TERMS AND CONDITIONS
DAG TERMS AND CONDITIONS
AGA Terms and Conditions
Updated: September 6/2017
By attending any of AGA sites or using any of AGA services, , you agree, for yourself, your spouse, your client, and your representatives (collectively, "you"), to abide by the following terms and conditions, as amended from time to time by AGA:
1. AGA: These terms and conditions shall benefit AGA LLC and affiliates, These terms and conditions are in addition to, and not in lieu of, any more specific agreements you may have or make with AGA (e.g., sales invoices, consignment agreements, online visitor agreements, privacy policies, loan agreements, etc.). To the extent there is any conflict between these terms and conditions and other more specific agreements you have signed with AGA, those other more specific agreements will control. AGA may amend these terms any time by posting an amended version at its website, which shall become effective on the date of posting. Time is of the essence with respect to all of your duties hereunder.
3. Fairness and Courtesy: You agree to behave in a fair, ethical, courteous, and civil manner in your interactions with us, our personnel, and our other customers while participating in any AGA websites / sites or when otherwise using any of AGA services. Should you have issues or concerns with the behavior of our personnel or other customers while communicating with one of AGA’S agents that cannot be resolved quickly and civilly on your own, you will raise those issues discreetly with our management.
6. Terms of Sale: You agree to the following terms of sale as well as AGA vehicle arbitration policy:
a. Buyer is the transferee and agrees to purchase the Vehicle; Seller is the transferor and agrees to sell the Vehicle. You acknowledge and agree that you are a sophisticated party and agree to satisfy yourself as to the condition and value of a Vehicle and the terms of purchasing or selling. .
b. Any adjustments or rejections must be raised the day of sale and resolved prior to settlement. Vehicles must be paid for on the day of purchase, or the sale may be considered null and void at AGA discretion.
c. Vehicles shall be removed from AGA affiliates premises no later than the sixth (6th) day following the date of sale, and thereafter, AGA may charge a reasonable daily storage fee of up to $25 per day should any Vehicle be left on AGA affiliates premises.
d. Title to a Vehicle does not pass to Buyer until good funds are received. Buyer grants AGA a security interest in each Vehicle to secure payment of the purchase price and of any other debt owing from Buyer to AGA or its affiliates. You agree that AGA may resell any Vehicle, if retained or repossessed, at a regular AGA sale or through any affiliated sale, including AGA online sales channels, which are established commercially reasonable markets for the sale of motor vehicles.
e. Buyer agrees:
1. to purchase the applicable Vehicle for the purchase price established by the AGA and shown on the bill of sale;
2. before settling for such Vehicle, to check the serial and/or engine numbers on such Vehicle with those on the title and to check the actual condition of such Vehicle with its description and with the announcements and Seller disclosures, if any;
3. not to resell such Vehicle until good funds have been transmitted to AGA;
4. upon making settlement, regardless of payment method, to consider the sale a fully consummated cash transaction for present consideration;
5. that no stop payment of any Buyer check to AGA affiliates shall be honored;
6. that any stop payment order of a check/draft or giving a check/draft which is returned unpaid shall be deemed to be evidence of fraud existing at the time of payment and shall be construed as an intent to defraud in order to obtain the Vehicle and/or its title;
7. that AGA may deposit any check or draft immediately upon receiving it, regardless of whether such Vehicle ‘s certificate of title has been submitted by Seller or whether Buyer has asked AGA to hold the instrument;
8. to make any claim of defects in such Vehicle with Seller, who shall be solely responsible for those claims, and to immediately notify AGA of such claims pursuant to its policies;
9. that Buyer will comply with Subsection 6(c) above with respect to removal of Vehicles from AGA affiliates premises and payment of daily storage fees; and
10. that Buyer is responsible for Buyer ‘s own transportation of such Vehicle.
11. as an option. Customer may use AGA transportation agent for assistance.
12. Seller represents and promises that Seller is the true and lawful owner of the Vehicle being sold; that the Vehicle is free from all liens and encumbrances; that Seller has good right and full power and authority to sell and transfer title to the Vehicle; and that Seller will warrant and defend the Vehicle against the claims and demands of all persons whomsoever.
