthorized Access. Service Provider shall not attempt, directly or indirectly, to gain unauthorized access to any servers controlled, in whole or in part, by CarBrain or to any servers controlled, in whole or in part by any other third party that may provide services in connection with the Program.

   5.4 Notifications of Claimed Infringement by Service Provider. Service Provider agrees to assume sole responsibility for compliance by Service Provider and Service Provider's web site(s) with all applicable intellectual property laws and all other laws. In the event that CarBrain System should receive any notification of claimed infringement by Service Provider, Service Provider agrees to cooperate with CarBrain System in expeditiously responding to such notification and resolving any claim of infringement.

6. COMPENSATION

   6.1 Referral Fee. CarBrain shall be compensated by Service Provider for each offer made by Service Provider and accepted by a vehicle seller at the rates set forth by CarBrain from time to time and provided in writing or verbally to Service Provider.

   6.2 Reporting Requirement and Time of Payments. CarBrain will bill Service Provider on a biweekly or monthly basis for vehicles assigned to the service provider. Service Provider will need to notify CarBrain.com within 5 days in order to be credited for assignment cancellation for one of these reasons (see list of reasons below).. Service Provider must complete and submit an electronic dispatching confirmation to CarBrain.com for each vehicle picked up through the Program by Service Provider. Referral fees shall be paid upon receipt of the invoice provided to Service Provider by CarBrain. CarBrain reserves the right to suspend Service Provider’s participation in the Program indefinitely in the event payment is late or if it suspects improper activity or a potential breach of any of the terms in this Agreement.

   6.3 Form of Payment. Payment to CarBrain shall be made by check or credit card.

   6.4 Referral Fees for Transactions not Finalized. For situations where an offer made by Service Provider has not resulted in a vehicle purchase, Service Provider will provide CarBrain with the reason for failure to finalize the purchase of the vehicle within 5 days of the assignment date. Service Provider will be responsible for full payment of the vehicle based on the accepted offer to the seller and the Referral Fee for each vehicle for which they have an accepted offer unless the transaction has not been finalized because Service Provider was unable to reach the seller, or the vehicle was sold to a different party, or there was duplicate order, or the seller substantially misrepresented vehicle condition, location, title status and a counteroffer by Service Provider was rejected by seller. Counter offers are unacceptable unless one of the previous conditions was met.

   6.5 Waiver. Service Provider expressly waives any statutory or other legal protection in conflict with the provisions of this Section 6.

   6.6 Disputes. Service Provider has access to CarBrain's Service Provider Program statistics and activity and specifically agrees t o file any tracking or Referral Fee disputes, as well as, any other disputes and discrepancies within 15 days after the invoice has been presented for payment. CarBrain will not accept disputes filed after 15 days of the date on which the invoice was presented and Service Provider waives and forfeits forever any rights to a potential claim made after such date.

7. CONFIDENTIALITY
   The term "Confidential Information" means any information or material, which is proprietary to CarBrain, whether or not owned or developed by CarBrain, which is not generally known other than by CarBrain, and which Service Provider may obtain through any direct or indirect contact with CarBrain or customers of CarBrain such as, but not limited to business records and plans, financial statements, customer lists and records, any customer correspondence concerning CarBrain System, credit card information, technical information, pricing structure, source code and/or object code, copyrights and intellectual property, competitive information, and other proprietary information. Service Provider represents that it will protect any confidential material and information, which may be disclosed between CarBrain' customers and the Service Provider at all times. Service Provider understands and acknowledges that the Confidential Information has been developed or obtained by CarBrain by the investment of significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of CarBrain, which provides CarBrain with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the disclosure of the Confidential Information, Service Provider agrees to hold in strictest confidence and to not disclose under any and all circumstances the Confidential Information to any person or entity without the prior written consent of CarBrain. Service Provider will not cop y or modify any Confidential Information without the prior written consent of CarBrain.
   Further, Service Provider shall not disclose any Confidential Information to any of Service Provider's customers, contractors, agents or employees, except those contractors or employees who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. If it appears that Service Provider has disclosed or has threatened to disclose Confidential Information in violation of this Agreement, CarBrain shall be entitled to an injunction to restrain Service Provider from disclosing, in whole or in part, the Confidential Information. CarBrain shall not be prohibited by this provision from pursuing other remedies, including but not limited to a claim for losses and damages.

