HomeMy WebLinkAbout07-2406COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DEALERTRACK, INC.
No. 07 - a
6,
Plaintiff
vs.
CARLISLE CHRYSLER JEEP, LLC
Defendant
: CIVIL ACTION
NOTICE
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS
SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20)
DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT
YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE
WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A
JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE
FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF
REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS
IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE
A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES
TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
AMATO AND AS OCIA S, P.C.
By:
onald Amato, Esq., Atty ID #32323
Michael J. Kennedy, Esq., Atty ID #72412
Attorneys for Plaintiff
107 North Commerce Way
Bethlehem, PA 18017
(610) 866-0400
A DEBT COLLECTION LAW FIRM
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DEALERTRACK, INC.
Plaintiff No.
VS.
CARLISLE CHRYSLER JEEP, LLC
CIVIL ACTION
Defendant(s)
COMPLAINT
The above Plaintiff brings this action against the above Defendant to recover the sum
of $34,341.93, with interest thereon as hereinafter stated, upon the following cause of action:
1. The Plaintiff, DEALERTRACK, INC. is located at 1111 Marcus Avenue
Suite, Lake Success NY 11042-1034.
2. The Defendant, CARLISLE CHRYSLER JEEP, LLC is located at 1119
Harrisburg Pike, CARLISLE PA 17013-1618.
3. At the special instance and request of the Defendant, Plaintiff entered into a
written Software License Agreement, a true and correct copy of the contract is attached hereto,
made a part hereof and marked Exhibit "A".
4. Defendant has not adhered to the agreed repayment obligations that govern the
aforesaid contract, by reason of which Defendant is in default thereof.
5. The total amount which became due as a result thereof, after allowance for all
proper credits for payments and/or adjustments, if any, was $25,440.09. A true and correct
copy of a Statement of Defendant's Account is attached hereto, made a part hereof and marked
Exhibit "B".
6. Plaintiff is entitled to receive interest on the above amount determined by
applying the agreed interest rate of 18.00% per annum to the past due balance. As of April 17,
2007 the total amount of interest due to plaintiff is $4,014.66.
7. Plaintiff is entitled to have the 18.00 % interest charge continue to accrue as set
forth above, from April 17, 2007 on down to the date of judgment in this matter.
8. In accordance with the aforesaid agreement, Defendant further agreed to pay
Plaintiff's reasonable attorneys' fees incurred in the collection of any balance due Plaintiff, which
total $4,887.18.
9. The Plaintiff has made demand against the Defendant for the aforesaid sum, but
Defendant failed or refused to pay the same or any part thereof.
WHEREFORE, Plaintiff demands judgment against the Defendant for $34,341.93
together with the continually accruing interest charge at the agreed rate of 18.00% per annum
from April 17, 2007, and cost of suit.
COUNT II
Alternative to Count I - Unjust Enrichment
10. Plaintiff incorporates the allegations of every paragraph enumerated above of
this Complaint as if said paragraphs were fully set forth here at length.
11. The goods, wares, merchandise, and/or services, described in the exhibits
attached hereto were purchased by Defendant, and Defendant received and accepted the benefit
of such goods, wares, merchandise, and/or services provided by Plaintiff.
12. At all times material hereto, Defendant was aware that Plaintiff was providing
the aforesaid goods, wares, merchandise, and/or services to Defendant, and that Plaintiff
expected to be paid for such.
13. At all times material hereto, Defendant, with the aforesaid knowledge,
permitted Plaintiff to provide and/or deliver said goods, wares, merchandise, and/or services,
and to incur damages.
14. At all times material hereto, Defendant was unjustly enriched by retaining the
benefit of receiving said goods, wares, merchandise, and/or services without paying Plaintiff
fair and reasonable compensation.
15. By reason of the aforesaid unjust enrichment of Defendant at Plaintiff's
expense, an implied contract exists between Plaintiff and Defendant, and Defendant is
obligated to pay Plaintiff the ug antum meruit value of the value of the goods, wares,
merchandise, and/or services described in the exhibits attached hereto, in the amount of
$25,440.09.
WHEREFORE, Plaintiff demands judgment against Defendant for $25,440.09
together with the continually accruing interest charge at the statutory rate of 6.00% per annum
from April 17, 2007, costs of suit and all other relief to which Plaintiff may be justly entitled.
AMATO AND ASSOCIATES, P.C.
By:
onald Amato, Esq., Atty ID #32323
Michael J. Kennedy, Esq., Atty ID #72412
Attorneys for Plaintiff
107 North Commerce Way
Bethlehem, PA 18017
(610) 866-0400
A DEBT COLLECTION LAW FIRM
EXHIBIT "A"
LeaseLinkO
web rn»epuiry
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this -Lice= Agreement") is made by and between webalg, inc., an affiliate of DealcrTrack, Inc. CVebalg"), and Catiisle
Chrysler Jeep Lic ("Customea" ), effective as of June 6, 2005 (the "Effective Date"), and concerns the use by Customer of the LeaseLink® software application
("L easeLmk"), FinanceWizard software application C`FinanoeWizard') and/or corresponding services as set forth herein.
