Rough Trade™ is a service of Advanced Remarketing Services, Inc.. Rough Trade™ connects wholesale buyers and sellers of vehicles via ARS’s mBid® platform. mBid® is a vehicle remarketing platform connecting independent vehicle dealers to wholesale buyers.
1. Posting of Vehicles:
ARS agrees to offer for bid through the ARS mBid® Module, Vehicles from Dealer Party and accepted for posting by ARS. Submission of vehicles to ARS for posting may be made by web application, email or system interfaces. Dealer Party authorizes ARS to edit photographs of Vehicles for the sole, limited purpose of properly formatting photographs on the mBid® Module. Dealer Party may withdraw a Vehicle from posting any time prior to bid approval. Dealer Party will only post Vehicles for which it has authority to post for sale on the mBid® Module.
2. Bid Process
ARS agrees to post Vehicles for bid on the mBid® Module following its acceptance of the posting. All bidders shall be required to enter into a Bidder Registration Agreement in a form required by ARS. ARS represents and warrants to Dealer Party that it requires all bidders to agree by signed agreement that (i) selection of a bidder to receive and purchase a Vehicle (referred herein as the “Award Bidder”) is solely within the discretion of the ARS, and (ii) sale of a Vehicle is complete only after the Award Bidder has made payment in full and received executable title documents and a bill of sale.
ARS shall perform administrative support services on behalf of Dealer Party as follows:
a. Operational Support: ARS shall perform operational support services for the Dealer Party, which shall consist of preparation (to the extent necessary), selection of Award Bidder, collection of purchase price, logistics and transfer of title of all Vehicles posted to the mBid® Module hereunder. ARS will maintain a network of service providers who will assist in the performance of such support services as required by ARS. ARS represents and warrants that it will manage such service providers to ensure that service providers are in substantial accordance with: (i) the Agreements, and ii) all applicable laws and regulations.
b. Appointment of ARS: Dealer Party hereby appoints ARS and its duly authorized employees and agents to act as its Attorney-In-Fact for the limited purpose of signing all papers and documents necessary to the sale and subsequent title transfer of the vehicles consigned by Dealer Party to ARS for its auction of the vehicles, including without limitation, any title, title transfer document, and/or reassignment of odometer disclosure statements as required by applicable law.
4. Compensation and Other Fees:
a. Standard Fees: For the services provided hereunder, the Dealer Party shall pay ARS the compensation and fees set forth on Exhibit A.
b, Net Sale Proceeds: ARS will make payment to Dealer Party of net sale proceeds from Vehicle sales and provide invoices of deficit files weekly after receipt of Executable Title from Dealer Party.
5. DMV and Title Services:
a. Dealer Party hereby grants ARS a power of attorney to act on behalf of the Dealer Party to apply for or execute vehicle titles, issue bills of sales, execute odometer statements, and issue, execute and deliver all other documents required or related to the transfer of ownership of a Vehicle from the Dealer Party to the Award Bidder (“Title Documents”) in compliance with all applicable laws and regulations. Dealer Party will execute and deliver to ARS a power of attorney in any format required under applicable state law in furtherance of the foregoing.
b. ARS shall not transfer ownership of a Vehicle to an Award Bidder until ARS has received proper Title Documents from Dealer Party.
c. Dealer Party represents and warrants to ARS that with respect to each Vehicle submitted for posting, Dealer Party will have good title to such Vehicle at the time of such posting and lawful authority to sell, assign, transfer and deliver such title to Award Bidder, free and clear of all liens and encumbrances.
6. Logistics & Storage:
a. ARS represents and warrants that it shall require by contract with Bidders that, upon notice that the Bidder is the Award Bidder on a Vehicle, the Award Bidder:
i. shall be responsible for all expenses incurred in retrieving Vehicles;
ii. is required to store the Vehicle at no charge for up to 20 days until the proper Title Documents are received by ARS;
iii. may not resell, post for resale, dismantle, remove any parts or otherwise work on the Vehicle until title and the Title Documents have been transferred to Award Bidder; and
iv. risk of loss transfers to the Award Bidder such that the Award Bidder is responsible for the security of stored Vehicles.
b. ARS shall require by contract with Bidders that in the particular case where executable title cannot be obtained by ARS within ninety 30 days, Award Bidder shall assist and cooperate with ARS in returning the Vehicle in substantially the same condition that Award Bidder received it as directed by ARS.