8. TERMINATION

   8.1 Termination. Service Provider's participation in the Program is terminable at any time and for any reason by either party by providing written notice of termination to the other party at least two weeks prior to such termination. Without limiting the foregoing, Service Provider's participation in the Program shall be deemed automatically terminated immediately and all commissions then earned by CarBrain becoming immediately then due upon Service Provider's violation of any of these Terms and Conditions or of any applicable law or regulation.

   8.2 Notice of Termination. CarBrain and Service Provider shall provide notice of termination pursuant to Section 16.0 governing notices. Where Service Provider's participation in the Program is terminated automatically as described in Section 8.1 above, no notice of termination need be provided for such termination to be effective.

   8.3 Effect of Termination. Upon termination, Service Provider shall immediately cease and desist from exercising any rights conferred by these Terms and Conditions, including, without limitation, from making any use of the CarBrain.com web site, trademarks, and branding made available through the Program. Upon termination, Service Provider may not register for any subsequent participation in the Program or rejoin the Program, without the prior, written consent of CarBrain which may be withheld or refused in the sole discretion of CarBrain.

   8.4 Survival. The provisions of Sections 3, 4, 5, 7, 8.4, 9, 10, 11, 12, 15, 17, 18, and 21 shall survive any termination of Service Provider's participation in the Program.

9. SERVICE PROVIDER'S PRIVACY

   9.1 Privacy and Third Parties. CarBrain may provide to third parties the information that Service Provider submits in registering for the Program as CarBrain deems necessary.

   9.2 Password. Service Provider shall receive a password to access Service Provider's account. Service Provider is entirely responsible for any and all activities that occur under Service Provider's password. Service Provider agrees to keep its password strictly confidential, to allow no other person or company to use its password, and to notify CarBrain promptly if Service Provider has any reason to believe that the security of its account has been violated.

   9.3 Technical Access. Service Provider acknowledges and agrees that the technical processing of Service Provider's registration information is and may be required: (a) for the Program to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Program; or (d) to conform to other, similar technical requirements. Service Provider also acknowledges and agrees that CarBrain may access Service Provider's account and it’s contents at any time as necessary to identify or resolve technical problems or respond to complaints about the Program or for any other reason CarBrain sees fit; provided, however, that nothing in this Section shall impose such a duty on CarBrain.

   9.4 Privacy Policy. Except as expressly provided in these Terms and Conditions, information submitted by Service Provider in connection with the Program shall be governed by the CarBrain.com Privacy Policy.

10. INDEMNITY
    Service Provider agrees to indemnify and hold harmless CarBrain, and its parents, subsidiaries, other Service Providers, officers, directors, shareholders, employees and agents, from any claim or demand, including, without limitation, penalties, interest, reasonable attorneys' fees and costs claimed, demanded, or incurred in connection with any claim or demand, made by any third party due to or arising directly or indirectly out of Service Provider's conduct, Service Provider's web site(s), Service Provider's participation in the Program, any alleged violation of these Terms and Conditions, any alleged violation of any applicable law or regulation, or any alleged violation of any rights of another. CarBrain reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Service Provider, but doing so shall not excuse Service Provider's indemnity obligations. CarBrain shall have the right to participate in the defense of all claims pursuant to this Section.

11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

    11.1 DISCLAIMER OF WARRANTIES. THE PROGRAM, INCLUDING ALL SERVICES PROVIDED IN CONNECTION WITH THE PROGRAM, ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, CarBrain DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE PROGRAM, INCLUDING THE SERVICES PROVIDED IN CONNECTION WITH THE PROGRAM. SERVICE PROVIDER UNDERSTANDS AND AGREES THAT ANY INFORMATION RECEIVED OR OFFERS MADE THROUGH PARTICIPATION IN THE PROGRAM IS DONE AT SERVICE PROVIDER'S OWN DISCRETION AND RISK AND THAT SERVICE PROVIDER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO SERVICE PROVIDER THAT RESULTS. SERVICE PROVIDER ACKNOWLEDGES AND AGREES THAT CarBrain DOES NOT INVESTIGATE OR WARRANT THE ACCURACY OR TRUTHFULNESS OF INFORMATION SUBMITTED BY POTENTIAL VEHICLE SELLERS AND IS NOT RESPONSIBLE OR LIABLE FOR ANY SUCH INFORMATION ACCESSIBLE THROUGH CarBrain.com. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you.