13. You agree that any amounts owing to AGA may be deducted from any proceeds due to you and that AGA may stop payment or refuse to authorize payment on any check or draft to you pursuant to this right of set off. AGA may hold any of your property in AGA possession for a reasonable period of time pending any odometer fraud, VIN-switch, or similar investigation.
14. Seller acknowledges responsibility for completion and execution of the required odometer mileage statement pertaining to any Vehicle on the invoice for such Vehicle and/or on the certificate of title for such Vehicle.
15. Upon payment to Seller, AGA shall be subrogated to all of Seller‘s and Buyer‘s respective rights, and Seller and Buyer agree to promptly take any action or sign any document deemed necessary, in AGA sole discretion upon AGA request, to secure such rights and do nothing to prejudice them.
16. Limited Title Guarantee: Upon full payment by Buyer and upon delivery of the certificate of title of Vehicle to Buyer, DAG will guarantee title to be free and clear of liens and encumbrances as of such delivery as, and only as, follows:
17. This limited guarantee shall last for a period of four (4) years from the date of sale and applies only to stolen Vehicles and mortgage liens. The amount of AGA liability under this limited guarantee of title shall never exceed the seller sale price of the Vehicle and shall be reduced by deducting from said sale price two percent (2%) on the first of each month following the date of sale, with all liability of AGA expiring and terminating on the first day of the 48th month after that date.
18. AGA limited guarantee of title is expressly limited to Buyer of the applicable Vehicle and is not negotiable or transferable. The limited guarantee shall be void if the purchase price for the Vehicle is not paid by Buyer, and it does not protect against defects in the title known to Buyer whether or not listed as exceptions on the face of the invoice for such Vehicle.
19. Whenever any claim is made by any person against the title of any Vehicle, whether by suit or otherwise, Buyer must, within five (5) days after becoming aware of said claim, notify AGA, giving full particulars of the claim, and shall cooperate fully in defending any legal action and in taking any other steps to minimize possible loss. Failure to satisfy these conditions shall void AGA liability under this limited guarantee.
20. Buyer shall not surrender possession of any Vehicle, except as required by legal process, to any such claimant, nor shall it voluntarily pay or acknowledge the validity of any such claim, in each case without the prior written approval of DAG.
21. On payment of any claim under this limited guarantee, Buyer will return the applicable Vehicle to DAG, if and as requested, and execute all necessary documentation subrogating its right to recover against Seller, or others, to AGA.
l. Disclaimers and Indemnification
a. You agree that AGA is neither responsible for odometer mileage on any Vehicle nor for the information contained in the odometer mileage statement which Seller, as Transferor, is required to complete and deliver, and Buyer, as Transferee, is required to acknowledge.
b. You agree that all representations or disclosures concerning any Vehicle are solely the responsibility of Seller, whether made on the internet, website any form of advertising before the sale, or otherwise, and you acknowledge and agree that AGA has made no representations or disclosures whatsoever about any Vehicle.
c. AGA is merely performing a broker service and expressly disclaims all express and/or implied warranties as to merchantability, fitness, or any other matter whatsoever, other than the limited title guarantee set forth above.
d. You agree, jointly and severally with any Buyer or Seller (as the case may be), to indemnify and hold AGA harmless from and against any and all liability, loss, cost, damage, or expense, including attorneys‘ fees, which are in any way related to or may otherwise arise, either directly or indirectly, from any Vehicle, including, but not limited to, the purchase or sale of any Vehicle, any matters relating to odometer mileage or odometer mileage statements, any damage or condition disclosures or lack thereof, and/or any damage caused by transporters or other agents of either Buyer or Seller.
e. If AGA is required to make or defend a claim, related in any way to a Vehicle or Vehicle transaction, from or against either Seller or Buyer or an agent, employee, insurer, or bonding company of either, then AGA shall recover, in addition to the amount of the claim and the costs incurred in the claim, reasonable attorneys' fees in an amount not less than twenty-five percent (25%) of the amount of the claim, regardless of whether suit is filed, including appellate and bankruptcy fees and costs. Interest shall accrue on the unpaid balance of any such claim at the rate of one and one-half percent (1.5%) per month, or the highest rate permitted by law, whichever is greater.
f. AGA RESERVES THE RIGHT TO VOID, UNWIND, OR CANCEL ANY TRANSACTION IN ITS SOLE DISCRETION.
