ACORN FINANCE DEALER AGREEMENT
By clicking the checkbox and submitting the online Dealer Application, the dealer accepts the terms of this Acorn Finance Dealer Agreement (“Agreement”) on the date of submission (“Effective Date”), between Headway Sales Inc. dba Acorn Finance, a Delaware corporation with principal offices at 2600 Capitol Ave, Suite 320, Sacramento, CA 95816 (“Acorn Finance,” “Acorn,” “the Company,” “we,” “us,” or “our”), and the Dealer.
W I T N E S S E T H
WHEREAS, Dealer is in the business of providing goods and services to Consumers; and
WHEREAS, Acorn is in the business of assisting Dealer’s customers with finding financing for the purchase of goods and services from Dealer; and
WHEREAS, Acorn maintains and operates a website and a mobile application for that purposes;
NOW, THEREFORE, in consideration of these premises, and with the intent to be legally bound, Acorn and Dealer agree as follows:
In this Agreement:
“Affiliate” means any Person, directly or indirectly, controlling, controlled by or under common control with a Party. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” or “controlled” have meanings correlative to the foregoing.
Any applicable federal, state, or local law, statute, rule, regulation or ordinance, or judicial, governmental, or administrative order, directive, decree, policy, guideline or ruling applicable to consumer protection, or any other operations or activities to be undertaken (or actually undertaken) by a Party hereto pursuant to or in connection with this Agreement or the Acorn Site, and including, without limitation, the Equal Credit Opportunity Act, 15 U.S.C.A. §§ 1691, et seq. and Regulation B, 12 C.F.R. Part 1002 (“ECOA”); the Fair Credit Reporting Act, 15 U.S.C.A. §§ 1681, et seq. and Regulation V, 12 C.F.R. Part 1022 (“FCRA”); the International Money Laundering Abatement and Financial Anti–Terrorism Act of 2001, 12 U.S.C.A. §§ 1829b and 1951-1959; 31 U.S.C.A. §§ 5311-5314 5316-5332 and 31 C.F.R. Chapter X (“AML Rule”), the Gramm-Leach-Bliley Act, 15 U.S.C.A. §§ 6801 et seq., and Regulation P, 12 C.F.R. Part 1016 (“GLB”); the Truth-in-Lending Act, 15 U.S.C.A. §§ 1601, et seq. and Regulation Z, 12 C.F.R. Part 1026 (“TILA”); and state law equivalents; the Telephone Consumer Protection Act, 47 U.S.C.A. §§ 227 et seq. and 47 C.F.R. Part 64 (“TCPA”); Miscellaneous Rules Relating to Common Carriers, Subpart L, Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising, 47 C.F.R. §§ 64.1200 et seq.; and the Federal Trade Commission Credit Practices Rule, 16 C.F.R. Part 444; and state law where a Consumer resides.
“Consumer” means a natural person that uses the Acorn Site.
“Acorn Finance Site” means (i) the series of web pages maintained by Acorn that may be accessed through the Internet at www.acornfinance.com or any successor site thereto; (ii) mobile application available for download on Apple and Android stores; (iii) provides a web and mobile portal for Consumers to apply and prequalify for loans from third party lenders; and (iv) any related services provided in connection therewith. “Intellectual Property Rights” means any and all rights (existing anywhere in the world) in, arising out of, or associated with Acorn’s technology, intellectual property and proprietary materials, including software, developer tools, inventions, trade secrets, and other copyrightable materials, data, and algorithms and includes the Promotional Materials.
“Lead” means an electronic message to Dealer or a Lender relaying verified contact information for a Customer.
“Lender” means a third party that makes a Loan to a Consumer resulting from the Consumer’s use of the Acorn Site.
“Parties” or “Party” means Acorn and Dealer as the case may be.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, or other entity.
“Promotional Materials” means any media used to promote the Acorn Site, including but not limited to business cards, envelopes, flyers, print ads, scripts, recordings videos, photographs and other similar materials.
“Technology Provider” means any person that provides support services for the Acorn Site.
2. Acorn’s Services
Acorn may, from time to time, provide Dealer with Consumer-facing Promotional Materials which shall direct Consumers to the Acorn Site.