    11.2 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL CarBrain BE LIABLE TO SERVICE PROVIDER ON ACCOUNT OF SERVICE PROVIDER'S PARTICIPATION IN THE PROGRAM, USE OR MISUSE OF THE PROGRAM, RELIANCE ON THE PROGRAM, INABILITY TO PARTICIPATE IN THE PROGRAM, OR FOR THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE PROGRAM. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF CarBrain HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE PROGRAM OR ANY INFORMATION THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE CarBrain WEB SITE. SUCH LIMITATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN SOME JURISDICTIONS, LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.

12. RELEASE
    Service Provider hereby agrees to release CarBrain and its parents, subsidiaries, other Service Providers, officers, directors, agents, shareholders, representatives, and employees from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected , disclosed or undisclosed, that Service Provider may have against them arising out of or in any way related to such disputes and/o to the Program. Service Provider hereby agrees to waive all laws that may limit the efficacy of such releases.

13. NO RESALE, ASSIGNMENT, OR SUBLICENSING
    Service Provider agrees not to resell, assign, sublicense, otherwise transfer, or delegate its rights or obligations under these Terms and Conditions without the prior express written authorization of CarBrain.

14. FORCE MAJEURE
    Under no circumstances shall CarBrain be liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light , or air conditioning.

15. NOTICES
    Notices or communications pursuant to these Terms and Conditions shall be sent by electronic mail and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the following addresses: (a) if to CarBrain, such notices shall be addressed to [email protected]; (b) if to Service Provider, such notices shall be addressed to the email address specified when Service Provider registered for participation in the Program, or (c) such other address as either party may give the other by notice as provided above.

16. ENTIRE AGREEMENT
    These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter here of and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties.

17. CHOICE OF LAW AND FORUM
    These Terms and Conditions shall be governed by and construed in accordance with, and all legal issues arising from or related to Service Provider's participation in the Program shall be determined by, the laws of the State of Delaware without regard to its conflict of law provisions. The state and Federal courts located in Delaware shall be the exclusive forum and venue to resolve any, and all disputes arising out of or relating to these Terms and Conditions or to Service Provider's participation in the Program.
    Service Provider and CarBrain consent to personal jurisdiction and venue exclusively in the appropriate state and Federal courts located in Delaware.

18. LIMITATION OF ACTIONS
    Service Provider agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to participation in the Program or to these Terms and Conditions must be filed within One (1) year after such claim or cause of action arose, or be forever barred.

19. CONSTRUCTIONS
    All headings in these Terms and Conditions are for convenience only and shall have no legal or contractual effect. Whenever the context permits, the use of a particular gender shall include the masculine, feminine and neuter genders, and any reference to the singular or the plural shall be interchangeable with the other. The language in all parts of this Agreement shall in all cases be construed according to its fair meaning and not strictly for or against any party, and any rule that ambiguities shall be construed against the drafter of a document shall not be applicable with respect to this Agreement.

20. RELATIONSHIP OF PARTIES
    CarBrain and Service Provider are independent contractors under these Terms and Conditions, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party pursuant to these Terms and Conditions has authority to enter into agreements of any kind on behalf of the other and neither party shall be considered the agent of the other. Under these Terms and Conditions, CarBrain is contracting solely to provide marketplace services for Service Provider in accordance with these Terms and Conditions.

21. SUCCESSORS AND ASSIGNS
    These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.

22. DISPUTE RESOLUTION.
    This Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of laws principles. The United Nations Convention on the Sale of Goods does not apply to this Agreement. In the event of any dispute arising out of or relating to this Agreement, the parties shall seek to settle the dispute via direct discussions. If a dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute via voluntary non-binding mediation, before resorting to arbitration. A mediator will be selected by voluntary agreement of both parties, or in the event both parties cannot agree on a mediator, a mediator will be selected in accordance with the rules of the American Arbitration Association. The mediation shall be held in Miami, Florida. Each party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any dispute that remains unresolved following mediation shall be settled by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. Th e place of arbitration will be Miami, Florida. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Florida. If for any reason any provision or portion of this Agreement is found to be unenforceable, that provision or portion of the Agreement will be enforced to the maximum extent possible, so as to, affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.