7. Vehicle Arbitration Rules: You agree and acknowledge that:
a. you have received and read a copy of our prevailing AGA Arbitration Policy, including any AGA addendums, and the AGA $3,000 & Under Arbitration Policy, each of which are available at email@example.com (collectively, the AGA Arbitration Policies");
b. you understand and are bound by the AGA Arbitration Policies, which may be amended unilaterally by us from time to time, when participating in any transactions at AGA; and
c. any dispute arising from the purchase or sale of a vehicle through AGA will be resolved in accordance with the AGA Arbitration Policies, which are incorporated herein by reference and as may be amended from time to time by posting on AGA website, and our decision as arbitrator shall be final and binding upon you with respect to any transaction.
8. Payments: Payments for goods or services must be made by the registered customer purchasing those goods or services Although we retain the discretion to make appropriate exceptions, other third-party payments generally will not be accepted. Payments must be made in good funds and in a form acceptable to AGA. AGA reserves the right, in its sole discretion, to change the forms and types of payment that are accepted by AGA. In addition to any other rights AGA may have, you agree to pay a late fee of one percent (1%) on any unpaid obligations to AGA, subject to a $5 minimum and $100 maximum. AGA may waive the fee in its sole discretion.
9. ACH Authorization: You agree that, if you designate a bank account for payment of amounts you owe AGA an affliates, including, but not limited to bank account, we may use such account information to initiate an ACH debit to your bank account for such amounts owed. Additionally, you agree that, if any ACH debit we initiate to your bank account is returned unpaid, we may debit your account for a returned item fee in the maximum amount permitted under applicable state law. You agree that any authorizations we initiate to your bank account must comply with applicable law and NACHA Operating Rules. This authorization is in addition to, and does not terminate, any other authorization for electronic or ACH payments that we have on file or that you provide us in the future.
You agree any form of payment made by you, representative or agent threw Wire Transfers, Bank Deposits, Cashier’s Check into AGA company accounts will be considered as a bidden contract for the purchase of said vehicle.
10. Electronic Signatures: You acknowledge and agree that you and we may, from time to time, find it expedient to utilize electronic signature(s), acknowledgement(s), consent(s), "click-through(s)," or other approval(s), direct or indirect, for access to affliates, bills of sale, receipts, titles, and other documents or disclosures necessary or incidental to the transaction of business at AGA, whether online, in emails, or otherwise, which makes your business with us easier, faster, and more efficient. To that end, you agree that any such forms of approval from you shall be effective and binding upon you, in the same manner as a handwritten signature, where circumstances indicate your intent to be bound and/or we choose to rely on such approval(s). Regardless of whether your consent or approval was given, or in what form, you agree that you will be deemed to have ratified any transaction that you do not dispute in writing within 24 hours of confirmation by AGA.
11. Transportation of Vehicles: We may, from time to time in our discretion, transport or arrange via third parties to transport vehicles belonging to you at your request and/or as deemed necessary or desirable by us. In such cases, we are not liable for theft, conversion, loss, injuries, damage, claims, expenses (including legal fees), suits, or demands related to such vehicles (collectively, "Transportation Claims"), howsoever caused and to whomever caused. Such vehicles are being transported for you and at your request, and you assume all risks associated with the transportation of your vehicles. You further acknowledge and agree that your only claim or remedy for Transportation Claims, if any, shall be to and against the third-party carrier, its insurer, your own insurer, or the third-party that caused the alleged damage, and not to, against, or involving us.
12. Off-Site Sales: For any vehicles physically located away from a AGA facility, the seller shall have three (3) business days, inclusive of the sale date, to make the vehicle available to the buyer. The risk of loss or damage to the vehicle shall shift from the seller to the buyer upon the earlier of (i) actual pick-up by the buyer or its agent; or (ii) two (2) business days after seller truthfully notifies the buyer the vehicle is available for pick-up at the location stated in the sale listing.
