Terms & Conditions
This Agreement, as modified or amended as set forth herein, will continue until terminated by either party.
Use of Services
To access and use the Site, the Applications and the Services, you must be at least 18 years of age. You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into this Agreement. You agree not to use the Services, the Applications or the Site for any unlawful or abusive purpose or in any way which interferes with our ability to provide the Services, the Applications and/or the Site to the Users, or damages our property. You agree that your use of the Services, the Applications and the Site is subject to all applicable local, state, national and international laws, rules and regulations.
You also agree not:
to host, submit content to or use the Site, the Applications or the Services without the consent of a parent, guardian or educational supervisor if you are under the age of 13 (a “Minor”);
to use any robot, spider, scraper or other automatic device, process or means to access the Site, the Applications or the Services for any purpose without Overnight Dealer’s express written permission;
to use the Site, the Applications or the Services for any commercial purposes that are expressly permitted by this Agreement;
to take any action that imposes or may impose (in Overnight Dealer’s sole discretion) an unreasonable or disproportionately large load on our infrastructure;
to upload or transmit viruses or other harmful, disruptive or destructive files;
to submit any property information that is false or misleading;
to disrupt, interfere with, or otherwise harm or violate the security of the Services, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Services;
to decipher, decompile, disassemble, reverse engineer, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Site, the Applications or the Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
to make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other Users of the Site, the Applications or the Services(including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures); and
to use the Site, the Applications or the Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment.
When using the Site, the Applications and the Services, you may be subject to additional posted policies, guidelines or rules applicable to the Site, the Applications and Services and features which may be posted from time to time (the “Policies”). All such Policies are hereby incorporated by reference into this Agreement.
Subject to your compliance with all the terms and conditions set out in this Agreement, Overnight Dealer hereby grants to you a limited, non-exclusive, non-transferable, freely revocable license during the term of your agreement with Overnight Dealer to access and use the Site and the Services as contemplated herein.
How the Services Work
Overnight Dealer is a lead response, qualification and reporting service for automobile dealerships. When a prospective buyer reaches out to a dealership on a website or third-party platform after business hours, Overnight Dealer responds to that prospect within 5 minutes. Leads flow through the Overnight Dealer system via email and the dealership is copied on all communication. Every morning, a designated member of the dealership receives an email report of all leads contacted and those who have responded. Today, we are focused on dealerships but in the future, we will work with other types of lead generation.
In order to obtain access to certain Services, you may need to register by creating an account with Overnight Dealer. If you choose to create an account, you agree to provide only accurate, complete registration information, and you will keep that information up-to-date if it changes. Although it is Overnight Dealer’s intention for the Services to be available as much as possible, there will be occasions when the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. You may cancel or terminate your account and/or use of any Services, with or without cause at any time, by providing written notice to Overnight Dealer via email at email@example.com. Overnight Dealer reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Site, the Applications or any of the Services. Overnight Dealer also reserves the right, in its sole and absolute discretion, at any time and with or without prior notice to you, to suspend, cancel, transfer, or terminate your account, and/or use of any Services for any reason whatsoever.
Prevention of Unauthorized Use
Overnight Dealer reserves the right to exercise, in its sole and absolute discretion, whatever lawful means it deems necessary to prevent unauthorized use of the Site, the Applications or the Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
Service Plans and Fees
Overnight Dealer offers various service plans with different features and subscription terms for the Services (the “Service Plans”). You may cancel or upgrade or downgrade the Services Plan. By selecting one of the Service Plans, you agree on behalf of yourself and your Organization to the terms and conditions associated with such Service Plan, including the applicable pricing and the subscription term of such Service Plan, which is one calendar month. All fees (the “Fees”) associated with the Service Plans shall be automatically charged to a credit card and paid in U.S. dollars. Overnight Dealer reserves the right to increase any such Fees at any time upon reasonable notice posted in advance in accordance with the Section “Modifications” below. Any such increase shall apply after the then current subscription term ends. When you sign-up for any Service Plan, you will provide a credit card number and agree that Overnight Dealer may bill your credit card for the Fees, renewals and any related taxes. In making payments, you acknowledge that you are not relying on future availability of any Service Plans beyond the current subscription term or any upgrades or feature enhancements. If you change your Service Plan, Overnight Dealer will charge for the difference between your current Service Plan and your new Service Plan. You agree to pay all Fees in accordance with the applicable terms and conditions. Payments or payment processing for the Fees may be handled by Overnight Dealer or unaffiliated third parties (e,g., companies that provide credit card processing services) (“Third Party Processors”). In addition, to the extent that any sales, use or other similar taxes are payable by Overnight Dealer or Third Party Processor in connection with the Service Plan selected by you, you agree to pay to Overnight Dealer or such Third Party Processor the amount of such taxes in addition to any other amounts owing for such Service Plan. The subscription term of all Service Plans will automatically renew for periods equal to the initial subscription term, which is no fewer than 1 calendar month. If the subscription is terminated, it will terminate at the end of the then-current month, but there will not be any credits or refunds for amounts accrued or paid prior to such termination unless required by law (e,g., there is no refund for annual plans paid in full for 12 calendar months). Overnight Dealer may change, modify, or eliminate any Service Plan at any time, with or without notice. You agree that Overnight Dealer will bear no liability to you or any third party if Overnight Dealer does so.