3. Dealer’s Representations and Warranties.
Dealer makes the following representations and warranties:
3.1 Dealer’s Authority.
Dealer is duly organized, validly existing and in good standing in the state of its formation, and is exempt, duly licensed or registered, as applicable, as required by Applicable Law, qualified and in good standing to conduct all activities performed with respect to Dealer’s goods and services in each state where Dealer operates. Dealer has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement. The execution and delivery of this Agreement by Dealer, and the performance of, and compliance with, the terms of this Agreement by Dealer, do not violate Dealer’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its Affiliates.
3.2 Consents and Approvals.
No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by Dealer of, or compliance by Dealer with this Agreement, or, if required, such approval has been obtained prior to the consummation of this Agreement. Dealer possesses all licenses and will maintain and authorizations (including all applicable state and federal permits, licenses and regulatory approvals), if any, necessary or required to carry on its business in each jurisdiction in which Dealer operates.
3.3 Legal Compliance.
Dealer shall operate in compliance with Applicable Law. Dealer shall maintain in its possession evidence of compliance with all such requirements.
3.4 No Adverse Events.
There is no action, suit, proceeding or investigation pending or, to Dealer’s knowledge, threatened in writing against Dealer which, either in any one instance or in the aggregate, is likely to result in any material adverse change in the business, operations, financial condition, properties or assets of Dealer, or in any material impairment of the right or ability of Dealer to carry on its business substantially as now conducted, or in any material liability on the part of Dealer, or which would draw into question the validity of this Agreement, or of any action taken or to be taken in connection with the obligations of Dealer contemplated herein, or which would be likely to impair materially the ability of Dealer to perform under the terms of this Agreement. Immediately after the commencement of any such action, suit, proceeding or investigation, Dealer shall cease using all Promotional Materials, all Confidential Information and the Acorn Site. Dealer shall notify Acorn within thirty (30) days of the commencement of any such action, suit, proceeding or investigation. After review of the Dealer’s notification, Acorn shall communicate to the Dealer in writing on whether or not the Dealer shall recommence to use using all Promotional Materials, all Confidential Information and the Acorn Site.
4. Dealer’s Covenants.
4.1 Promotional Materials
Dealer may use Promotional Materials only if provided, or approved in advance, by Acorn.
4.2 Consumer Financing
Dealer will not make any representations on Acorn’s behalf. Any Consumer questions regarding Acorn, including those about loan products or the application process, must be referred for answer by Acorn. Dealer shall not make any promises or predictions to Consumers that a lender will or will not approve the Consumer’s loan application. Dealer will not represent itself or Acorn as a lender or broker; Dealer will not represent to its customers or potential customers either that Acorn is the exclusive source of funding for a customer or that Acorn displays all available options for any customer. Dealer will not complete a Consumer loan application for the Consumer, including but not limited to, entering Consumer data into the online application form. All Consumer loan applications must be completed by the Consumer. Dealer expressly understands and agrees that the Consumer is under no obligation to utilize the services of the Dealer if the Consumer is provided financing.
4.4 Acorn”s Intellectual Property Rights
Dealer shall not infringe on Acorn’s Intellectual Property Rights. Dealer shall not misuse or misappropriate Acorn’s Promotional Materials.
5. Acorn Finance’s Representations and Warranties.
Acorn makes the following representations and warranties:
5.1 Acorn’s Authority.
Acorn is duly organized, validly existing and in good standing in the state of its formation, and is exempt, duly licensed or registered, as applicable, as required by Applicable Law, qualified and in good standing to conduct all Acorn has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement. The execution and delivery of this Agreement by Acorn, and the performance of, and compliance with, the terms of this Agreement by Acorn, do not violate Acorn’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its Affiliates.
5.2 Consents and Approvals.
No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by Acorn of, or compliance by Acorn with this Agreement, or, if required, such approval has been obtained prior to the consummation of this Agreement. Acorn possesses all licenses and authorizations (including all applicable state and federal permits, licenses and regulatory approvals), if any, necessary or required to carry on its business.
5.3 No Adverse Events.
There is no action, suit, proceeding or investigation pending or, to Acorn’s knowledge, threatened in writing against Acorn which, either in any one instance or in the aggregate, is likely to result in any material adverse change in the business, operations, financial condition, properties or assets of Acorn, or in any material impairment of the right or ability of Acorn to carry on its business substantially as now conducted, or in any material liability on the part of Acorn, or which would draw into question the validity of this Agreement or of any action taken or to be taken in connection with the obligations of Acorn contemplated herein, or which would be likely to impair materially the ability of Acorn to perform under the terms of this Agreement. Acorn shall notify Dealer within thirty (30) days of the commencement of any such action, suit, proceeding or investigation.
