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Terms of Use

Terms of Use

Effective Date: April 26, 2020

The following Terms of Use (these “Terms of Use”) apply whenever you access, use, view or provide information or documents online through the various West Herr Automotive Group dealership and affiliate websites (the "Site"). Please review the following terms carefully. By accessing or using the Site, you signify your agreement to these Terms of Use. If you do not agree to these Terms of Use, you may not access or use the Site. References to "you" or "your" or variations thereof shall mean individual users of the Site, and references to "WH," "we," "our," "us," “West Herr Automotive Group”, “West Herr”, or variations of any of these, shall mean West Herr Automotive Group and its dealerships, service and collision shops, and other affiliates, acting as a retailer or wholesaler of automotive sales and services to you.

These Terms of Use include a release by you of all claims for damage against WH that may arise out of your use of the Site. By using the Site, you agree to this release.

These Terms of Use also require that all disputes be resolved through mandatory, binding arbitration and prohibit class relief. By using the Site, you are agreeing that arbitration is the exclusive means of resolving disputes with WH to the extent allowed by law.

PRIVACY POLICY

WH respects the privacy of its users. Please refer to the Privacy Policy (found here: https://www.westherr.com/privacy.htm which explains how WH collects, uses, and discloses information that pertains to your privacy. When you access or use the Site, you signify your agreement to the Site Privacy Policy.

ABOUT WEST HERR AND THE SITE

WH offers visitors and users of the Site a destination to find information on the purchase, lease, service, repair and trade-in of a vehicle. Depending on your use of the Site, you may be asked to provide, enter or upload information about you and/or a vehicle.

RULES FOR USER CONDUCT AND USE OF THE SITE

You are solely responsible for any information, data, documents, sounds, images or any other content you upload, provide, publish, transmit, display, communicate, link or otherwise make available through or on the Site ("User Content"). You agree that WH in certain circumstances is only acting as a passive conduit for your online distribution and publication of some or all of your User Content. Your permission to use the Site is conditioned upon the Use Restrictions and the Posting and Conduct Restrictions below. You further agree that WH’s use of the User Content is subject to these Terms of Use, as well as WH’s Privacy Policy and any other agreements or consents you may have with WH or other third parties.

USE RESTRICTIONS.

You will only use the Site for your own benefit. You agree that you will not under any circumstances:

  • post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;

  • use the Site for any unlawful purpose or for the promotion of illegal activities;

  • attempt to or harass, abuse or harm another person or group;

  • provide false or inaccurate information or use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of content;

  • interfere or attempt to interfere with the proper functioning of the Site;

  • make any automated use of the Site or any computer system owned or used by WH, or take any action that WH deems to impose or to potentially impose an unreasonable or disproportionately large load on WH's servers or network infrastructure;

  • bypass any robot exclusion headers or other measures WH takes to restrict access to the Site or use any software, technology, or device to scrape, spider, or crawl the Site or harvest or manipulate data;

  • use the communication systems provided by or contacts made on the Site for any commercial solicitation purposes; or

  • publish or link to malicious content intended to damage or disrupt another user's browser or computer.

POSTING AND CONDUCT RESTRICTIONS. The following rules pertain to User Content. By transmitting and submitting any User Content while using or accessing the Site, you agree, represent and warrant as follows:

  • You will comply with these Terms of Use;

  • You are solely responsible for the activity that occurs while accessing or using West Herr Curbside Document Upload Services or the Site;

  • You own or have the necessary licenses, rights, permissions, and consents to use and authorize WH to use any and all User Content submitted by you;

  • Your contributions and any reviews will be unbiased and objective and any reviews will be authentic and You will not post information that is false or inaccurate.

  • You will only post accurate documents and will not alter images in any way in an attempt to mask the true appearance of a document or vehicle photo.

  • You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from the rightful owners to specifically submit such content to the Site; and

  • You hereby affirm WH has the right to determine whether any of your User Content submissions are appropriate and comply with these Terms of Use.

