PRODUCT SPECIFIC TERMS
1.1 Initial Term. With regard to each individual service offering identified in the Agreement to which these Product Specific Terms are applicable, the initial term of the Agreement shall be as set forth on the Quotation document for such service offering. In the event no term is identified on the Quotation document with regard to a particular service offering, the initial term of the Agreement with respect to such service offering shall be one calendar month, beginning on the Effective Date.
1.2 Renewal Terms. The term of the Agreement with regard to each service offering to which these Product Specific Terms are applicable shall automatically renew at the end of the then-current term for a renewal term equal in length to the initial term, at Affinitiv’s then-current standard rates for such service offering, unless Customer provides written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term. In the event Customer provides notice of its intent not to renew less than thirty (30) days prior to the expiration of the then-current term, the Agreement will renew as normal for the applicable services, but Customer shall be deemed to have provided timely notice of non-renewal for the subsequent renewal term and the Agreement shall not automatically renew again with respect to such services.
2. Disclaimers and Acknowledgements
2.1 Ownership. Customer acknowledges that this is not a license agreement and these Product Specific Terms do not give Customer any right to use any proprietary software or hardware. Customer obtains no ownership or other rights in any software, hardware, technology, or materials that may be used by Affinitiv to provide services hereunder.
2.2 Customer Data Access. Customer agrees to have Affinitiv access Customer’s systems and sources of data, internal or external, including, where applicable Customer’s DMS, to obtain the data necessary to provide services hereunder. The following additional terms apply with regard to such access:
2.2.1 Customer hereby authorizes Affinitiv to access Customer’s dealer management system and other data management systems (“Systems”) to retrieve data that Affinitiv needs to perform the services.
2.2.2 Customer shall execute such forms and provide such approval and direction to Customer’s third party DMS data provider as that provider may require to authorize and facilitate Affinitiv’s access to Customer’s Systems for the purposes set forth herein.
2.2.3 Affinitiv may access the Systems and retrieve and use the data solely to perform the services and to improve its performance of the services. Affinitiv will comply with all restrictions relating to Systems access and data retrieval and use specified in the Agreement.
2.2.4 Affinitiv shall access the Systems and retrieve data at least at a mutually agreed frequency.
2.2.5 Customer shall not cause any data to be provided or made available to Affinitiv unless Customer has obtained all necessary authorizations and permissions with regard to such data to: (i) provide such data to Affinitiv hereunder; and (ii) authorize Affinitiv to perform the services contemplated hereunder. Customer represents and warrants that Affinitiv may copy, store, process, distribute, display, and use any data provided to Affinitiv by Customer hereunder in connection with the provision of services contemplated hereunder.
2.3 Change of Services. Customer acknowledges and agrees that Affinitiv may change or cancel any individual service offering at any time by providing notice of such change or cancellation to Customer. Such notice shall not alter the term of the Agreement except as to a particular service offering cancelled by such notice, which, for that purpose, shall be deemed a notice of termination for convenience by Affinitiv as to such service.
2.4 Disclaimer. Affinitiv makes no representation regarding reimbursement of or eligibility for co-op funds.
3.1 Provision of Services. Affinitiv shall use commercially reasonable efforts to provide the services identified on the Quotation document in the quantities, of the types, and on the timing set forth therein. Where applicable, Affinitiv shall:
3.1.1 Communicate with consumers on behalf of Customer through the identified channels based on established program specifications;
3.1.2 Provide reporting and statistical information through Affinitiv’s analytics suite at a mutually agreed frequency or, if no frequency is agreed, monthly;
3.2 Analytical Use. Customer acknowledges and agrees that Affinitiv may utilize information related to Affinitiv’s provision of services to Customer for the purposes of statistical analysis or to develop or improve its products or services.
3.3 Compliance. Affinitiv agrees to comply with all Customer instructions regarding compliance with applicable laws, rules, or regulations. Affinitiv will use commercially reasonable efforts to avoid applicable communications with a consumer on Customer’s behalf after receipt of notice from Customer that such consumer has opted out of receiving such communications, or has requested to be added to a “Do Not Call” “Do Not Mail” or “Do Not Email” list as applicable. Affinitiv shall maintain “Do Not Call” “Do Not Mail” or “Do Not Email” lists specific to Customer and shall use commercially reasonable efforts to check against such lists prior to initiating any communication. Affinitiv agrees that it shall never override the FTC’s, any states’ or Customer’s specific Do Not call list in performing the services. Without limiting any of the foregoing, Affinitiv will use commercially reasonable efforts to comply in all respects with all applicable state of federal laws, rules, and regulations including, without limitation CAN-SPAM and Do Not Call.