6. Mutual Covenants
Each Party recognizes that, in connection with this Agreement, it may become privy to non-public information regarding the financial condition, operations, and prospects of the other Party, including, without limitation, the loan terms and credit underwriting criteria of Acorn, as amended from time to time. Except as required to be disclosed by law, each Party agrees to keep all non-public information regarding the other Party strictly confidential (except that Acorn may disclose such information to its Affiliates and service providers) and to use all such information solely in order to effectuate the purpose of this Agreement or as required by Applicable Law, unless such information is (i) in the public domain; (ii) already in the possession of the other Party prior to its disclosure by the disclosing Party (including information received lawfully from third parties without an obligation of confidentiality); (iii) required by law or regulation to be disclosed; (iv) in the case of Acorn to its Affiliates, members, partners, investors and advisors or (v) disclosed to a third party who is retained by the other Party to perform services with respect to this Agreement, provided that such third party is bound by an agreement to keep such information confidential. Dealer acknowledges that Acorn confidential information includes the personally identifiable information of residents of the Communities owned by Acorn’s Affiliates. Dealer acknowledges and agrees that it shall hold such information confidential and in accordance with Applicable Law and shall not solicit any of such residents or provide such information pertaining to such residents to third parties.
In the event that a Party becomes legally compelled to disclose any of the proprietary information, the other Party will to the extent practicable and legally permissible, provide the disclosing Party with prompt prior written notice so that the disclosing Party may seek, at its sole cost and expense, a protective order or other appropriate remedy (including taking action to assure confidential handling of the information) and/or waive compliance with the provisions of this Agreement. Each Party will use its best efforts to obtain or assist the other Party in obtaining any such protective order. Both Parties agree to keep confidential and return upon termination, or sooner upon request, the proprietary documents and data delivered to the other with the transactions contemplated by this Agreement.
Upon termination of the Agreement, or upon written request of the other Party, each Party shall promptly return to the other all documents and other tangible materials representing the other’s Confidential Information and all copies thereof.
Nothing contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Neither party shall make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.
Acorn may in its sole discretion provide Dealer with limited information related to Acorn’s ability to locate a loan offer for a consumer (“Loan Offer Information”). Loan Offer Information will be limited to: (a) the fact that an unidentified party has provided a Consumer with a loan offer on unspecified terms and in an unspecified amount; (b) the fact that an unidentified party made a loan to the Consumer on unspecified terms and in an unspecified amount; and/or (c) the fact that Acorn was unable to find a party to make a loan offer to the Consumer. Dealer agrees that the Loan Offer Information is Acorn’s Confidential Information. Dealer agrees not to use and not to disclose the Loan Offer Information, except to the extent allowed by this Section. Acorn and Dealer agree that Dealer may use the Loan Offer Information for its own analytics, development, diagnostic and corrective purposes in connection with this Agreement. In addition, any party receiving Loan Offer Information shall maintain commercially reasonable data security measures or destroy such Loan Offer Information in a commercially reasonable manner.
Dealer shall indemnify Acorn and its successors, Affiliates and assigns, and their respective officers, directors, employees, agents, successors and assigns, (collectively, the “Acorn Indemnified Parties”), and hold the Acorn Indemnified Parties harmless against, any loss, damages, claims, penalties, fines, forfeitures, judgments, legal fees and related costs (collectively, “Losses”) arising out of or resulting directly or indirectly from (i) a breach of any representation, warranty, covenant, or other obligation of Dealer hereunder that is not cured within thirty days’ written notice by Acorn, or (ii) the failure of Dealer to comply with any Applicable Law. Notwithstanding any of the foregoing, Dealer shall not be responsible to indemnify any Person for any Losses arising out of or resulting from gross negligence or intentional misconduct of any Acorn Indemnified Party.