WH takes no responsibility and assumes no liability for any User Content that you or any other user or third party post or send over the Site. You understand and agree that any loss or damage that occurs as a result of the use of any User Content that you make available or access through your use of the Site is solely your responsibility. WH is not responsible for any public display or misuse of your User Content.

WH does not and cannot pre-screen or monitor all User Content. However, at WH's discretion, WH or technology that WH employs may monitor and/or record your interactions with the Site.

Though WH strives to enforce these Terms of Use, you may be exposed to content that is inaccurate or objectionable. WH reserves the right, but is not obligated, to limit or deny a user's access to the Site or take other appropriate action if a user violates these Terms of Use or engages in any activity that violates the rights of any person or entity or which WH deems unlawful, offensive, abusive, harmful or malicious. Unauthorized use may result in criminal and/or civil prosecution under federal, state and local law. If you become aware of misuse of the Site, please contact help@westherr.com.

LICENSE GRANT

By posting or submitting any User Content on the Site, you expressly grant, and you represent and warrant that you have a right to grant, to WH, a royalty-free, sub-licensable, transferable, perpetual, irrevocable, nonexclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Site.

INTELLECTUAL PROPERTY

The Site and related domain are owned by WH. You acknowledge and agree that WH and WH's licensors retain ownership of all intellectual property rights of any kind related to the Site, including applicable copyrights, trademarks and other proprietary rights. Other product and company names that are mentioned on the Site may be trademarks of their respective owners. WH reserves all rights that are not expressly granted to you in in these Terms of Use. Nothing in these Terms of Use gives you a right to use any trade names, trademarks service marks, logos, trade dress, domain names or other distinctive brand features included on the Site, and you will not use any such intellectual property in a way that is likely to cause confusion about the owner or authorized use of such intellectual property.

LINKS TO OTHER SITES AND/OR MATERIALS

As part of the Site, WH may provide you with convenient links to third party websites. These links are provided as a courtesy. WH has no control over linked websites or the promotions, materials, information, goods or services available on these third party websites. WH is not responsible for and does not endorse or warrant any materials, information, goods or services available through any linked websites or any privacy or other practices of such websites. WH may terminate any link at any time.

ACCURACY OF INFORMATION

WH does not warrant that descriptions its products and services, or information are current, complete or free from error. Instead third party suppliers of information (e.g., certification programs) are solely responsible for keeping information provided for use on the Site or about their businesses and locations up to date and accurate. Moreover, to the extent that the Site displays content licensed from third party sites, only those third party content suppliers are responsible for the accuracy or completeness of the content they make available to the Site.

EMAIL MAY NOT BE USED TO PROVIDE NOTICE TO THE SITE

Communications made through any Site e-mail and messaging system will not constitute legal notice to WH or any of its officers, employees, agents or representatives in any situation where notice to WH is required by contract or any law or regulation.

USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM

For contractual purposes, you (a) consent to receive communications from WH in any electronic form; and (b) agree that all Terms of Use, agreements, notices, disclosures, and other communications that WH provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your non-waivable rights.

DISCLAIMER; LIMITATION OF DAMAGES; RELEASE

THE SITE, AND ALL FUNCTIONALITY THEREIN OR THEREON, ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WH MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SITE INCLUDING, WITHOUT LIMITATION, DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SITE.

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WH, ITS PARENT, SUBSIDIARIES, AFFILIATES AND JOINT VENTURES, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR INFORMATION OR CONTENT; (B) YOUR USE OR INABILITY TO USE THE SITE OR WEST HERR CURBSIDE DOCUMENT UPLOAD SERVICES; (C) THE SITE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SITE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH WH OR ANY OTHER USER OF THE SITE.

THE LIMITATIONS ON OUR LIABILITY WILL APPLY WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

NOTHING IN THESE TERMS OF USE SHALL EXCLUDE OR LIMIT OUR WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

If you have a dispute with WH concerning the Site or arising from or relating to your use of the Site, you release WH and WH's parent, subsidiaries, affiliates and joint ventures, and each of their officers, directors, employees, agents, licensors and partners, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes to the extent allowed by law.