7. Compliance With Laws and Insurance:
a. ARS represents and warrants that it will comply with all federal, state, and local laws, regulations, ordinances, and statutes applicable to the transactions contemplated under the Agreements.
b. ARS shall obtain and maintain in force at all times public liability, automobile bodily injury and property damage liability insurance, in limits of no less than one million dollars ($1,000,000.00) per accident or per occurrence.
8. Indemnification and Hold Harmless:
Dealer Party shall indemnify and hold ARS, its officers, employees and ARSs harmless against any and all liability, loss, expense, including reasonable attorney fees, or claims for injuries or direct damages (not including indirect, consequential or punitive damages) arising out of Dealer Party’s performance of the Agreements, but only in proportion to and to the extent such liability, loss or expense, attorney fees, or claims for injury or direct damages are caused directly by or result from the negligent or intentional acts or omissions of Dealer Party, its officers, employees or agents.
9. Dispute Resolution:
a. Either party may request a meeting or telephone conference to discuss any controversy or claim arising out of or relating to the Agreements, or the alleged breach of any term, condition, or obligation thereof by providing written notice to the other party concerning the existence of such claim or controversy. The issue may, upon the mutual consent of all parties, be submitted to non-binding mediation under the supervision of the American Arbitration Association if (i) a meeting or conference cannot be arranged within ten (10) days of the date of such written request, or (ii) following such meeting or conference the controversy, claim or breach is not resolved to the satisfaction of the parties. In the event that mutual consent to mediation shall not be obtained within thirty (30) days of written notice from any party to the other concerning the existence of a claim or controversy, the application of this paragraph shall be null and void.
b. Any controversy or claim of either of the parties arising out of or relating to the Agreements, or the alleged breach of any term, condition, or obligation thereof, which is not resolved by non-binding mediation, shall be settled by final and binding arbitration before one (1) arbitrator agreed to by the parties under and governed by the Commercial Arbitration Rules of the American Arbitration Association to be held in the State of Illinois, and judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. If the parties are unable to agree upon an arbitrator, the arbitrator shall be appointed as provided in the Commercial Arbitration Rules of the American Arbitration Association.
10. License & Intellectual Property
b. Dealer Party agrees to protect the Services, and their proprietary content, information and other materials, from unauthorized access or use, and will not use the Services or such proprietary content, information or other materials except as expressly permitted herein.
c. Dealer Party may not copy, download, use, redesign, reconfigure, or retransmit anything from the Services. The service marks and trademarks of ARS are owned by ARS.
a. Except as expressly set forth herein, “Confidential Information” means all non-public information, data or materials of either party hereto or its affiliates (“Disclosing Party”) disclosed to, or received by the other party hereto or its affiliates (“Receiving Party”) concerning the Disclosing Party, regardless of whether such information, data or materials is (i) disclosed verbally, in writing, in graphic or machine readable format, by permitting inspection of tangible objects, or in any other form, or (ii) designated as “Confidential,” “Proprietary” or with some similar designation. Confidential Information includes, without limitation, any information about Disclosing Party’s and its affiliates’ customers, business partners, inventions, discoveries, processes, technology, computer software, source code, and any business methods and procedures. Confidential Information also includes “Non-public Personal Information” or “Personally Identifiable Financial Information” about a Disclosing Party’s customers as defined by applicable state or federal law, including but not limited to Title V of the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq., as amended), and the rules and regulations issued thereunder (“GLBA”) (Non-public Personal Information and collectively with Personally Identifiable Financial Information, “Customer Information”). Confidential Information also includes the Agreements, any discussions or negotiations between the parties pertaining to the Agreements or the subject matter hereof and any future discussions or negotiations between the parties related to any future agreement between the parties.
b. Confidential Information shall not include information which (a) is in the public domain prior to or at the time of disclosure by the Disclosing Party or thereafter becomes part of the public domain through no fault of the Receiving Party, (b) was, at the time of receipt, already known or lawfully possessed by the Receiving Party as evidenced by the Receiving Party’s records, (c) is lawfully obtained by the Receiving Party from a third party without breach of the Agreements or breach of the third-party’s obligations of confidentiality, (d) is independently developed without reliance upon the Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession, or (e) is specifically authorized to be disclosed in writing by the Disclosing Party.
c. Receiving Party (a) will limit its use of the Confidential Information to the sole purpose of performing under the Agreements, (b) shall not disclose any of the Disclosing Party’s and/or its affiliates’ Confidential Information to any third party or to any of its respective directors, partners, officers, employees, agents, subcontractors and consultants (“Representatives”), except to those Representatives who have a specific need to know the Confidential Information for the purpose of performing under the Agreements, and (c) shall protect the Confidential Information in strict confidence, using at least the same degree of care it uses to protect its own confidential or proprietary information, but no less than a reasonable degree of care or as required by law. The Receiving Party shall advise its Representatives having access to the Confidential Information of the confidential nature thereof and shall cause its Representatives to comply with these terms and conditions and shall be responsible for and liable to the Disclosing Party for any breach of the Agreements by its Representatives.