Acorn shall indemnify Dealer and its successors, Affiliates and assigns, and their respective officers, directors, employees, agents, successors and assigns (collectively, the “Dealer Indemnified Parties”), and hold the Dealer Indemnified Parties harmless against any loss, damages, penalties, fines, forfeitures, judgments, legal fees (including reasonable attorney’s fees) and related costs (collectively, “Losses”) arising out of or resulting directly or indirectly (i) from a breach of any representation, warranty, covenant, or other obligation of Acorn hereunder that is not cured within thirty days’ written notice by Dealer, or (ii) the failure of Acorn to comply with any Applicable Law. Notwithstanding any of the foregoing, Acorn shall not be responsible to indemnify any Person for any losses arising out of or resulting from gross negligence or intentional misconduct by any Dealer Indemnified Party.
The Indemnifying Party’s defense and indemnity obligations in this Section 7.2 are conditioned upon the following: (i) the Indemnified Party giving the Indemnifying Party prompt notice in writing of any claim; (ii) the Indemnified Party giving the Indemnifying Party sole control of the defense, compromise or settlement of the claim; and (iii) the Indemnified Party giving all reasonably available information and assistance regarding that claim. The Indemnified Party will have the right to participate in the defense of a claim at its own expense and with counsel of its own choosing. The Indemnifying Party will not be liable for any costs or fees incurred by the Indemnified Party and its Affiliates on that action or claim unless authorized in writing by the Indemnifying Party.
7. Infringement of Intellectual Property Rights
Dealer acknowledges that a breach of Dealer’s Covenants in Section 4 of this Agreement will cause irreparable damage to Acorn for which the remedies at law may be inadequate, and hereby agrees that, in the event of any actual or threatened breach of this Agreement, Acorn shall be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.
8. Term and Termination
This Agreement will become effective on the Effective Date and will renew automatically one year from the Effective Date and may be terminated without cause by either Party upon 30 days’ notice.
Upon termination of this Agreement, Dealer immediately shall cease using all Promotional Materials, all Confidential Information and the Acorn Site and return all Promotional Materials and tangible Confidential Information to Acorn.
Sections 3, 6, 7, 8 and 10 shall survive termination of this Agreement.
9. Mandatory Arbitration and Class Action Waiver
Dealer and Acorn agree that this Dealer affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 10 is intended to be interpreted broadly and governs any and all disputes between the Parties including but not limited to claims arising out of or relating to any aspect of the relationship.
9.1 Agreement to Arbitrate.
Dealer and Acorn agree to mandatory, binding arbitration (“Arbitration”) of all disputes, claims, controversies, grievances, causes of action, including, but not limited to, common law claims, contract and warranty claims, tort claims, statutory claims, and, where applicable, administrative law claims, and any other matter in question (“Claims”) arising from or relating to this Agreement, any events leading up to this Agreement, and the interpretation, scope, validity or enforceability of this Agreement (with the exception of this agreement to arbitrate, the “Arbitration Agreement”). The interpretation, scope, validity or enforceability of this Arbitration Agreement or any clause or provision herein and the arbitrability of any issue shall be determined by a court of competent jurisdiction.
Notwithstanding the foregoing, Acorn may elect to enforce its rights under Section 8 of this Agreement in a court of competent jurisdiction.
9.2 Individual Claims; Related Claims.
Dealer and Acorn agree that this Arbitration Agreement is intended to cover only Claims brought by either Party on an individual basis and not on a representative basis as a class action. Dealer and Acorn waive the right to participate as a representative or member in a class action or otherwise join its Claims with those of any other person.
If Dealer or Acorn have Claims against others (each, a “Third Party”) related to or arising from facts or circumstances covered by this Arbitration Agreement (each, a “Related Claim”), then Dealer and Acorn agree to consolidate the Arbitration of its Claims against the other, brought on an individual basis, with the Arbitration of any and all Related Claims, brought on an individual basis, into one Arbitration to be governed by this Arbitration Agreement, provided, however, that the Third Party must agree to be joined in the Arbitration of the Related Claims under this Arbitration Agreement. If any Third Party does not agree to be joined in the Arbitration of its Related Claim, then Arbitration under this Arbitration Agreement shall proceed without that Third Party. Dealer agrees not to arbitrate any Related Claims as a class action. In all other circumstances, Dealer and Acorn agree to give up any right to consolidate or join any individual Arbitration with the Arbitration of others.