13. Storage of Vehicles: Unless expressly agreed to the contrary in a writing signed by us, we are not a bailee of your property, consigned or otherwise. If you leave your vehicles or other property unattended on our premises, regardless of the reason, you are solely responsible for any and all damage, theft, or loss relating to such property, including any damage caused by weather conditions, regardless of our knowledge or involvement, and we may charge you storage fees as provided above in Section 6.
14. Safety and Assumption of Risk: Like all affiliated facilities, our various facilities are busy places with many vehicles, customers, and personnel moving around the premises at all times, particularly during sales events. You understand and acknowledge that the movement of vehicles, equipment, and individuals at facilities constitutes an open and obvious condition and that AGA is not obligated to warn you of such conditions.
15. Bound by Representatives: You are responsible for and bound by the actions of, and transactions entered into by, your actual and appointed representatives, including (i) all persons who, from time to time, submit a completed Individual Authorization Letter to AGA or to signed by or for you; and (ii) any other person authorized by you in writing, verbally, or otherwise to represent you at or with AGA.
16. No Right to Do Business: You have no obligation to do business with us. Likewise, you agree and acknowledge that we have no obligation to do business with you. We are affiliated private businesses; we reserve the right to cease doing business with you or anyone else, at any time, for any reason or no reason, in our sole discretion, collectively or separately among our affiliates; and you shall have no right, remedy, or cause of action for same. You acknowledge and agree that there are numerous sources, other than AGA, for you to do business with.
18. AGA Proprietary Rights: You agree and acknowledge that AGA products and services, and any software used in connection with AGA products and services, and the materials on the various AGA websites, contain proprietary and confidential information that is protected by intellectual property and other laws. Further, you agree and acknowledge that in the performance of its services, AGA may generate materials, including, but not limited to, photographs, reports, visuals, narratives, transactional records, and other data and documents derived from the foregoing, and that AGA shall own the rights to such materials. Except as explicitly provided in these terms and conditions, you may not take, appropriate, convert, distribute, transmit, display, reproduce, modify, create derivative works from, or otherwise exploit any of the AGA generated materials
20. Limited Power of Attorney: For value received, you hereby irrevocably appoint AGA to be your agent and attorney-in-fact with full and complete authority to, on your behalf, take all steps, do all things, and authenticate, sign, e-sign, or otherwise acknowledge any and all documents, including but not limited to odometer disclosure statements, title documents (including applications for duplicates), sales invoices and transportation instructions/orders, in each case as deemed necessary, incidental, desirable, or expedient by us, in our sole judgment, to any goods and/or services provided by us to you and/or to assist us with our efforts to collect payment for such goods and/or services.
21. DISCLAIMER OF WARRANTIES: UNLESS OTHERWISE SPECIFICALLY SET FORTH HEREIN OR IN A MORE SPECIFIC AGREEMENT YOU MAY HAVE OR MAKE WITH AGA, ALL PRODUCTS AND SERVICES PROVIDED TO YOU BY AGA ARE ON AN "AS-IS" BASIS. AGA CANNOT AND DOES NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY PRODUCTS OR SERVICES PROVIDED TO YOU BY AGA, AND CANNOT GUARANTEE THAT ANY SERVICES PROVIDED TO YOU WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT SUCH SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
22. INDEMNIFICATION: YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS AGA, ITS SUCCESSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, REPRESENTATIVES, BORROWED SERVANTS, VOLUNTEERS, INDEPENDENT CONTRACTORS AND AGENTS (EACH, A "AGA PARTY" AND COLLECTIVELY, THE "AGA PARTIES"), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DEMANDS, CAUSES OF ACTION, DEBTS, OR LIABILITIES, INCLUDING ATTORNEYS‘ FEES, ARISING OUT OF OR RELATING TO:
a. ANY PERSONAL INJURY OR PROPERTY DAMAGE THAT YOU MAY CAUSE, EITHER SOLELY BY YOUR OWN ACTIONS OR JOINTLY WITH OTHERS (INCLUDING THE AGA PARTIES), TO AGA, ANY PERSONNEL OR CUSTOMERS OF AGA, OR ANY THIRD PARTIES, OR THE PROPERTY OF ANY OF THE FOREGOING;
b. THE BREACH OR ALLEGED BREACH OF ANY AGREEMENT OR OBLIGATION HEREUNDER OR UNDER ANY OTHER AGREEMENT THAT YOU MAY HAVE WITH AGA;
c. ANY TRANSPORTATION CLAIMS;
d. ANY ACTIONS THAT A DAG PARTY MAY TAKE AS YOUR AGENT, REPRESENTATIVE, OR ATTORNEY-IN-FACT, PURSUANT TO SECTION 20 HEREOF OR OTHERWISE;
e. YOUR USE OF ANY PRODUCTS OR SERVICES OF AGA; AND
f. ANY LIABILITY OR OBLIGATION, INCLUDING ANY CAUSED IN PART BY A AGA PARTY, THAT MAY OTHERWISE ARISE FROM YOUR PARTICIPATION IN ANY SALE CONDUCTED BY A AGA PARTY, YOUR NEGOCIATION WITH ANY AGENT AT ANY PREMISES OWNED OR OPERATED BY AGA, OR THE PROVISION OF PRODUCTS OR SERVICES TO YOU BY AGA.