d. Notwithstanding anything to the contrary contained in the Agreements, regarding Customer Information delivered or made available to Receiving Party pursuant to the Agreements, Receiving Party agrees that (a) Disclosing Party owns and retains all rights in and to all of Disclosing Party’s Customer Information, (b) it shall use Customer Information solely for purposes of carrying out its obligations under the Agreements and for no other purposes (including any use permitted by an exception to the GLBA); (c) it shall use at least the same degree of care it uses to protect its own confidential or proprietary information against accidental, unauthorized or unlawful access, disclosure, destruction, loss or alteration, (d) it shall notify Disclosing Party in writing within 3 business days of any known breach or unauthorized access of Confidential Information and include to the extent known the extent and scope of the breach and the names of specific customers impacted by the breach as soon as such information is available, (e) it shall, at its sole expense, cooperate with Disclosing Party to resolve the breach and notify all affected customers in Disclosing Party’s sole determination, and (f) it shall reimburse Disclosing Party for reasonable out-of-pocket costs of research, customer notification, credit monitoring and related direct expenses incurred by Disclosing Party relating to such breach or unauthorized access to such Customer Information.
e. If the Receiving Party or its Representatives become obligated to disclose Confidential Information by law, rule, regulation or legal process, the Receiving Party shall, unless prohibited by the same, promptly notify the Disclosing Party of such required disclosure so as to permit the Disclosing Party, at Disclosing Party’s expense, a reasonable opportunity to seek a protective order or waive this requirement. Additionally, the Receiving Party shall reasonably cooperate with the Disclosing Party, at Disclosing Party’s expense, to (i) narrow the scope of the disclosure, (ii) make such disclosure only to the extent so required, and (iii) obtain an order or other reliable assurances that confidential treatment will be afforded to such Confidential Information.
f. Except for Customer Information (which obligations survive indefinitely or as long as allowed for under applicable law), the Receiving Party’s confidentiality obligations for all Confidential Information disclosed shall continue for 2 years following the date of disclosure.
g. At Disclosing Party’s discretion, upon termination of the Agreements or upon written request, the Receiving Party shall promptly return or securely destroy all Confidential Information (and all copies of Confidential Information) in its possession (regardless of the medium in which the Confidential Information is retained). Upon return or destruction, the Receiving Party shall provide the Disclosing Party written certification that, to its knowledge, all such Confidential Information has been returned or securely destroyed. Termination of the Agreements or the return or destruction of any Confidential Information does not invalidate these provisions or release either party from any obligation of confidentiality under this Agreement.
12. General Provisions:
a. The Agreements constitute the entire agreement between the parties and supersedes all previous agreements, promises, representations, understandings, and negotiations, whether written or oral, with respect to the subject matter hereto.
b. If any provision of the Agreements is determined to be invalid under or in conflict with the laws or regulations of any jurisdiction, the remainder of the Agreements shall not be affected by said invalidity or conflict.
c. These terms and conditions may be amended only by a written agreement executed by the parties hereto and no future or additional terms shall be incorporated except as expressly agreed to by ARS in writing.
d. The Agreements shall be governed by and construed in accordance with the laws of the State of Rhode Island, without regard to conflicts of laws principles.
e. The parties shall be excused from any failure to perform its obligations where such failure is caused by unforeseeable events or circumstances beyond the control of such party including, without limitation, storm, flood, fire, unusually severe weather, explosion, acts of God or of the public enemy, riot, war, terrorist acts, sabotage, malicious mischief, inability to procure (notwithstanding good faith and diligent efforts), or general shortages of, equipment, facilities, materials, or supplies in the open market, or delay of contractors due to such causes and not caused by the act or failure to act by the party in such performance.
Compensation and Fees Payable by Dealer Party to ARS
ARS Selling Fee: $60 per approved vehicle sale by ARS;
No charge for cancelled or rejected listings.
Application for Title (if required): State Fee + $10
Duplicate Title Processing (if requested): State Fee + $10
Vehicle License Fee Refunds (applicable states): Actual Cost
Removal, Destruction, or Mailing of License Plates: Actual Cost
Federal Odometer Statement: Actual Cost