1. Descriptions and Primary Functions of LeaseLink and FloanceWiZard.
Le=Lmk is an automotive finance deskmg tool, comprised of several modules,
including, without limitation, "lease-nevi', "lease-used" (each including vehicle
financing transactions using balloon payments) and "retail". FinanceWizard is an
automotive comm finance tool, comprised of one module.
2. Licenses.
(a) Customer License. For the fees set forth in any addenda or attachment
hereto (each, an "Addendum" and collectively, the "Addenda'), including,
without limitation, the license order forms (the "Order Form') and if applicable,
the Equipment Sale Agreement ("Addendum A'), for (t) the number of licenses
for any Licensed Program (defined below) set forth in the Order Form and (n) if
applicable, the purchase price of any computer equipment (the "Equipment" ), to
be located at the installation site set forth in Addendum A (the "Iffigllation
Site'), and in consideration of the payment of such sums, Webalg grants
Customer a personal, nontransferable, nonexclusive, revocable license to use and
execute such Licensed Program in machme4mloble,.object code form only for
Customer's own benefit on the Equipment at - the Installation Site or, if no
Equipment is purchased under any Addenda hereunder from Webalg, certain
specified computer desktops or servers, as applicable, of Customer located at the
installation Site, in each case subject to and upon the terms Tstated herein (Ingether
he term censer
with any Equipment, the "Authorized Equipment').
Program" as used herein is defined as and consists of (1) the modules of the
licensed information ' processing program or programs commonly known as
LeaseLmk and/or FinanceWizard, as specified on the Order Form; (2) all
materials related thereto provided by Webalg for use in connection with such
Licensed Program, (3) modifications and derivations made by Webalg to such
licensed Program and provided to Customer as so determined by Webalg in its
Bole discretion; and (4) Webalg's logo and product names. No right, title, license
or interest to the trademarks of Webalg or its affiliates is granted hereunder.
(b) Webalg License. Customer shall provide Webalg, within twenty four (24)
hours of receipt of Webalg's request thmat any and all infommtion requested
by Webalg for purposes of testing, evaluating, updating and analyzing any
Licensed program, including, without limitation, all related financing source and
automobile momifitctura financing entry id'ametion, rate sheets, residual gules
and any rebates or special arrangements provided by any financing source or
automotive manufacturers. Coma represents and warrants that it has obtained
all necessary licenses, releases and consents to grant the rights set forth herein
customer also grants Webalg and its affrliefts a worldwide, nonexclusive,
royalty-nee license to use, reproduce, distribute, transmit; disclose, display,
modify and create derivative works of the content, data, information and other
materials Customer submits into any Licensed Program or, if applicable, other
cor?bnents of the System (the "customer Data") and to authorize others to
eucerciw the foregoing rights. "System", as used herein and in any Addenda,
shall mean any Licensed Program together with any Equipment provided by
Webalg to the Customer.
3. Payment.
(a) Payment Amounts. Customer shall pay the fees specified in the Order Form
as well as any additional fees set forth in any Addenda, as such fees may be
adjusted during the Term as provided herein and therein.
(b) Payment Timing. Unless otherwise specified in an Addendum, Customer
shall pay the amounts payable to Webalg hereunder monthly in advance. All
amounts payable by Customer shall be paid in immediately available funds in
united states dollars, shall be non-rdkodable and shall not be subject to any set-
off claim. Payment may be by check or ACH, as indicated on the Order Form. If
Customer fails to pay any amount due by the applicable due date (i) late charges
of the lesser of 1 'h% per mtm* or the maximum allowable under applicable law
shall also become due and payable and (ii) all subsequent payments shall be
remitted by Customer via ACIL In such a case, Customer shall be obligated to
demonstrate written evidence that the direct debt transfer of fiords is in place.
Customer's failure to maintain the direct debit transfer of fiends in this instance
shall constitute an event of default of this License Agreement.
(c) Taxes and Collection Agency Fees. Except for franchise taxes and taxes
based upon the net income and persmal property of Webalg, all taxes or other
assessments imposed by governmental authorities based upon this License
Agreement (ioduding without limitation, sales and use taxes) are the obligation
of Customer, whether such taxes are now or hereafter imposed. Customer shall
reimburse Webalg for the amount of any such taxes or duties paid or accrued
directly by Webalg as a result of any transaction related to this License
Agreement, Customer shall be liable for all collection agency fees and
reasonable Womeys' fees payable by Webalg in connection with enforcing
Customer's performance of its payment obligations set forth in this License
Agreement, including, without limitation, any Addenda.