23. WAIVER AND RELEASE OF LIABILITY: YOU HEREBY WAIVE ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE, EITHER NOW OR IN THE FUTURE, AGAINST ANY AGA PARTY, AND HEREBY RELEASE THE AGA PARTIES FROM ANY AND ALL LIABILITY UNDER SUCH CLAIM OR CAUSE OF ACTION, IN EACH CASE TO THE EXTENT SUCH CLAIM OR CAUSE OF ACTION ARISES FROM OR RELATES TO:
a. YOUR ENTITLEMENT TO THE PROTECTION OF ANY CONSUMER PROTECTION STATUTE;
b. ANY BIDDING OR DISCLOSURE ISSUES THAT MAY OCCUR AT A SALE CONDUCTED BY US, SUBJECT TO YOUR LIMITED RIGHTS UNDER THE DAG ARBITRATION POLICIES;
c. ANY TRANSPORTATION CLAIM;
d. ANY DAMAGE TO YOUR VEHICLES OR OTHER PROPERTY LEFT OR STORED ON ANY PREMISES OWNED OR OPERATED BY AGA AFFILATES, REGARDLESS OF COMPENSATION PAID TO US FOR SUCH STORAGE;
e. ANY PERSONAL INJURY OR OTHER PROPERTY DAMAGE SUFFERED WHILE ON OR AROUND ANY PREMISES OWNED OR OPERATED BY AGA; AND
f. ANY ACTIONS TAKEN BY A AGA PARTY AS YOUR AGENT, REPRESENTATIVE, OR ATTORNEY-IN-FACT, PURSUANT TO SECTION 20 HEREOF OR AS MAY OTHERWISE BE AUTHORIZED.
24. LIMITATIONS OF LIABILITY: UNDER NO CIRCUMSTANCES WILL THE AGA PARTIES BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUES OR PROFITS, OR DAMAGES FOR LOSS OF BUSINESS), EVEN IF ONE OR MORE OF THE AGA PARTIES ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE AGA PARTIES, COLLECTIVELY, TO YOU IN CONNECTION WITH ANY CLAIMS OR CAUSES OF ACTION THAT YOU MAY ASSERT, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY YOU TO AGA FOR THE PRODUCT(S) OR SERVICE(S) AT ISSUE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE LAST EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION BEING ASSERTED. BECAUSE SOME STATES/JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
25. Choice of Law and Consent to Jurisdiction: These terms and conditions shall be governed by the internal laws of the State of Alabama (U.S.A.), where AGA maintains its headquarters, and without regard to Louisiana internal conflicts of law analysis. In the event that any claim or dispute between AGA and you is not arbitrated under Section 26 hereof, you agree that non-exclusive jurisdiction and venue for such claims and disputes shall exist in the federal and state courts located in Chatom, Alabama. You further agree and acknowledge that you may not sue AGA in any jurisdiction or venue except Chatom, Alabama.