3.4 Service Specific Terms. The following terms are applicable to particular services when identified on a Quotation document:
3.4.1 When Customer has elected to receive any mail services, the following additional terms apply:
126.96.36.199 In the event Customer terminates direct mail services prior to the printing of a piece, Customer shall still owe the greater of $500 or fifty percent (50%) of the cost of the direct mail.
188.8.131.52 Affinitiv will not be liable for any damages or loss of business if a mailing is delayed or cancelled due to non-payment by Customer.
184.108.40.206 In the event of printer error, where the piece mailed does not correspond to the proof approved, Affinitiv will only be liable for reprinting and mailing the piece as was approved.
220.127.116.11 Customer is solely responsible for the contents of a proof once approved by Customer. In no event will Affinitiv be liable for errors, grammatical, spelling or otherwise, if final proof containing the errors was approved by Customer.
18.104.22.168 Prices are subject to change without notice due to postage increases and Customer shall be responsible to pay any such increases when invoiced pursuant to the Agreement.
3.4.2 When Customer has elected to receive telephonic or text message contact services or other telephony services, the following additional terms apply:
22.214.171.124 Customer hereby authorizes Affinitiv to annually (or more frequently as required by applicable law) register Customer with the FTC Do Not Call Registry and the do not call registry of each applicable state (collectively, “DNC Registration”) so that Customer is authorized to obtain the FTC and each such state’s DNC lists, and Customer agrees to reimburse Affinitiv for all charges imposed by said governmental agencies for said registrations.
126.96.36.199 Customer acknowledges that telephone solicitation is regulated pursuant to federal and state law, and any modifications made by Customer to the Policy which are less restrictive than applicable law may be in violation of such law. Customer agrees to comply with all applicable federal and state laws when using the services, including laws that apply in the state where Customer calls using the services are made, as well as laws that apply in states where Customer calls using the services are received. Customer agrees to take reasonable steps to stay informed as to applicable state and federal laws as it applies to Customer’s use of the services.
188.8.131.52 Customer hereby agrees and acknowledges that Affinitiv, or a third party designated by Affinitiv, may record, review and evaluate digitized telephone calls arising from the services for internal quality assurance or at Customer’s request, and may utilize and publish call traffic statistics without identifying Customer.
3.5 Data Protection. THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA. Affinitiv agrees as follows regarding its obligations with respect to data provided to it by Customer in connection with Affinitiv’s provision of services hereunder:
3.5.1 Affinitiv will not resell the data.
3.5.2 Affinitiv will not reveal the data to any third party, except as an authorized part of providing the services to Customer hereunder.
3.5.3 Affinitiv shall use reasonable administrative, electronic, technical and physical safeguards and procedures in connection with accessing, collecting, processing, storing, using, transmitting, disposing of or otherwise handling the data.
3.5.4 Affinitiv shall store the data on information systems (network, hardware and software) that are reasonably designed to detect, prevent and respond to attacks, intrusions and other systems failures.
3.5.5 Upon request, Affinitiv will return or destroy any data received from Customer that remains in its possession or control.
3.6 Data Aggregation. Customer acknowledges that Affinitiv is in the business of developing and providing proprietary data products and that the services may be enhanced by Affinitiv’s use of data that is aggregated from its various customers, including data that is derived from “Nonpublic Personal Information” (as defined in Title V of the GLB Act) (“NPI”) but no longer constitutes NPI under the GLB Act. Customer hereby consents to Affinitiv’s use (for any purpose) of the data, including any Customer NPI, solely in an aggregated form that does not constitute NPI under the GLB Act and that does not identify Customer as the source of the data.
4. Customer Additional responsibilities
4.1 Non-electronic Data. Customer agrees to provide, in a timely manner and mutually agreed format, any data not available electronically that may be applicable to the delivery of a particular service contracted hereunder, including, without limitation, when applicable Sales, F & I, Parts & Service data.
4.2 Customer Information. Customer agrees to provide immediately any information regarding Customer personnel changes that may affect Affinitiv’s ability to provide the services hereunder. Customer agrees to provide thirty (30) days advance notice of any computer system or infrastructure changes that may affect Affinitiv’s ability to provide the services hereunder.
4.3 Privacy and Consumer Protection Laws. Customer shall be solely responsible for its compliance with all privacy and consumer protection laws relating to this Agreement, including TCPA, Graham-Leach-Bliley, the CAN-SPAM Act, and all other applicable laws similar thereto or otherwise relating to consumer privacy, security, or protection. Customer acknowledges and agrees that Affinitiv will be relying on Customer with regard to compliance with such laws including, without limitation, as the selection of consumers with whom to communicate and the selection of communications targeted to such consumers. Customer shall be solely responsible for any violation of any such laws to the extent Customer authorized or requested Affinitiv to communicate with such consumer in such manner.