4. Term and Termination.
(a) Term. The initial term of this License Agreement and Customer's right to
use each Licensed Program as set forth herein shall commence on the Effective
Date and shall continue for the period specified in the Order Form (the "Initial
Term'). Upon expiration of the Initial Term, the term of this License Agreement
shall automatically renew on a mocth4o-month basis unless either party gives the
other party thirty (30) days written notice prior to the end of the then-current term
(the Initial Term, and any extension thereat the "Term'); provided, however, that
after the initial Term, Webalg reserves the right to change the fees in connection
with this License Agreement or add additional fees relating to any Licensed
program (collecavely, "New Fees'). In the event Webalg elects to charge New
Fees after the Initial Term, Webalg shall provide Coma forty five (45) days
notice via a Licensed Program or such other means permitted hereunder of any
New Fees, and Custar= shall have the right to terminate this License Agreement
by providing written notice to Webalg within thirty (30) days of receipt of the
notice of New Fees.
(b) Termination. Webalg may terminate this License Agreement (1) upon thirty
(30) days prier- written notice to Customer if () Customer or its users materially
breaches any warranty, representation or covenant set forth herein or in any
Addenda and far3s to cure such breach within such thirty (30) day period; or (ii) if
Webalg should cease to offer the Licensed Program in whole or in part; or (2)
immediately, if (i) Customer ceases to carry on its business; (ii) a receiver or
similar officer is appointed for Customer and is not discharged within thirty (30)
days; (iii) Customer becomes insolvent, is adjudicated bankrupt or makes an
assignment for the benefit of its creditors or other ariaagement of similar import;
or (iv) proceedings under the law of bankruptcy or insolvency are commenced
or against Customer and are not dismissed within thirty (30) days. Webalg monedu tely terminate this License Agreement with respect to any or all Licensed
Programs if Customer fails to pay any amount due hereunder within thirty (30)
days of the due date. Notwithstanding the above, Webalg may terminate its
offering or support of any module of the licensed Prograin upon sixty (60) days
notice to Customer in return for a reduction of the fees paid for such module in
the Order Form.
(c) Effect of Termination. Upon termination and all other materials AA
Customer shall return all Licensed Programs provided by
Webalg hereunder, and all copies thereof to Webalg. Sections 1, 2(b), 3(c), 4, 7,
8, 9, 10, 13, 14, 15, 16, 20, 21 and 22 shall survive the expiration or earlier
termination of this License Agreement.
5. Restrictions on Usage. Each license of any Licensed Program extends only
to customees own installation and use of such Licensed Program on one unit,
such as a workstation or terminal, of Authorized Equipment at the Installation
Site. Workstations, terminals, or other devices connected to or served by the
Authorized Equipment shall not be authorized to contain, process or otherwise
use, or provide for use of or access to, any Licensed Program without a separate
license hereunder. Notwithstanding the foregoing, Customer store, may install
sued and
access a Licensed Program through an internal network, provided it has _ Prograrn.
paid for a license for each workstation that will access will access a
through such network. For aample, if five (5) different
Licensed Program on the internal netwcdl , each worksrtion must have its own pod-
up license, regardless of whether the works ions use such Licensed Program at
different times or cooncnreotly. Customer may not move any Licensed Program to
another location, except with Webalg's prior written consent.
6. Moddcation& Updates and En6ancements• Version Uusrades-
(a) Definitions Related to the Licensed Program. For purposes of this License
Agreement:
"Database Infonuatioe means the database information in a Licensed Program.
"Update" means an update of Database Information, which new information may
be received fiom third-partY sources, including, without limitation, Customer.
"Modification" means a mince change or addition to a Licensed Program, other
than Enhancements.
"Enhmycement7 means a sigmficant change or addition to a Licensed Program
that adds significant new functions to or substantially improves performance of
such Licensed Program by changes in system design or coding or in the related
documentation.
"Module Transfer" means the transfer of functionality, in whole or in part,
currently contained in a Licensed Program into another Licensed Program or
another product or service offered by Webalg or a Webalg affiliate.
"Version Upgrade" means an Update, Modification, Enhancement or Module
Transfer to a Licensed Program that, in order to be operated by Customer, may
require Customer to improve, enhance or augment its computer software,
including its computer operating system, computer hardware, Authorized
Equipment or Internet. counearvi<y (Collectively, the -Operating: F.nvtio
sm order to operate such update, modification, Enhancement or Module Transfer.
It shall be at Webalg's sole discretion as to whether any change to a Licensed
Program or Database ba mation pursum to this Section 6 shall be categorized
as an Update, Mollification, FnhapcemcK Module Transfer, or Version Upgrade.
Customer shall not modify or alter any Licensed Program or any Equipment,
except as permitted under this Section 6.
(a) Modifications and Updates. Webalg may, at its sole discretion, furnish
Customer with Modifications and Updates fionr time to trine. Webalg shall use
commercially reasonable effois to provide necessary Updates, but does not
guarantee timeliness of delivery- of such. Webalg does not warrant receipt of
Updates within the time period reqund or recommended by the sauce,
Customer our customers of Customer. Webalg will transnst Updates to the
Customer's Licensed Program using, at webalg's sole election and at Customer's
oust, a Connection to the Internet, a telephonic modern our similar device. Webalg
assumes no liability for Customer's failure to update such Licensed Program with
Updates or Modifications, cur electronic or data transmission failures, and
Customer hereby holds Webalg harmless for such failures or delays: Customer
shall be required to. incopoate or apply all appropriate Updates and
Modifications with which Webalg provides it.