26. ARBITRATION AND CLASS ACTION WAIVER
a. ARBITRATION AGREEMENT: YOU AGREE TO ARBITRATE ANY DISPUTE OR CLAIM THAT YOU MAY HAVE WITH AGA THAT ARISES OUT OF OR RELATES IN ANY WAY TO THESE TERMS AND CONDITIONS; ANY PURCHASE, SALE, OR CREDIT TRANSACTION WITH AGA; YOUR USE OF ANY DAG WEBSITE, ONLINE PORTAL OR ANY AGA PRODUCT OR SERVICE; OR ANY OTHER AGREEMENT BETWEEN YOU AND AGA. ARBITRATION CONDUCTED HEREUNDER SHALL BE FINAL AND BINDING. THIS ARBITRATION PROVISION MEANS THAT YOUR CLAIMS AGAINST AGA WILL BE RESOLVED THROUGH ARBITRATION RATHER THAN LITIGATION IN COURT. YOU ACKNOWLEDGE THAT AGA MAY (BUT SHALL NOT BE REQUIRED TO) SUBMIT TO ARBITRATION ANY DISPUTE OR CLAIM THAT IT MAY HAVE AGAINST YOU, WITH ANY SUCH ARBITRATION BEING GOVERNED BY THE PROVISIONS OF THIS SECTION 26.
b. ABILITY TO OPT OUT: YOU MAY OPT OUT OF THIS ARBITRATION AGREEMENT (SECTION 26 ONLY) FOR ANY FUTURE BUSINESS WITH AGA AND DOING SO WILL NOT IN ANY WAY PREJUDICE OR AFFECT YOUR DEALINGS WITH AGA. TO EXERCISE THIS OPT OUT RIGHT, YOU MUST PROVIDE WRITTEN NOTICE OF YOUR ELECTION TO OPT OUT TO AGA AT AUTO GROUP OF ALABAMA LLC. 9511 CHEF MENTEAUR HWY. STE.109 NEW ORLEANS, LA. 70127
NO LATER THAN 30 DAYS AFTER YOUR INITIAL ACCEPTANCE OF THESE TERMS AND CONDITIONS AS SET FORTH IN THE FIRST PARAGRAPH HEREOF. THE PROCEDURE SPELLED OUT HEREIN IS THE ONLY WAY TO OPT OUT OF THIS ARBITRATION AGREEMENT, AND ANY ATTEMPTS TO OPT OUT AFTER THE DEADLINE SET FORTH HEREIN WILL BE INEFFECTIVE.
c. CLASS ACTION WAIVER: ANY ARBITRATION PROCEEDING UNDER THIS SECTION 26 WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS OR REPRESENTATIVE PROCEEDINGS OF ANY KIND ARE NOT PERMITTED AND YOU EXPRESSLY WAIVE YOUR ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE PROCEEDING AGAINST AGA. TO THE EXTENT THAT YOU OPT OUT OF ARBITRATION FOLLOWING THE PROCEDURE SET FORTH IN SECTION 26(b) ABOVE, OR IF THIS ARBITRATION AGREEMENT IS FOUND INAPPLICABLE TO YOUR DISPUTE WITH AGA, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION. YOU AGREE THAT THIS CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF OUR AGREEMENT AND THESE TERMS AND CONDITIONS AND THAT IT MAY NOT BE SEVERED. IN THE EVENT THAT THIS CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, THEN THE ENTIRE AGREEMENT TO ARBITRATE IN THIS SECTION 26 WILL BE NULL AND VOID.
d. Arbitration Procedures/Arbitrator Authority: Any dispute or claim subject to arbitration pursuant to this Section 26 shall be submitted to binding arbitration administered by the Judicial Arbitration and Mediation Service ("JAMS") pursuant to its Streamlined Arbitration Rules and Procedures as in effect at the time of the submission of such dispute or claim (the "JAMS Streamlined Rules"). The disputes and claims subject to arbitration pursuant to this Section 26 will be resolved by a single arbitrator selected pursuant to the JAMS Streamlined Rules. The arbitrator shall be bound by and shall strictly enforce these terms and conditions and any other applicable agreement between you and AGA, and may not limit, expand, or otherwise modify any of these terms and conditions or the provisions of any other applicable agreement between you and AGA. The arbitrator may award any relief that a court of law could, applying the limitations of liability contained in these terms and conditions. The arbitrator may award injunctive relief if permitted by law – but the injunctive relief awarded by the arbitrator may not extend beyond our dealings with each other. The laws of the State of Alabama will apply to any claims or disputes between us. Any arbitration will be held in Montgomery, Alabama unless otherwise agreed upon by the parties in writing. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator shall award AGA any costs and fees to which AGA may be entitled under Section 21 in connection with any indemnification claim, and may also, in his or her discretion, award costs and fees to AGA if it is determined that you submitted or filed any arbitration in bad faith or that your claims against AGA have no reasonable legal basis.