INDEMNITY

You agree to defend, indemnify and hold harmless WH, its parent, subsidiaries, affiliates and joint ventures, and each of their officers, directors, employees, agents, licensors and partners, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, reasonable attorney's fees) arising from: (a) your use of and access to the Site; (b) your violation of any provision of these Terms of Use; (c) your violation of any third party right, including, without limitation, any copyright, property or privacy right; or (d) any claim that any content submitted by you causes damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your use of the Site.

ENTIRE AGREEMENT; MODIFICATION OF TERMS OF USE

These Terms of Use, together with the Privacy Policy and any other legal notices published by WH on the Site shall constitute the entire agreement between you and WH regarding the Site. WH can amend these Terms of Use at any time and will update these Terms of Use in the event of any such amendments. It is your sole responsibility to check the Site from time to time to view any such changes to these Terms of Use. If you continue to use the Site following any such change, you signify your agreement to WH's revisions to these Terms of Use. Any changes to these Terms of Use (other than as set forth in this paragraph) or waiver of WH's rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of WH. No purported waiver or modification of these Terms of Use by WH via telephonic or email communications shall be valid.

GENERAL TERMS; LIMITATION ON CAUSES OF ACTION

If any portion of these Terms of Use is held invalid or unenforceable, that portion will be construed so as to be limited or reduced to be consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of WH to enforce any provision of these Terms of Use will not be considered a waiver of WH's right to enforce such provision. WH's rights under these Terms of Use will survive any termination of these Terms of Use.

YOU AGREE THAT ANY CAUSE OF ACTION RELATED TO OR ARISING OUT OF YOUR USE OF THE SITE MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

DISPUTES

ALL DISPUTES OR CLAIMS BETWEEN YOU AND WH RELATING IN ANY WAY TO YOUR USE OF THE SITE, WILL BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION TO BE CONDUCTED IN BUFFALO, NEW YORK TO THE EXTENT ALLOWED BY LAW, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT YOUR INDIVIDUAL CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. TO BEGIN AN ARBITRATION PROCEEDING, YOU MUST SEND A LETTER REQUESTING ARBITRATION AND DESCRIBING YOUR CLAIM TO WH'S LEGAL COUNSEL, ATTN: WEST HERR LEGAL COUNSEL, 3552 SOUTHWESTERN BLVD. ORCHARD PARK, NEW. THE ARBITRATION WILL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING, WHERE APPLICABLE, THE AAA'S SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES. THE AAA'S RULES ARE AVAILABLE AT WWW.ADR.ORG OR BY CALLING 1-800-778-7879. PAYMENT OF ALL FILING, ADMINISTRATION AND ARBITRATOR FEES WILL BE GOVERNED BY THE AAA'S RULES.

EACH PARTY AGREES THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY AND NOT ON A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THESE TERMS OF USE RELATING TO ARBITRATION WILL REMAIN IN FORCE. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL. EACH PARTY ALSO AGREES A PARTY MAY BRING SUIT IN COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.

ASSIGNMENT

WH may assign or delegate these Terms of Use and/or the Site Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms of Use or the Site Privacy Policy without WH's prior written consent, and any unauthorized assignment and delegation by you is void.

APPLICABLE LAWS; VENUE

These Terms of Use and your use of the Site are governed by the federal laws of the United States of America and the laws of the State of New York. Any action related to the Site and not otherwise subject to the arbitration provisions above ,will be filed only in the appropriate state or federal court located within Erie County in the State of New York. By using the Site, you signify your irrevocable consent to the exclusive personal jurisdiction of the state and/or federal courts in Erie County in the State of New York and hereby irrevocably waive any defense that such forum is inconvenient.

SITE CONTACT

In the event you need to contact the Site, please contact WH by sending an email to help@westherr.com. If you need to contact the dealership regarding a vehicle, please reach out to such dealership directly.

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