(b) Enhancements. Webalg reserves the right, but shall not be obligated, to
make Enhancements available to Customer during the Term. Webalg may charge
Customer an additional fee for any such Enhancement set forth at the time of the
release of such Enhancement by Webalg; however, Customer shall not be
obligated to license any such Enhancement fiom Webalg• Any additional
telephone charges and Internet service provider fees incurred by Customer related
to any Enhancement shall be at Customer's own expense. Webalg assumes no
liability for Custo en's failure to update the Licensed Program with
Enhancements provided to Customer by Webalg, or electronic or data
transmission failures, and Customer hereby holds Webalg harmless for such
failures or delays.
2
(c) Module Transfers. Webalg reserves the right, but shall not be obligated,
to make Module Transfers available to Customer during the Term Customer
agrees, in the case of a module Transfer, to permit the transfer of Customer's
license for a module(s) of the applicable Licensed Program from an existing
module of the Licensed Program to a new module of the Licensed Program or to
new product(s) offered by Webalg and/or its Affiliates incorporating such
functionality.
(d) Version Upgrades. Customer understands and acknowledges that Webalg
may make Version Upgrades, which may require Customer to convert from an
earlier version of a Licensed Program to a subsequent version. Version Upgrades
include, without limitation, conversions from one version of a Licensed Program
offered as of the Effective Date to another such version (i.e. LeaseLink 6.0 to
LeaseLink-Direct). Customer will have no right of termroation related to such
required Version Upgrade.
(e) Customer Obligations Upon Version Upgrades. Customer agrees in the
event that Webalg institutes a Version Upgrade to, upon Webalg's request, take
any such actions nwessaiy to its Operating Fuvirournent to operate the Version
webalg will provide sixty (60) days notice before requiring a
Upgrade-
Customer to institute a Version. Upgrade. Webalg may charge a one-lime fee for
training and installation costs with respect to a version upgrade.
7. Reovc atati nor. Warranties and Cnvmaats: Customer represents,
warrants and covenants to Webalg as of the Effective Date that:
(a) Customer is an entity, duly organized, validly existing and in good standing
under the laws of the state of its Ranh ation, and Customer is duly licensed or
qua, in. good standing, and authorized to do business in all other
jurisdietions where the nature of Customer's activities makes such licensing or
qualification necessary.
(b) Customer has the power and authority to (i) own its properties and assets, (ii)
engage in and transact the business in which Customer presently engages and
proposes to engage pursuant to this License Agreement, (ui) enter into this
License Agreement and (iv) do all things necessary to the proper performance of
this License Agreement.
(c) The execution, delivery, and pofomrarm of this License Agreement and the
won of the awsactsoms contemplated hereby have been duly
authorized by all necessary corporate action on the part of Customer.
(d) This License Agt constitutes the legal, valid and binding obligation of
customer, enforceable against Customr in accordance with its term .
Customer, on its behalf and on behalf of each of its users, represents, warrants
and Covenants to Webalg as follows:
(a) That it will comply at all times with all applicable federal, state and local
Iaws„ rules and regulations, including without limitation, all applicable federal,
state and local consumer protection, privacy protection and credit reporting laws,
roles and regulations.
(b) That it will not use the System for any purpose which is improper or which
violates this License: Agreement, any additional applicable terms of use set forth
by Webalg from time to time, or any other agreement between the panes,
(c) That it will not, nee will it permit any other person or entity, without the prior
written permission of Webalg, to: () copy or duplicate any Licensed. Prograor
any pact thereof, (H) create the sauce program and/or object program or code
associated with any component of any Licensed Program: (iii) mile,
disassemble or reverse engineer any software component of any Licensed
program; (sv) modify, alter or delete any of the copyright notices embedded in or report Or
affixed to the copies of any components of any Licensed Program or an hereunder
document gated therefrom, or (v) export any application provided
or any portion of any Licensed Program
(d) That any transmission of data from its computer equipment or system will be
free fim -(I) intentionally Aluuioms instructions (e.g. "viruses") are designed
to modify, damage, delete or disable any Licensed Program, () any hidden
passwords that permit unauthorized access to the data or any Licensed Program
by Customer or any third party.
(e) That the rrausumcsion of any data shall contain no embedded code that could
trigger, shut down or disable any Licensed Program upon the occurrence of any
time related event or other event.
(f) That it will not use any IACensed Program, including, without limitation, any
electronic communication feature thereof; for any purpose that is unlawful,
abusive, harassing, libelous, defamatory, obscene or threatening.
(g) That it has obtained and will continue to obtain and maintain all necessary
licenses, releases and consents to grant and/or exercise the rights and licenses set
forth herein.