e. Application of FAA/Survival: You agree that your transactions with AGA evidence transactions in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Section 26 (notwithstanding the application of Alabama law to any underlying claims as provided for in clause (d) above). You also agree that this Section 26 survives any termination of these terms and conditions or any other agreement between us.
27. Individual Guaranty: By entering our private facilities and/or using our services, you personally guarantee full payment and performance of all the obligations you participate in incurring to AGA, whether personally or as a representative of another entity, despite the fact that you may be participating in a representative capacity. The principal debtor is (i) any Vehicle Buyer or Seller for whom you (a) are the customer, buyer or representative owner (b) consent to a AGA or affiliate bill(s) of sale, and (ii) any customer for whom you order a product or service from us. Liability under this general guaranty is in addition to your liability and is joint and several with the dealership's liability. This is a general guaranty of payment and performance and not merely a guaranty of collection.
28. Communications: You hereby expressly authorize us to communicate with you via facsimile transmissions, email, telephonic transmissions, both to a residential telephone line and/or cell phone, including text messaging, using an automatic telephone dialing system or an artificial or prerecorded voice message, and/or any other forms of communication, for any purpose, including general business matters, account information, marketing materials, collection, and/or any other communication needs. Such express permission shall extend to any and all of the contact information that you have provided to us herein or otherwise, including physical and email addresses, phone numbers, fax numbers, etc., and to such other addresses, phone numbers, email addresses, online chat, social media platforms, etc. that you may provide to us, or that we may obtain from any third party at a later date. You are not required to consent to receive marketing calls and texts to your cell phone and/or residential line using an automatic telephone dialing system or an artificial or prerecorded voice message from us as a condition of your access to AGA, and you may opt out of receiving such communications by adjusting your account settings at firstname.lastname@example.org
29. No Commitment to Lend: Neither these terms and conditions nor any other request by you to us shall constitute a commitment by us to lend funds to you or to take any other action.
31. Understanding of Terms and Conditions: You acknowledge and agree that you understand these terms and conditions written in English and that you have sought the help of an attorney and/or translator as you deem necessary to understand it. The Parties hereto agree that this agreement, and all correspondence and all documentation relating to this agreement, be written in the English language. (Les parties aux présentes ont exigé que la présente entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en langue anglaise.) Any translated version of any of these terms and conditions offered by Manheim is provided as a courtesy only, with the English version being the binding version.
32. Severability: In the event that any provision in this agreement is determined to be legally unenforceable, the parties agree that the unenforceable provision shall be severed, and the remaining provisions of these terms and conditions shall remain in full force and effect.
33. Electronic Approval: You hereby acknowledge and agree that these terms and conditions are being executed both in your individual capacity or and an authorized representative for a vehicle purchase and that the approval of this document, if by e-signature, shall be deemed to satisfy all requirements imposed on electronic or digital signatures under the Electronic Signatures in Global and National Commerce Act (the "E-Sign Act"), 15 U.S.C. §7001(a) et seq., state electronic transactions acts, and any other similar laws relating to the validity or enforceability of electronic or digital signatures. You further acknowledge and agree that these terms and conditions may be approved by affixing to this agreement an electronic or digital signature, which shall for all purposes be deemed effective to constitute the valid signature of the party affixing such electronic or digital signature.
34. Vehicle Condition Grading Scale
I have review the NAAA-Recommended VEHICLE CONDITION GRADING SCALE and accept the grading of the vehicle I purchase.
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