Terms of Use

Effective Date: April 1, 2023

The following Terms of Use apply whenever you access, use, view or provide information or documents   online through the various West Herr Automotive Group dealership and affiliate websites (the "Site"). Please review the following terms carefully. By accessing or using the Site, you signify your agreement to these Terms of Use. If you do not agree to these Terms of Use, you may not access or use the Site. References to "you" or "your" or variations thereof shall mean individual users of the Site, and references to "WH," "we," "our," "us," “West Herr Automotive Group”, “West Herr”, or variations of any of these, shall mean West Herr Automotive Group and its dealerships, service and collision shops, and other affiliates, acting as a retailer or wholesaler of automotive sales and services to you.   This Site is offered and available to users who are 13 years of age or older.  

THESE TERMS OF USE INCLUDE A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST WH THAT MAY ARISE OUT OF YOUR USE OF THE SITE. BY USING THE SITE, YOU AGREE TO THIS RELEASE.

THESE TERMS OF USE ALSO REQUIRE THAT ALL DISPUTES BE RESOLVED THROUGH MANDATORY, BINDING ARBITRATION AND PROHIBIT CLASS RELIEF. BY USING THE SITE, YOU ARE AGREEING THAT ARBITRATION IS THE EXCLUSIVE MEANS OF RESOLVING DISPUTES WITH WH TO THE EXTENT ALLOWED BY LAW, INSTEAD OF CLASS ACTIONS OR JURY TRIALS.

PRIVACY POLICY 

WH respects the privacy of its users. Please refer to the Privacy Policy (found here: https://www.westherr.com/privacy.htm, which explains how WH collects, uses, and discloses information that pertains to your privacy. When you access or use the Site, you signify your agreement to the Site Privacy Policy.

 ABOUT WEST HERR  AND THE SITE

WH offers visitors and users of the Site a destination to find information on the purchase, lease, service, repair and trade-in of a vehicle.  Depending on your use of the Site, you may be asked to provide, enter or upload information about you and/or a vehicle. 

 RULES FOR USER CONDUCT AND USE OF THE SITE 

You are solely responsible for any information, data, documents, sounds, images or any other content you upload, provide, publish, transmit, display, communicate, link or otherwise make available through or on the Site (“User Content”). You agree that WH in certain circumstances is only acting as a passive conduit for your online distribution and publication of some or all of your User Content. Your permission to use the Site is conditioned upon the Use Restrictions and the Posting and Conduct Restrictions below. You further agree that WH’s use of the User Content is subject to these Terms of Use, as well as WH’s Privacy Policy and any other agreements or consents you may have with WH or other third parties.

 USE RESTRICTIONS

You will only use the Site for your own benefit. You agree that you will not under any circumstances: 

• post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;

• use the Site for any unlawful purpose or for the promotion of illegal activities;

• attempt to or harass, abuse or harm another person or group;

• provide false or inaccurate information or use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of content;

• interfere or attempt to interfere with the proper functioning of the Site;

• make any automated use of the system, or take any action that WH deems to impose or to potentially impose an unreasonable or disproportionately large load on WH's servers or network infrastructure;

• bypass any robot exclusion headers or other measures WH takes to restrict access to the Site or use any software, technology, or device to scrape, spider, or crawl the Site or harvest or manipulate data; 

• use the communication systems provided by or contacts made on the Site for any commercial solicitation purposes; and

• publish or link to malicious content intended to damage or disrupt another user's browser or computer.

POSTING AND CONDUCT RESTRICTIONS. The following rules pertain to User Content. By transmitting and submitting any User Content while using or accessing the Site, you agree, represent and warrant as follows:
 

• You will comply with these Terms of Use;
• You are solely responsible for the activity that occurs while in accessing or using West Herr Curbside Document Upload Services or the Site;
• You own or have the necessary licenses, rights, permissions, and consents to use and authorize WH to use any and all User Content submitted by you;
• Your contributions and any reviews should be unbiased and objective and any reviews should be authentic and You will not post information that is false or inaccurate.
• You will only post accurate documents or alter images in any way in an attempt to mask the true appearance of a document or vehicle photo.
• You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from the rightful owners to specifically submit such content to the Site; and
• You hereby affirm WH has the right to determine whether any of your User Content submissions are appropriate and comply with these Terms of Use.