8. Limited Warranty: Diaclaimea: Webalg warrants, for the benefit of
Customer only, that on the Effective Date, Webalg has the right and authority to
license the Licensed Programs to Customer- WEBALG DOES NOT
WARRANT THAT THE LICENSED PROGRAMS CAN BE USED WITHOUT
INTERRUPTION OR THAT THEY ARE ERROR-FREE. EXCEPT AS
EXPRESSLY SET FORTH IN THIS LICENSE AGREEMENT, WEBALG
DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, IMPLIED
WARRANTIES AND EXPRESS WARRANTIES WITH RESPECT TO ANY
LICENSED PROGRAM INCLUDING, WITHOUT LIMITATION, ITS
CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR
DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT
DEFECTS, AND ITS MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. WEIIALG DISCLAIMS ANY AND ALL
PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT
TO THE NATURE AND QUALITY OF ANY PERFORMANCE BY
WEBALG. WITHOUT LIMITING THE FOREGOING, WEBALG
SPECIFICALLY DISCLAIMS ANY WARRANTY THAT ANY LICENSED
PROGRAM, DATA, PRODUCTS, FIGURES AND LANGUAGE PRODUCED
BY THE LICENSED PROGRAMS AND/OR ANY EQUIPMENT SUPPLIED
TO CUSTOMER BY WEBALG CONFORM WITH ANY APPLICABLE
LAWS.
9. Exdusive Remedy. As Customer's exclusive remedy for any nonconformity
or defect in any Licensed Program for which Webalg is responsible, Webalg shall
provide its reasonable effort to correct or cure such nonconformity otherwise nr or d zL
Webalg shall not be obligated to correct, cure, other breach with
nonconformity or defect in any Licensed Program (or any
respect to the condition or operation of such Licensed Program), if (1) such
Licensed Program is not properly installed in a suitable Operating Environment,
which the Customer has the obligation to provide and maintain; (2) such
licensed Program is not properly maintained and operated miler normal.
conditions by qualiified personnel; (3) such Licensed Programsb w not nmisused,
otified
modified without WeWg!s consent, or damaged', () Gummier
Webdg promptly upon discovery of the pertinent nonconformity or defect or (5)
Custom has not incorporated or applied all appropriate Modifications, Updates,
Enhancemits and Version upgrades to such Licensed Program provided to it by
Webalg.
10. LIIMITTATION ON LIABILITY. IN NO EVENT SHALL WEBALWS,
ITS AFFQ,IATES' AND ITS SUPPLIERS'. AGGREGATE LIABILITY
HEREUNDER FOR ANY CAUSE, IN ANY CALENDAR YEAR, ARISING
OUT OF OR RELATED TO WEBALG'S PERFORMANCE OR NON-
PERFORMANCE UNDER THIS LICENSE AGREEMENT, EXCEED TEE
AMOUNT OF THE FEES PAID BY CUSTOMER TO WEBALG (IF ANY)
IN THE APPLICABLE CALENDAR YEAR, CUSTOMER ASSUMES
FULL RESPONSIBILITY, AND WEBALG SHALL IN NO WAY BE
LIABLE FOR, ANY LICENSED PROGRAM NONCONFORN.nUS,
DEFECTS OR OPERATIONAL FAILURES CAUSED BY SOFTWARE
OTHER THAN ANY LICENSED PROGRAM ON THE AUTHOR12ZD
EQUIPMENT.
11. LeaseLink Guarantee for New and Used Leased Vehicle Contracts. If
Customer shall discover, after erring into a final, binding pu chasor contract
with respect to a new or used leased vehicle structured with LeaseLink (a "New
or used Leased Vehicle LeaseLink Conme), that the terms of such New or
Used Leased Vehicle LeaseLmk Contract have been rejected by a financing
source (the "Lender") and such rejection is due entirely to an Eligible Error (as
defined below), Customer may request a Credit (as defined below) to the next
month's invoice pursuant to the following procedure: (1) Customer most report
such Eligible Error within twenty four (24) hours of discovery, and (2) Customer
must, within thirty (30) days of the processing of the New or Used Leased
Vehicle LesseLink Contract by L.easdmk, submit the following (collectively, the
Claims i ()a finalized claim form identifying evidence that an Eligible Error is the sole and direct cause of the rejection and providing such other information as
LeaseLink may require therein; (ii) the New or Used Leased Vehicle LeaseLink
Contract and the conuact the Lender actually approved; (iii) a copy of the Lender
notification of rejection; (iv) the completed "summary worksheet"; and (v) the
saved deal record from LeaseLink Webalg may, at its sole and absolute
discretion, contact the Lender or another lender to renegotiate the teams of the
issued contract or negotiate a new contract (such a contract, a "Substitute
Contract"). If presented with a Substitute Contract that more closely reflects the
terms of the New or Used Leased Vehicle LeaseLmk Contract, Customer will
cause the automotive purchaser to recontract with such Substitute Contract.