9.3 Arbitration Rules
All claims arising out of or relating to the Agreement shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
If the terms of this Arbitration Agreement and the Arbitration Rules conflict, the terms of this Arbitration Agreement shall control to the extent of the conflict. The person who conducts the Arbitration (the “Arbitrator”) shall have all powers provided by the Arbitration Rules and this Arbitration Agreement. After the Arbitrator is selected, the Arbitrator, in accordance with the Arbitration Rules, will set a reasonable schedule, in light of the nature and complexity of the Claims, for the Arbitration and discovery, including any depositions, the exchange of written documents, the final deadline for discovery prior to the Arbitration, and other discovery matters addressed in the Arbitration Rules. The Arbitration shall be conducted in Sacramento, California. At the election of either Dealer or Acorn (and at the expense of the electing party), the Arbitration may be recorded and transcribed by a court reporter. Judgment upon the award rendered may be entered in any court having jurisdiction.
The Parties agree that information exchanged in the Arbitration shall be held confidentially, and shall not be used in other arbitrations or court proceedings. All statutes of limitation that would otherwise apply to a Claim in a judicial action shall apply to the Arbitration of that Claim under this Arbitration Agreement. The Arbitrator shall apply applicable substantive law and shall honor claims of privilege recognized at law and consider defenses that a court could consider. The Arbitrator’s decision shall be in writing, and shall include the Arbitrator’s reasons for the award, including detailed findings of fact and conclusions of law. The Arbitrator may award the prevailing party in the Arbitration with that party’s reasonable attorney’s fees and any fees paid to commence the Arbitration, including the Arbitrator’s fees, if such are available under applicable law. Any Claim or counter-claim (including compulsory or permissive under law) of a party must be made in the Arbitration, and the failure to bring such Claim or counterclaim shall constitute a waiver of and a bar to bringing such claim or counterclaim in a later Arbitration or action in court.
9.4 Fees and Costs
The fees and costs imposed by the Arbitration Administrator associated with the Arbitration, including the Arbitrator’s fees, shall be paid in accordance with the Arbitration Rules and this Arbitration Agreement.
If it is determined that any provision in this Arbitration Agreement (other than the class action waiver or the agreement with respect to joinder of Arbitrations in Section 10.2 of this Agreement) is illegal, invalid, or unenforceable, such illegality, invalidity or unenforceability shall not affect the other paragraphs and provisions of this Arbitration Agreement and the remainder of this Arbitration Agreement shall continue in full force and effect as if the severed paragraph or provision had not been included. Notwithstanding this severability provision or any other provision of this Agreement or Arbitration Agreement, if a court of competent jurisdiction finally determines the class action waiver or the agreement with respect to joinder of Arbitrations in Section 10.2 of this Agreement, to be illegal, invalid, or unenforceable, then the Parties agree that such waiver shall not be severed and that this Arbitration Agreement shall be void in its entirety without effect on the remainder of this Agreement.
9.6 Survival of Arbitration Agreement.
This Arbitration Agreement will survive and continue in full force and effect notwithstanding rescission, cancellation, termination, amendment, payment in full, discharge in bankruptcy, or other expiration or conclusion of this Agreement or any other contract or transaction between the Parties, unless otherwise agreed to in writing by the Parties. In addition, Dealer understands and acknowledges that the rights afforded to Acorn under this Arbitration Agreement survive any assignment of this Agreement by Acorn and that Acorn can enforce this Arbitration Agreement in the event a Claim arises after the assignment of this Agreement.
9.7 Rules of Construction.
If there is a disagreement on the interpretation of this Arbitration Agreement, this Arbitration Agreement shall be construed to require Arbitration, rather than to defeat it, except for class actions, which the Parties agree not to arbitrate. Dealer and Acorn waive the rule of construction that requires a tribunal to construe a vague or ambiguous provision against the drafting party.
9.8 Jury Waiver.
Dealer and Acorn hereby expressly and irrevocably waive any right to a trial by judge or jury of any Claims covered by this Arbitration Agreement. This waiver will remain enforceable even if any portion of this Arbitration Agreement is otherwise found to be unenforceable. The Parties agree that this waiver is made knowingly, willingly, and voluntarily.
10.1 Relationship of Parties
The relationship between Dealer and Acorn as set forth in this Agreement is non-exclusive. Acorn acknowledges that Dealer has heretofore entered into, and may, in the future, enter into, similar arrangements with other Persons, and, likewise, Dealer acknowledges that Acorn has heretofore entered into, and may, in the future, enter into, similar arrangements with other Persons. Dealer is an independent Dealer and Acorn shall not represent itself in any manner to be an agent, representative, partner or joint venturer of Dealer, and, likewise, Dealer shall not represent itself in any manner to be an agent, representative, partner or joint venturer with Acorn or any of its Affiliates.