 WH takes no responsibility and assumes no liability for any User Content that you or any other user or third party post or send over the Site. You understand and agree that any loss or damage that occurs as a result of the use of any User Content that you make available or access through your use of the Site is solely your responsibility. WH is not responsible for any public display or misuse of your User Content.

WH does not and cannot pre-screen or monitor all User Content. However, at WH's discretion, WH or technology that WH employs may monitor and/or record your interactions with the Site.

Though WH strives to enforce its Terms of Use, you may be exposed to content that is inaccurate or objectionable. WH reserves the right, but is not obligated, to limit or deny a user's access to the Site or take other appropriate action if a user violates these Terms of Use or engages in any activity that violates the rights of any person or entity or which WH deems unlawful, offensive, abusive, harmful or malicious. Unauthorized use may result in criminal and/or civil prosecution under federal, state and local law. If you become aware of misuse of the Site, please contact help@westherr.com.

 COPYRIGHTS AND COPYRIGHT AGENTS 

WH responds to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this Site infringe your copyright, you may request removal of those materials (or access to them) from the Site by submitting written notification to our copyright agent designated below. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:

• Your physical or electronic signature.
• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works.
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
• Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the written notice is accurate.
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated copyright agent to receive DMCA Notices is:

LICENSE GRANT 

By posting or submitting any User Content on the Site, you expressly grant, and you represent and warrant that you have a right to grant, to WH, a royalty-free, sub-licensable, transferable, perpetual, irrevocable, nonexclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Site.

 INTELLECTUAL PROPERTY 

The Site, its entire contents, features, functionality and related domain are owned by WH, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent trade secrets and other intellectual property or proprietary rights laws. You acknowledge and agree that WH and WH's licensors retain ownership of all intellectual property rights of any kind related to the Site, including applicable copyrights, trademarks and other proprietary rights. Other product and company names that are mentioned on the Site may be trademarks of their respective owners. WH reserves all rights that are not expressly granted to you in in these Terms of Use.  These Terms of Use permit you to use the Website for your personal, non-commercial use only.  

 LINKS TO OTHER SITES AND/OR MATERIALS; SOCIAL MEDIA FEATURES

As part of the  Site, WH may provide you with convenient links to third party websites. These links are provided as a courtesy. WH has no control over linked websites or the promotions, materials, information, goods or services available on these third party websites. WH is not responsible for and does not endorse or warrant any materials, information, goods or services available through any linked websites or any privacy or other practices of such websites. WH may terminate any link at any time.

 This Site may provide certain social media features that enable you to:

• Link from your own or certain third-party websites to certain content on this Site.
• Send links to certain content on this Site.
• Cause limited portions of content on this Site to be displayed or appear to be displayed on your own or certain third-party websites.

You may use these features solely as they are provided by WH and solely with respect to the content they are displayed with. Subject to the foregoing, you must not:

• Establish a link from any website that is not owned by you.
• Cause the Site or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
• Otherwise take any action with respect to the materials on this Site that is inconsistent with any other provision of these Terms of Use.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion. 

ACCURACY OF INFORMATION 

WH does not warrant that descriptions its products and services, or information are current, complete or free from error. Instead third party suppliers of information (e.g. certification programs) are solely responsible for keeping information provided for use on the Site or about their businesses and locations up to date and accurate. Moreover, to the extent that the Site displays content licensed from third party sites, only those third party content suppliers are responsible for the accuracy or completeness of the content they make available to the Site.   Any reliance you place on content and information on the Site is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.  

 EMAIL MAY NOT BE USED TO PROVIDE NOTICE TO SITE 

Communications made through any Site e-mail and messaging system will not constitute legal notice to WH or any of its officers, employees, agents or representatives in any situation where notice to WH is required by contract or any law or regulation.

 USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM 

For contractual purposes, you (a) consent to receive communications from WH in any electronic form; and (b) agree that all Terms of Use, agreements, notices, disclosures, and other communications that WH provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your non-waivable rights.

 DISCLAIMER; LIMITATION OF DAMAGES; RELEASE 

You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WH WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT.

THE SITE AND ALL FUNCTIOALITY THEREIN OR THEREON ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WH MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF SITEWILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SITE.

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WH, ITS PARENT, SUBSIDIARIES, AFFILIATES AND JOINT VENTURES, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR INFORMATION OR CONTENT; (B) YOUR USE OR INABILITY TO USE THE SITE OR WEST HERR CURBSIDE DOCUMENT UPLOAD SERVICES; (C) SITE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SITE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH WH OR ANY OTHER USER OF THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

If you have a dispute with WH, you release WH and WH's parent, subsidiaries, affiliates and joint ventures, and each of their officers, directors, employees, agents, licensors and partners, 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 to the extent allowed by law.

INDEMNITY 
 

You agree to defend, indemnify and hold harmless WH, its parent, subsidiaries, affiliates and joint ventures, and each of their officers, directors, employees, agents, licensors and partners, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, reasonable attorney's fees) arising from: (a) your use of and access to the Site; (b) your violation of any term of these Terms of Use; (c) your violation of any third party right, including, without limitation, any copyright, property or privacy right; or (d) any claim that any content submitted by you causes damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your use of the Site.

ENTIRE AGREEMENT; MODIFICATION OF TERMS OF USE

These Terms of Use, together with the Privacy Policy and any other legal notices published by WH on the Site Terms of Use, shall constitute the entire agreement between you and WH regarding the Site. WH can amend these Terms of Use at any time and will update these Terms of Use in the event of any such amendments. It is your sole responsibility to check the Site from time to time to view any such changes to these Terms of Use. If you continue to use the Site, you signify your agreement to WH's revisions to these Terms of Use. Any changes to these Terms of Use (other than as set forth in this paragraph) or waiver of WH's rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of WH. No purported waiver or modification of these Terms of Use by WH via telephonic or email communications shall be valid.

 GENERAL TERMS; LIMITATION ON CAUSES OF ACTION 

If any portion of these Terms of Use is held invalid or unenforceable, that portion will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of WH to enforce any provision of these Terms of Use will not be considered a waiver of WH's right to enforce such provision. WH's rights under these Terms of Use will survive any termination of these Terms of Use.

You agree that any cause of action related to or arising out of your relationship with WH must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

 DISPUTES 
 

All disputes or claims between you and WH relating in any way to your use of the Site, will be resolved exclusively by binding arbitration to be conducted in Buffalo, New York to the extent allowed by law, rather than in court, except that you may assert your individual claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to WH's legal counsel, Attn: West Herr Legal Counsel, 3552 Southwestern Blvd. Orchard Park, New. The arbitration will be conducted by the American Arbitration Association (AAA) under its Commercial Arbitration rules, including, where applicable, the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. WH will reimburse all filing, administration and arbitrator fees paid by you, if the consumer rules apply to the dispute, for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, WH will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.

Each party agrees that any dispute resolution proceedings will be conducted on an individual basis only and not on a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial. Each party also agrees a party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 ASSIGNMENT 
 

WH may assign or delegate these Terms of Use and/or the Site Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms of Use or the Site Privacy Policy without WH's prior written consent, and any unauthorized assignment and delegation by you is ineffective.

 APPLICABLE LAWS; VENUE 

These Terms of Use and your use of the Site are governed by the federal laws of the United States of America and the laws of the State of New York. Any action related to the Site and not otherwise subject to the arbitration provisions above ,will be filed only in the appropriate state or federal court located within Erie County in the State of New York. By using the Site, you signify your consent to the exclusive jurisdiction of the state and/or federal courts in Erie County in the State of New York.

 SITE CONTACT 

In the event you need to contact the Site, please contact WH by sending an email to help@westherr.com. If you need to contact the dealership regarding a vehicle, please reach out to such dealership directly.