Provided that there shall has been no Customer default under this License
Agreement nor Customer failure to update Le=Lmk with any available Updates,
Modifications or Enhancements> Webalg shall, within ninety (90) days of receipt
of the Claim, provide customer with a credit reflected in the next applicable
Custum invoice equal to the amount, if any, that the amount of Rmdmg
proposed in the New or Used Leased Vehicle L.easeLink Contract exceeds the
amount of funds actually provided to the Customs' under the applicable contract
or Substitute Contract if appl
lim.under e (socit amount the
shall be subject tot"); fporlmlow"
however, that Webalgs obligations
limitations: (1) the aggiegate amount of any credits allocable to errors in a
particular month shall not exon three times the fee of LeaseLwk allocable to
such month as set forth in the Order Form hereto (expressly excluding any fee
allocable to other Licensed programs); (2) Webaig's obligation to provide any
credit shall expire with the expiration or earlier termination of the Term and (3)
Webalg shall not provide a Credit with respect to emus related to the following:
() Customer specific discount or special programs; (ir) credit related eligibility
and ineligibility rules-, (iii) Customer input errors or other incorrect or
unauthorized usage; (v) dealer prefe'e = elected by Customer, (v) late submittal
of application or New or Used Leased Vehicle LeaseLink Contract to Lends, (vi)
misrepreceatatiog of information to Lender, (vii) Lender program information
that is not in the possession of Webalg or was not provided to Webalg directly by
the Lender; or (viii) any transaction or Lmseiink data points specified by
Link (via LeaseLink or wise) as not being guaranteed price to or at the
time of the structuring of the transaction. THE FOREGOING CREDIT SHALL
CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY IN THE
EVENT OF THE OCCURRENCE OF ANY LEASELINK ERROR
For purposes of this license Agreement an "Eligible Error" shall mean a
maftic Lion of any of the following LeaseLiuk data points with respect to new or
used vehicles: (1) residual vahues; (2) maximum residual MSRP or CRV; (3)
Money fi?docs (bay rate only); (4) reserve meaY fictff mark-up rules'
(5) acquisition fee (upfignt and malrrded); (6) security. deposit (Wfiont and
included); (7) disposition fee (upfront and included); (8) program start and end
dates; (9). additional mileage cost (upfront and termination); (10) maximum
advance; (11) odd tam calculations; (12) ten extwsion calculations; (13)
waiver programs; (14) renewal programs; (15) low mileage calculation rules; (16)
initial mile rules; (17) annul mile rules; (18) contractual mile rules; and (19)
amount final rules.
12. Training. Webalg shall provide initial training to Customer with respect to
. usage of the Licensed Programs using WebEx or a similar Internet or video
cod=mg service for the fns set forth in the Order Form. If Customer desires
bal
9
m_person training or subsequent training for new employees or otherwise We
will charge its standard fees at the time for such training.
13. w, Pau:v C... `" and Tbird PA Wes. Webalg is not a
publisher of the Database Information or odw information supplied to the
System by thud parties in comiecaon with any Licensed Program. Any credit
information, opinions, advice, statements, services, contracm, offers, or other
information that is part of any Licensed Program that is expressed or made
available by third parties, including financing sources, credit bureau reporting
agencies and/or Customers or any other user of such Licensed Program, are those
of the respective authors or distributors and not of Webalg. WEBALG
ASSUMES NO RESPONSIBILITY AND MAKES NO REPRESENTATIONS,
WARRANTIES, RECOMMENDATIONS, ENDORSEMENTS OR
APPROVALS WITH REGARD TO SUCH THIRD PARTY INFORMATION. It
is the Customer's responsibility to evaluate and confirm the information,
opinions, advice or other material available through any Licensed Program,
whether posted or provided by third parties or by Webalg.
3
Certain versions of Licensed programs may contain hyperhnks to web sites that
are not operated by Webalg. Webaig does not control these web sites and is not
responsible for their contents, nor should the =go= of such links be construed
as an endorsement of the material appearing on such sites or as implying an
association between Webalg and their operators.
ff any Licensed Program is integrated with any third party Internet sites,
including, without limitation, any Internet site owned or operated by any affiliate
of Webalg, Customer agrees to abide by any and all terms of use or any other
rules or laws governing use of such Internet site. Customer expressly indemnifies
Webalg and its affiliates for any damages or losses incurred that are related "
way to Customer's breach of its obligations under this paragraph regardless of the
owner of the third party Internet site.
14. Intellectual P-rppectY. Customer acknowledges and agrees that Webalg
and/or its affiliates and/or its licensors shall own all worldwide tight, title and
interest in and to all Licensed Programs and any applications, services, text,
graphics, multimedia content, or other iufacmation, data, content or material
available on or through the Licensed Programs and pages within any domain
constituting a part of any Licensed Program, and all related code provided
through any Licensed Program, any modifications, updates, upgrades, copies,
derivative works, augmentations or custommdohs of the foregoing (colleativelY,
"Materials'), including all worldwide intellectual property rights to the sauce,
including without limitation, all United States and worldwide patents, putout
applications, copyrights, trademarks, trade secrets; rights of publicity and p1m'ce3'
and other proprietary rights. All rights not expressly granted to Customer herein
are expressly reserved to Webalg and its affiliates and licensors.
Material from any Licensed Program may not be copied, reproduce, distributed
or modified, except that Customer may print and provide credit applications,
financing contracts, disclosures, and other materials as expressly provided in
LeaseLmk for use with financing sources, Customers and/or consamas.