4.4 Compliance by Customer.
4.4.1 Customer represents and warrants that it is in compliance with all federal and state laws, rules, and regulations. Customer represents and warrants that all data provided to Affinitiv in connection with the Agreement, meets and satisfies all such laws, rules and regulations, including per the FCC Under 47 C.F.R. § 64.1200 (f)(8). Customer further represents and warrants that it has obtained all necessary consents, including “prior express written consent” (See 47 C.F.R. § 64.1200 (a)(1)-(2)) from each individual whose data will be provided to Affinitiv.
4.4.2 Customer acknowledges and understands that there are strict legal limitations on the sending of pre-recorded or text messages to wireless phone and other wireless devices. Customer certifies that no calls or text messages will be made to a wireless phone or other wireless device in respect of the services, unless Customer has first received advance written consent from each proposed consumer recipient, which consent complies with applicable law.
4.5 Opt Outs. Customer shall promptly inform Affinitiv of any “opt out” by any individual regarding any type of communication, including a request by any individual to be put on a “Do Not Call” “Do Not Mail” or “Do Not Email” list. Customer is solely responsible for compliance with all requirements related to making “opt out” options available to consumers and for informing Affinitiv related to any such “opt out” received.
4.6 Security. Customer shall keep any and all credentials or other means of access to any Affinitiv products or services confidential. Customer shall be solely responsible for the security of such credentials or means of access, and is solely responsible for all information submitted through the services via its assigned credentials.
4.7 Responsibility. Customer further agrees that all marketing and other campaigns designed for use with the services shall be designed solely by Customer, subject to technical support and a help line that may be available from time to time through Affinitiv. Affinitiv may provide templates, model scripts, and other design assistance for Customer’s consideration, but Affinitv makes no representation regarding the propriety of such templates, model scripts or input for any particular situation. Customer remains solely responsible for its selections and choices regarding campaign design, including the script to be used for any calls. Where applicable, Affinitiv will provide each proof to Customer for approval. Customer shall notify Affinitiv of its approval of the proof or of any requested changes as soon as reasonably practicable. Affinitiv will take no action on any proof until and unless approved by Customer and Affinitiv shall have no responsibility or liability regarding delayed performance or failures of performance to the extent resulting from Customer’s failure to approve a proof in a timely manner.
4.8 Communication Policies. Customer agrees to abide by all applicable Affinitiv policies (as such policies may be adopted or amended by Affinitiv from time to time and provided by Affinitiv to Customer via Affinitiv’s website and, upon request, by email) regarding the use of the services to make telephone solicitations or to transmit any electronic mail (e-mail) or text message to consumers (collectively, each a “Message”). Customer shall remain in compliance with the Policies at all times in connection with Customer’s use of all services hereunder. Affinitiv’s policies in this regard include but are not limited to the following:
4.8.1 Customer shall not use the services to transmit any Message that:
184.108.40.206 is obscene, or defamatory or violates any intellectual property rights or any other rights of any third party;
220.127.116.11 facilitates or promotes violent, discriminatory or illegal activity;
18.104.22.168 contains any sexually explicit content or images or other image that may be harmful to minors;
22.214.171.124 promotes any pyramid scheme;
126.96.36.199 is false, misleading, or likely to mislead or deceive (including, without limitation, information relating to the source or the author of the message);
188.8.131.52 contains viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; or
184.108.40.206 violates any state, federal or other laws, including without limitation, the CAN-SPAM Act or any other applicable anti-spam law or law prohibiting the sending of unsolicited text messages.
4.9.1 Customer will not utilize the services to transmit any Message in text form to a wireless phone or wireless device to any consumer unless Customer has obtained such consumer’s express prior written consent to receive such Messages. Customer must also provide all Message recipients with the ability to opt-out of receiving future Messages from Customer as follows:
220.127.116.11 by sending a Message to Customer with “stop” (regarding Text Affinitiv) or “unsubscribe” (regarding Email Affinitiv), in the text; and
18.104.22.168 via the same mechanism as the recipient consents (or opts-in) to receiving Messages from Customer. Customer must include a prominent description of the opt-out mechanism at the same location and time as Customer provides the recipient an opportunity to consent/opt-in. Customer will not send any Messages to any consumers who have chosen to opt-out of receiving Messages from Customer.
4.9 Personal Use. Customer may not rent, disclose, publish, sell, assign, lease, sublicense, market or transfer any content of the services, nor use the services in any manner not expressly authorized by the Agreement.