ALL FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS SPECIFICALLY PROVIDED OTHERWISE IN THE APPLICABLE TERMS AND CONDITIONS UNLESS REQUIRED BY LAW.
Overnight Dealer reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time by posting the amended terms to the Site, the Applications or the Services. If Overnight Dealer updates this Agreement, it will update the “last updated” date at the top of this Agreement. Please check this Agreement, including any Policies, periodically for changes. Your continued use of the Site, the Applications or the Services after the posting of changes constitutes your binding acceptance of such changes. In the event that a change to this Agreement materially modifies your rights or obligations (including applicable fees), Overnight Dealer will make reasonable efforts to notify you of such change. Overnight Dealer may provide notice by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed terms materially modify your rights or obligations, Overnight Dealer may require you to provide consent by accepting the changed terms. If Overnight Dealer requires your acceptance of the changed terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Overnight Dealer, such amended terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on the Site, the Applications or the Services. IF AT ANY TIME YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SITE, THE APPLICATIONS AND THE SERVICES.
To the extent that any modifications to this Agreement or Policies are not allowed under applicable laws, the prior most recent version of this Agreement or Policies shall continue to apply.
Third Party Sites
The Site, the Applications and the Services may include links or references to other web sites or services (“Third Party Sites”) solely as a convenience to Users. Overnight Dealer does not endorse any such Third Party Sites or the information, materials, products, or services contained on or accessible through Third Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site, the Applications or the Services are solely between you and such advertiser. Access and use of Third Party Sites, including the information, materials, products, and services on or available through Third Party Sites are solely at your own risk.
THE MATERIALS AND CONTENT CONTAINED IN THE SITE, THE APPLICATIONS AND THE SERVICES ARE PROVIDED “AS IS.” OVERNIGHT DEALER, THROUGH AND TOGETHER WITH ITS DIRECTORS, MANAGERS, OFFICERS, STOCKHOLDERS, MEMBERS, AGENTS, REPRESENTATIVES, EMPLOYEES AND AFFILIATED ENTITIES (COLLECTIVELY, THE “COMPANY AFFILIATES” AND EACH, A “COMPANY AFFILIATE”) MAKE NO WARRANTIES REGARDING THE MATERIALS, CONTENT OR SERVICES WHATSOEVER AND DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE. THE COMPANY AFFILIATES DO NOT WARRANT THAT THE DATA, ASSESSMENTS, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SITE, THE APPLICATIONS, THE SERVICES, OR ANY THIRD PARTY SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. THE COMPANY AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, THE APPLICATIONS, THE SERVICES OR ANY THIRD PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
DISCLAIMER AND LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT OVERNIGHT DEALER IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN SELLERS AND BUYERS OF AUTOMOBILES. OVERNIGHT DEALERS HAS NO CONTROL OVER THE CONDUCT OF ANY OF THE FOREGOING PERSONS OR OTHER USERS OF THE SERVICES OR THE CONDITION, LEGAILITY OR SUITABILITY OF ANY AUTOMOBILES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL ANY COMPANY AFFILIATE BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION REGARDLESS OF WHETHER ANY COMPANY AFFILIATE HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH DAMAGES) ARISING OUT OF OR RELATING TO THE PROVISION OF SERVICES BY OVERNIGHT DEALER. IN NO EVENT WILL OVERNIGHT DEALERS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE, THE APPLICATIONS OR THE SERVICES OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU (OR ON YOUR BEHALF), IF ANY, TO OVERNIGHT DEALERS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR TEN DOLLARS, WHICHEVER IS GREATER. YOU AND OVERNIGHT DEALER AGREE THAT THIS SECTION, “DISCLAIMER AND LIMITATION OF LIABILITY”, IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND OVERNIGHT DEALER. YOU ACKNOWLEDGE YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, OVERNIGHT DEALER WOULD NOT PROVIDE THE SITE, THE APPLICATIONS OR SERVICES TO YOU. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE COMPANY AFFILIATES, FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS’ FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, THE APPLICATIONS OR THE SITE, OR (B) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE (TO THE EXTENT PERMISSABLE) ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING INDEMNIFICATION OBLIGATIONS.
NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF ANY THE COMPANY AFFILIATES.
Release for Disputes between Users
If you have a dispute with any other Users or other third parties, you release Overnight Dealer and the other Company Parties 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. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Ownership of the Site and its Content
The Site, the Applications and all information, materials and content available on the Site or the Applications, including without limitation any trademarks, logos, service marks, trade dress, text, and graphics (collectively, “Overnight Dealer Content”), is the property of Overnight Dealer and/or certain third-parties. Nothing contained on the Site or the Applications should be construed as granting, by implication or otherwise, any license or right to use any of theOvernight Dealer Content without the written permission of the party that owns the Overnight Dealer Content, whether it be Overnight Dealer or a third party.
Further, Overnight Dealer reserves the right to share client results / accomplishments and associated client name without disclosing contact information for any clients, or their contacts.
Links to Other Sites and Materials
The sites or services linked to the Site or the Applications (the “Third Party Sites”), if any, are not necessarily under the control of Overnight Dealer and Overnight Dealer is not responsible for the content of any SUCH Third Party Site. Any links included in the Site have been selected by Overnight Dealer for your convenience. The selection or omission of links is not intended to endorse any particular companies or products. If you decide to access any of the third party sites linked to the Site or the Applications, you do so entirely at your own risk.
If a dispute arises between you and Overnight Dealer, the goal is to provide you with a neutral and cost effective methods of resolving the dispute quickly. Accordingly, you and Overnight Dealer agree that any dispute, claim or controversy at law or equity that arises out of this Agreement, the Site, the Applications or the Services (a “Claim”) will be resolved in accordance with this Section “Dispute Resolution” or as Overnight Dealer and you otherwise agree in writing. Before resorting to these dispute methods, Overnight Dealer strongly encourages you to first contact Overnight Dealer directly to seek a resolution.
Choice of Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire, excluding that body of law applicable to conflicts of law. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CLAIM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE APPLICATIONS OR THE SERVICES.
ARBITRATION AND CLASS ACTION WAIVER.
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS. Arbitration. YOU AGREE THAT ALL CLAIMS BETWEEN YOU AND SMART ALTO (WHETHER OR NOT SUCH CLAIM INVOLVES A THIRD PARTY) IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE APPLICATIONS OR THE SERVICES, INCLUDING WITHOUT LIMITATION, YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND SMART ALTO HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND SMART ALTO WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. You may bring claims only on your own behalf.
Neither you nor Overnight Dealer will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST SMART ALTO INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Overnight Dealer is a party to the proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Overnight Dealer or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
Judicial Forum for Disputes. In the event that the agreement to arbitrate under this Section is found not to apply to you or your claim, you and Overnight Dealer agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts of Rockingham County, New Hampshire. Both you and Overnight Dealer irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Overnight Dealer may bring a claim for equitable relief in any court with proper jurisdiction.
This arbitration agreement will survive the termination of your use of the Site, the Applications or the Services or your relationship with Overnight Dealer.
Improperly Filed Claims
All claims you bring against Overnight Dealer must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be considered improperly filed. Should you file a claim contrary to this section, Overnight Dealer may recover attorneys’ fees and costs up to $15,000, provided that Overnight Dealer has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
Limitation on Time to File Claims
Overnight Dealer may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings on the Site, the Applications or the Services. Notice will be deemed given twenty-four hours after email is sent, unless Overnight Dealer is notified that the email address is invalid. Alternatively, Overnight Dealer may give you legal notice by mail to a postal address, if provided by you through the Site, the Applications or the Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Site, the Applications or the Services is deemed given 30 days following the initial posting.
Overnight Dealer reserves the right to share client results / accomplishments (e.g. leads qualified, appointments set) and associated client name without disclosing contact information for any clients, or their contacts.
All of the terms of this Agreement, including “Disclaimer and Limitation of Liability”, “Indemnity” and “Dispute Resolution” shall survive the termination of this Agreement or your use of the Site, the Applications or the Services.
Do Not Sell My Personal Information
Overnight Dealer does not sell personal information for monetary consideration; however, we may share information with third parties under circumstances which might be deemed a “sale” under the California Consumer Privacy Act.
You may access specific information, correct your information, obtain copies of your information, request we delete your information and request that we do not sell your information.
Please describe your request with sufficient detail to allow us to properly understand, evaluate, and respond to your request.
To exercise your rights, please Click the Do Not Sell My Personal Information button below:
Please note that if you want to see what data we may have on behalf of one of our customers, such requests need to be sent directly to our customer.