Modification of these Materials or use of the Materials for any PUIPOsc Other than
Program
that expressly permitted herein or otherwise on any Licensed is a
violation of copyright and other proprietary rights and the use of arty such
Material on any other web site or computer environment is strictly prohibited.
15. Trademar "LeaseLink"(0 and "FinanceWizard as well as other related
marks which may appear on any Licensed Program (`Marks''), are the service
marks and trademarks of Webalg. All other trademarks, service marks and logos
used in any Licensed Program, with or without attribution, are the trademarks,
service marks or logos of their respective owners.
16. Inf inment: Notwithstanding awfddng to the contrary in this License
Agreement:
(a) If any Licensed Program is, or. Webalg's sole discretion is likely to
become, subject to a claim of infringement, Webalg, at its option and expense,
shall either (r) procure for Customer a hoense or a right to coutimhe using such
Licensed Program; or (R) modify sack Licensed Program to make it non-
infringing • a mannerthat does not materially impair its fummionality If neither
in ..
of the foregoing two options is reasonably available to Webalg, then either party
may terminate this License Agreement by notice to other party. The foregoing
shall be Cwtomer's sole and exclusive remhody and Wotnalg's sole and owhisive
obligation with respect to any infringement claims relating to such Licensed
Program.
(b) Wcralg will have no obligation with respect to any actual or infringement claim based in whole or in part upon Customer's (i) threatened
computer
system, (ii) any enhancements, upgrades or modifications to any Licensed
Program made by Customer, or any party that Customer authorizes, directs or
permits to make such enhancements, upgrades or modifications, unless
specifically provided by Webalg or (ice) Customer's failure to use any Licensed
Program in accordance with this License Agreement.
17. Changes to Services. Webalg may, from time to time, introduce new
services to any licensed Program, modify or delete existing features of any
Licensed Program, or move modules contained in a licensed Program or another
Licensed Program or other product offered by Webalg or a Webalg affiliate.
Webalg shall notify Customer of any of these changes to services. By using any
new or modified services when they become available, Customer agrees to be
bound by the rules concerning these services, including applicable fee
provisions. Copies of such rules will be made available to Customer at
Customer's request or will be sent to Customer if Webalg is required by
applicable law to automatically provide Customer with such rules. Such services
may include the ability to access a Licensed Program in the future through the
website of Webalg or the of its affiliates.
18. Safeguarding of Customer Information. Webalg agrees to implement and
maintain physical, electronic and procedural safeguards to guard all nonpublic
personal id'ormation and data relating to Dealer's customers to which Webalg
has access pursuant to the terns of this Agreement. Such safeguards shall
include appropriate procedures designed to: (i) protect the security and
cxni'identiality of such information, (n) protect against anticipated threats or
bazards to the security or integrity of such information and (iii) protect against
unauthorized access to or use of such information that could result in substantial
harm or inconvenience to any customer of Dealer.
19. ApnMgMt. Customer may not sell, transfer , assign, sublease, sublicense or
encumber any Licensed Program, any Equipment, this Lioemse Agreement or any
rights hereunder wrdxxd Webalg's prig written consent Webalg may sell,
transfer, assign or encumber this entire License Agreement or any part thereof
including without limitation any miles doe or that become due under this
License Agreement and, if any such assignment of monies due occurs, customer
agrees to pay all somas assigned directly to the assignee. Customer agrees that the
rights of the assignee will not be subject to any claims, doffenses, or sduoffs that
Customer may have against WeWg. In the event Webalg assigns any part of the
monies due under this License Agreement, the assignee's right to receive such
sums shall not be subject to my defense, s& A or counterclaim Customer may
haw against Webalg bat shall be subject to any defense Customer has against
assignee. Subject to the foregoing, this License Agreement imats to the benefit
4 and is binding upon, the successors and assigns of the parties herein.
20. Csoveming Law 1 Venue. Any disputes arising from this License
Agreement shall be governed by the laws of the State of New York (without that any
reference to the conflict of law rules dxreoi). Each party a? in any
hugati n arising out of at relating.to this License Agrooomat shall heard by the state courts with jurisdiction to hear such suits located in New York,
New York. Notwithstanding the foregoing, either party may apply for injunctive
relief m any court of competent jurisdiction.
21. Counterparts. This Agreement may be executed in any number cf
counterparts, each of which stall be domed an original, but such counterparts
together shall constitute one and the same instrument. Each counterpart may be
delivered by facsimile transmission, which transmission shall be deemed d dn=Y
of an originally executed document.
22. rvrli ' If it is determined by a cant of competent jurisdiction that
any provision of this Agreement is invalid under applicable law, such provision
shall be ineffective only to the extent of such invalidity, without inWidatmg the
remainder of this Agreement
23. Notlc' . All notices and other communications prom W for herein shall be
in writing and shall be deemed to have been duly given when delivered
personally or sent by telex or telecopy or throe (3) business days alter being
mailed by registered or certified mail, retncn receipt requested, pomp prepaid,
to the party to whom it is directed or one (1) business day after being sent via a
nationally recognized courier service for mot business day delivery, to the Party
to whom it is directed, for either party, at such address as sex forth in the Order
Form
24. Miscedlaneorffi. With the exception of and subject to any Addeadabetween
Customer and Webalg for arty Licensed Program, Customer agrees tb
License Agreement is the complete and exciwive statement of the agreement
between the parties and that it supersedes all proposals or prior oral or written
agreements and all other motions between the parties relating to the
subject matter hexed `fins License Agreement shall became effective when
accepted and executed by both Customer and Webalg. No team of this License
Agreement may be amended or waived except by a written instrument signed by
all parties to this agreement
[Signature Page Follows]
4
kkkkk
IN WITNESS WHEREOF, the parties hereto have caused this License Agreement to be duly executed as of the date first above written
WEBALG, INC. CUSTOMER Carlisle Chrysler Jeep Uc
By: Ne Santana •/ By-
Title: Sr. Sales Specialist Title:
LeaseLink°
ORDER FORM
=web alg
?r .CtealerTlack c-nmpany
In consideration of Webalg's provision of a license to access and use the LeaseLink application C`LeaseLit k'7 and/or FinanceWizard application (FinanceWizard"), as
set forth in the Software License Agreement Software License Agreement") by and between the parties, Customer shall pay the fees ("Fee" or "Fees") at the time and
C Software as otherwise defined herein, all capitalized teens used in
on the dates specified in this Order Farm or as otherwise set forth in the Software License Agreement ;s Order Form is attached to and is part of the Software License
Agreement.
this Order Form shall have the meanings attributed to there in the Software License
WEBALG, INC.
By: Nelson Santana
Title: Sr. Sales Specialist
CUSTOMER Carlisle Chrysler Jeep Uc
L-
By:
Title:
INWITNESS WHEREOF, the par qpigigba)v causedtbis Order Form to be duly executed as of the daft fast set forth in the Softam License Agreement
EXHIBIT "B"
s DeaterTrack
Carlisle Chrysler Jeep
1119 Harrisburg Pike
Carlisle, PA 17013
Attn: Accts Payable
June 1, 2006
Customer Number: 60914201
Invoice Number: 60914201060106
Invoice Date: 06/01/06
Transaction Number Description Ouanti Unit Price Extended
60914201060106 Desk-ink: Mnthy Subscription Amt from 07101106 to 06130/08
Desk-ink: Prorated Amt from 07101107 to 07126108
Previously invoiced and outstanding as of 05111106
24 795.00 19,080.00
1 666.87 666.87
5,693.22 5,693.22
$25 440.09
Invoice Total
.Note: Payments recehred after the Woke date we be reflected M the next Ywoice.
Please detach and return lower Portion with our payment DO NOT STAPLE OR FOLD.
Account Code Invoice Number Amount Due
raft Deat?''rTrack- 60914201 60914201060106 $25440.09
V Total Amount Enclosed
s
Make Check Payable to: DealerTrack, Inc.
Payments ONLY:
DealerTrack, Inc.
PO Box 6129
New York, NY 10087-6129
AO other correspondences shoal be sent to:
[wWT-k Inc., 1111 Maras Avnaa, St. Mel. Lk. Suxaas, NV 1155
VERIFICATION
Ellm WiMi& , hereby states that+to/she is the eo?f-w
& 17;'I ac e IT17C • Plaintiff in this action, and verifies that the statements
made in the attached Complaint are true and correct to the best of his/her knowledge,
information and belief. The undersigned understands that the statements herein are made
subject to the penalties of 18 PA C.S. §4904 relating to unsworn falsification to authorities.
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SHERIFF'S RETURN - REGULAR
CASE NO: 2007-02406 P
COMMONWEALTH 0 PENNSYLVANIA:
COUNTY OF CUMB RLAND
DEALERTRACK
CARLISLE CHRYSLER JEEP LLC
RICHARD E SMITH , Sheriff or Deputy Sheriff of
Cumberland Cou ty,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
CARLISLE CHRYSLER JEEP LLC the
DEFENDANT , at 1231:00 HOURS, on the 30th day of April 2007
at 1119 HARRISBURG PIKE
CARLISLE, PA 17013-1618 by handing to
WALTER BRAITHW ITE (OWNER)
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18.00
Service 4.80
Affidavit .00 •
Surcharge 10.00 R. Thomas Kline
.00
/a9?G9 32.80 04/30/2007
AMATO & ASSOCIATES
Sworn and Subscibed to By:
before me this day D T put Sheriff
of A.D.
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DEALERTRACK, INC.
Plaintiff No. 07-2406 Civil
VS.
CARLISLE CHRYSLER JEEP, LLC
Defendant(s)
CIVIL ACTION
PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please discontinue the above-captioned case WITHOUT prejudice.
AMATO AND SO ATES P.C.
By:
Rona td Amato, Esq., Atty ID #32323
Michael J. Kennedy, Esq., Atty ID #72412
Michael R. Lessa, Esq., Atty ID #88617
Justin N. Davis, Esq., Atty ID #84464
Attorneys for Plaintiff
107 North Commerce Way
Bethlehem, PA 18017
(610) 866-0400
A DEBT COLLECTION LAW FIRM
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