10.2 Assignment and Third Party Beneficiary.
Neither this Agreement nor any of the rights or obligations hereunder may be assigned by Dealer without the prior written consent of Acorn, such consent not to be unreasonably withheld or delayed; provided, however, that Acorn may assign its rights and obligations hereunder without the consent of Dealer to an Affiliate of the Acorn or in connection with a merger or acquisition. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns, and no other Person (other than the Acorn Indemnified Parties and the Dealer Indemnified Parties) shall have any right, benefit or obligation hereunder; provided, however, that Acorn’s Lenders and Technology Providers shall be third party beneficiaries and entitled to assert against Dealer the rights and remedies granted to Acorn by this Agreement.
10.3 Governing Law; Jurisdiction; Venue.
This Agreement shall be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law that would cause the application of the laws of any other jurisdiction. In an action to enforce Acorn’s rights under Section 8 of this Agreement (a) submits to personal jurisdiction in the State of California, the courts thereof and the United States District Courts sitting therein, for the enforcement of this Agreement, (b) waives any and all rights under the law of any jurisdiction to object on any basis (including, without limitation, inconvenience of forum) to jurisdiction or venue within the State of California for the purpose of litigation concerning this Agreement, and (c) agrees that service of process may be made upon it in any manner prescribed by applicable Federal Rules of Civil Procedure for the giving of notice. Dealer agrees that a final judgment, after all appeals, if any, in any such proceeding or counterclaim brought in any such court shall be conclusive and binding upon such Dealer and may be enforced in any other courts in the jurisdiction of which such Dealer is or may be subject, by suit upon such judgment.
Except as otherwise specifically provided in this Agreement, any notice or other communication required or which may be given hereunder, shall be in writing and either delivered personally to the addressee, or sent by email to the addressee (with a copy sent by personal delivery or nationally recognized overnight courier), or delivered by a nationally recognized overnight courier, and shall be deemed given when so delivered personally, or sent by confirmed facsimile transmission prior to 5 p.m. in the recipient’s time zone, or upon receipt of confirmation of delivery by email, or upon receipt if delivered by a nationally recognized overnight courier, as follows:
If to Acorn:
2600 Capitol Ave, Suite 320
Sacramento, CA 95816
Attn: Dealer Notice
If to Dealer, such address as Dealer has specified in the Dealer Application or verbally or in writing to the other from time to time.
10.5 Entire Agreement.
This Agreement, including the Arbitration Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and may not be amended except by written agreement signed by both Parties.
10.6 Further Action.
The Parties shall execute such documents and other papers and take such further actions as may be reasonably required or desirable to carry out the transactions contemplated by this Agreement. Upon the terms, and subject to the conditions of this Agreement, each of the Parties shall use its reasonable, good faith efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement.
10.7 Attorneys’ Fees.
In the event of any litigation between the Parties arising out of this Agreement, the prevailing Party shall be entitled to recover all costs incurred, including without limitation attorneys’ and paralegals’ fees and costs, whether such fees and costs are incurred at trial, on appeal or in any bankruptcy proceedings. This provision shall survive the expiration or termination of this Agreement.
This Agreement may be executed in one or more counterparts, all of which shall together constitute one and the same instrument, and shall become effective when one or more counterparts hereof have been signed by Dealer and delivered to Acorn and one or more counterparts hereof have been signed by Acorn and delivered to Dealer.
10.9 Cumulative Remedies.
Acorn’s rights and remedies under this Agreement are distinct and cumulative not only as to each other but as to any rights or remedies afforded by law or equity, and may be exercised by Acorn concurrently or in any order desired by Acorn.
10.10 No Waivers.
Any failure by Acorn to exercise any right or remedy hereunder shall not operate as a waiver of the right to exercise such rights as to any further or subsequent breach or default. All of Acorn’s rights and remedies shall survive any termination of this Agreement.
The captions provided in this Agreement are for purpose of reference only and shall not be construed or interpreted to vary the terms of this Agreement.
In the event that any one or more of the provisions contained in this Agreement or in any other instrument referred to herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument.