- License of OneCommand Products and Services.
OneCommand hereby grants to Customer, and Customer hereby accepts from OneCommand a non-transferable, non-exclusive license to access and use, via an exclusive password, the products and services listed on the face of this Agreement and such other Services as are provided to the Customer from time to time subject to the terms and conditions set forth in this Agreement (the “License”). This License is restricted to use by Customer for Customer’s own internal business purposes. It does not extend to any parent, subsidiary, affiliate, separate roof top or any other person or entity. Customer shall have no right to sublicense, distribute or otherwise transfer or permit usage of the Services by any other person except as expressly authorized and contemplated hereunder. Title to the Services and all rights of copyright, patent or other intellectual property therein are and shall at all times remain solely and exclusively with OneCommand. Customer shall keep this License free and clear of all liens, claims and encumbrances. Customer acknowledges (i) the existence of a software license agreement by and between.
- Term and Termination.
The term of this Agreement and the License granted hereunder shall commence on the Effective Date and shall continue for the period set forth on the face of this Agreement, or, if no such period is provided, shall continue for a period of one (1) year (the “Term”). The Term shall automatically renew for one year at the end of each then current term at OneCommand’s then current rates unless Customer provides written notice of termination to OneCommand within Thirty (30) days of the end of the then current term. This Agreement and the License shall also terminate at the option of OneCommand upon breach by Customer of the terms of this Agreement. The termination of this Agreement (for whatever reason) shall not terminate any liability or obligation of Customer hereunder which accrues prior to such termination, including, without limitation, Customer’s obligation to pay any amounts due to OneCommand through the end of the then current Term or liability for loss or damage on account of such breach. Upon termination, Customer shall cease using the Services, as well as all confidential information and other information, documentation and processes of OneCommand. OneCommand may terminate this Agreement for any reason whatsoever, with or without cause, including without limitation use of the Services in violation of this Agreement or otherwise in a manner that could reasonably harm the reputation of the Services or the reputation of OneCommand or any of its officers, managers, directors or owners. Customer may not terminate this Agreement other than cause of gross negligence or fraud on OneCommand’s behalf. If Customer (i) terminates agreement early; or (ii) Customer sells or transfers its assets to or merges with a third party without both (A) the written consent of OneCommand and (B) the successor to Customer’s assets fails to enter into a written agreement with OneCommand to assume Customer’s obligations hereunder, then in the case of either of (i) or (ii), all unpaid balances and the remaining unbilled term of the contract are due and payable effective immediately. If OneCommand terminates this Agreement and the License for reasons other than breach of this Agreement or damage to reputation, OneCommand agrees to refund to Customer remaining license fees received in advance from Customer. Unless agreed otherwise in writing by the parties, the term of any products and services which are included in the OneConnect Platinum package shall be conterminous with the Term of this Agreement.
- Payment of Fees.
If any payment due by Customer is past due by fifteen (15) or more days, and OneCommand has notified Customer, via fax or certified mail, to cure the matter for another ten (10) days from the Fifteenth (15th) day past due, OneCommand may, in addition to any other remedies of OneCommand, “disconnect” Customer from the use of the Services. OneCommand will “reconnect” Customer to the Services upon payment of a $200 reconnection fee and all payments due to date. Any payment due by Customer which has not been received by OneCommand within ten (10) days of its due date may be assessed a $50.00 late payment fee. Payments shall be made to OneCommand at the address provided on the face of this Agreement or such other address as.
OneCommand may provide in writing from time to time. OneCommand reserves the right to pass on to Customer increases in OneCommand’s third party costs and governmental taxes. In addition, OneCommand may at its option, upon thirty (30) days prior written notice to Customer, implement general price increase applicable to the Services.
- OneConnectTM Performance Guarantee.
OneCommand hereby guarantees that OneCommand services will generate revenue of 5X the monthly contracted spend for the first 3 months that dealer would otherwise not realize within 90 days after install as measured by OneCommand ROI Reports and other OneCommand Reporting. In order for this guarantee to apply the Customer agrees to record and utilize the published, in writing, Relationship Management Series of communications as recommended by OneCommand. If the Customer has recorded and utilized the Relationship Management Series of Communications in their entirety during the Evaluation Period and the Customer does not realize the guaranteed results, Customer may, at its option, (a) receive three (3) months of continued use of OneConnectTM at no charge; (b) OneCommand will refund three months of paid subscription fees on applicable program, excluding setup fees paid. Said guarantee shall not be applicable if this Agreement is terminated for any reason prior to the end of the initial 90-day period.
Customer agrees to the following:
A. Management Involvement. Customer’s Principal or Owner, General Manager, and Service Manager will actively and in good faith participate in the implementation and operation of the Program in an attempt to maximize the value of the Program to Customer.
B. Dedicated Personnel. Customer will assign an employee to be primarily responsible for the Program (“Customer Program Manager”). Each Customer Program Manager shall be authorized by Customer to act as a liaison between OneCommand and Customer. Customer may change its Customer Program Manager upon notice to OneCommand
C. Services Free to Consumer. The Program is free of charge to consumers. Customer and its employee/agents are expressly prohibited from representing to any consumer, in any manner, either orally or in writing, the existence or implication of any charge or fee to be paid by reason of a consumer’s use of the Program.
D. Advertising Reimbursement. Customer is solely responsible for determining whether any Program fees paid to OneCommand is subject to reimbursement by any co-op advertising or similar fund offered by Customer’s OEM. OneCommand make no representations or warranties of any kind regarding such reimbursement of or Customer’s eligibility for such funds.
E. Customer Service Standards. Customer shall promptly accept and schedule service appointments for one hundred percent (100%) of consumers responding to a Program Reminder.
- Intellectual Property.
Customer represents and warrants to OneCommand that in all cases where the trademark, copyright or other intellectual property of a third party is used in connection with the Services. Customer has the written consent of said third party (through ownership rights or a valid, enforceable license) to use said intellectual property in the manner and to the extent so used and in the jurisdiction used. Customer further represents and warrants to OneCommand that the use of the intellectual property of any third party as contemplated by this Agreement or the Services will not infringe the intellectual property rights of any third party.
Additional Intellectual Property Issues. Customer shall not itself, or permit any third party to, modify, reverse engineer, reverse compile or disassemble the Services in whole or in part, including without limitation the object or source code underlying the Services, nor shall it use the process which is used with the Services or any variation thereof for any reason whatsoever other than as expressly authorized and contemplated by this Agreement. Customer acknowledges and agrees that all content, products, services, programs and/or technology on OneCommand’s website is the property of OneCommand, and Customer shall not claim any interest in such property except as expressly provided and contemplated under this Agreement. Such information may not be copied, distributed, displayed, adapted, modified or made into derivative works, or otherwise used even if merged with other websites, except as expressly authorized and contemplated by this Agreement. Any use of content, code or process without the express written permission of OneCommand or the rightful owner is strictly prohibited. OneCommand reserves any rights not expressly licensed herein. Customer agrees not to alter or remove any copyright or trademark notice or proprietary legend contained in or on any content. Any trademark, logos and service marks displayed on OneCommand’s website, whether registered or unregistered are property of their respective owners. Customer agrees that it will not directly or indirectly infringe on any copyrights or patents or other intellectual property either approved or pending for OneCommand, including without limitation, any attempts to develop a similar or like system that would be competitive with the Services.
Customer Equipment/ISP. This License is solely for the use and availability of the Services. Any and all additional items of equipment exclusive of the Services which customer may need to access to use this program are not intended to be the subject of this Agreement. Customer acknowledges that access to the Services is via an internet service provider (“ISP”) static line and that Customer is responsible for the installation and cost of said line at its place of business. Customer shall select an ISP of its choice. Customer acknowledges that OneCommand shall have no responsibility for the quality of service extended to Customer by its selected ISP. OneCommand recommends that Customer acquire two ISPs as an added backup to ensure that Customer’s access to the Services remains uninterrupted.
It is the responsibility of Customer to make all decisions related to the appropriateness of data supplied for use through the Services (whether by telephone, e-mail or text messaging), as well as Customer’s responsibility to maintain and enforce Customer’s Telephone Solicitation Policy and the use of the Services in compliance with all applicable laws. Customer expressly assumes the risk of any error or omission in connection with the information used or transmitted pursuant to this Agreement and the calls made or Messages sent by or on behalf of Customer. Customer (i) shall follow the terms of the Telephone Solicitation Policy in the form recommended by OneCommand, (ii) use only scripts exactly as approved in writing by OneCommand and (iii) otherwise comply with the terms of this Agreement and follow all applicable federal, state and other laws. Customer shall indemnify, defend and hold harmless OneCommand, its managers, officers, directors, employees and owners from and against any and all losses, damages, liability, claims, costs (including reasonable attorneys’ fees and court costs), judgments and other expenses relating to or arising out of, or on account of, any breach of this agreement or the terms of the License or any allegations, incidents or claims related to the use of the Services. The indemnification obligation described above shall survive termination of this Agreement for the applicable statute of limitations period.
- Warranty and Liability Exclusions.
Use of the Services is at Customer’s sole risk. OneCommand does not warrant that the Services will be uninterrupted or error free. OneCommand does not warrant internet security. OneCommand makes no other warranty, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or information security in relation to the use of the Services or any related services. Customer acknowledges that certain products are provided through software or services of third parties, and ONECOMMAND PROVIDES NO SEPARATE WARRANTIES FOR THIRD PARTY PRODUCTS AND SERVICES, BUT ONECOMMAND AGREES TO ASSIGN ALL SUCH WARRANTIES TO CUSTOMER TO THE EXTENT ASSIGNABLE. With respect to Mail programs, OneCommand does not guarantee any minimum number of service department customer visits. In no event shall OneCommand or its officers, managers, directors, employees or owners be liable for damages, claim or loss of customer or any other person arising out of the ownership, operation, use or otherwise of the Services, including without limitation compensatory, incidental, indirect, special, consequential or exemplary damages, loss of profits, loss of sales or business, loss of goodwill or damages resulting from lost data or inability to use data, or damages resulting from use of the Services by Customer and/or any person in violation of applicable law, irrespective of whether OneCommand has been informed of, knew of or should have known of the likelihood of such damages. This limitation applies to all causes of action whatsoever arising out of or in any way related to or connected with this agreement, whether arising from negligence, breach of contract, breach of warranty, strict liability, misrepresentation, or other torts. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN ONECOMMAND AND CUSTOMER, ONECOMMAND’S MAXIMUM LIABILITY TO CUSTOMER WITH RESPECT TO THIS AGREEMENT AND THE SERVICES SHALL BE EQUAL TO THE LESSER OF THE AGGREGATE FEES PAID UNDER THIS AGREEMENT BY CUSTOMER AND RECEIVED BY ONECOMMAND DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE IN WHICH THE FACTS UNDERLYING THE CLAIM FOR INDEMNIFICATION OCCURRED AND$50,000. CUSTOMER WILL NOT USE THE SERVICES TO SEND ANY ELECTRONIC MAIL, VOICE MESSAGES OR TEXT TO WIRELESS DEVICES TO ANY INDIVIDUAL UNLESS CUSTOMER HAS OBTAINED SUCH INDIVIDUALS “OPT-IN” CONSENT TO RECEIVE SUCH MESSAGES.
- No Assignment.
Customer may not assign this Agreement or any of Customer’s rights or obligations hereunder without the prior written consent of OneCommand which may be exercised in the sole discretion of OneCommand. OneCommand may assign this Agreement for any reason, in its sole discretion, including statutory assignments such as merger, and OneCommand’s rights and/or obligations hereunder, including without limitation assignment of amounts due by Customer to a financial institution, factor or leasing company of OneCommand’s choice. If Customer sells or transfers its assets to or merges with a third party without both (A) the written consent of OneCommand and (B) the successor to Customer’s assets fails to enter into a written agreement with OneCommand to assume Customer’s obligations hereunder, then all unpaid balances and the remaining unbilled term of the contract are due and payable effective immediately.
- Governing Law, Jurisdiction and Venue.
This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio and the United States but without regard to conflicts of law principles thereof. Jurisdiction and venue for any dispute between the parties arising under or involving the terms of this Agreement shall be exclusively in the United States District Court for the Southern District of Ohio or courts located in Hamilton County, Ohio, and the judgment of said courts on any matter may be entered in any court having jurisdiction over a party to this Agreement.
In the event any provision of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected thereby and shall continue to be valid and enforceable and if, for any reason, any applicable authority finds that any provision of this Agreement is invalid, illegal or unenforceable as written, but by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. If it is determined that the Services cannot be used for one or more applications by Customer as a result of restrictions set forth in applicable law, Customer agrees to comply with all such restrictions, and such restrictions shall not otherwise impact the terms of this Agreement.
- Status of Parties.
Nothing contained in this Agreement and no action taken by the parties pursuant hereto shall be deemed to constitute the parties as a partnership, an association, joint venture or other entity.
Any notice or demand desired or required to be given hereunder shall be in writing and (unless otherwise specified herein) deemed given when personally delivered (including delivery by commercial overnight courier service), or when deposited in the United States mail, postage prepaid, sent certified or registered, and addressed to the address set forth on the signature page hereof, or to such other address or person as hereafter may be designated in writing by the applicable party. Notice may also be provided by facsimile to the facsimile number provided on the signature page hereof with evidence of successful transmission.
- Force Majeure.
Delays or failure of OneCommand in the performance of its obligations hereunder, including but not limited to operation of the Services, shall be excused where such a delay or failure is caused by events beyond the reasonable control of OneCommand, including, but not limited to, accidents, fires, earthquakes, equipment malfunctions, service interruptions (including televisions, telephone, the internet), labor disputes and otherwise.
- Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto (and their respective heirs, successors, legal representative and permitted assigns) any rights, remedies, liabilities or obligations under or by reason of this Agreement.
- Changes to the Program or System.
Changes by OneCommand. OneCommand reserve the right to modify, add, delete, or substitute hardware, software, materials, programs or services, or portions thereof, as part of its continued maintenance of the Program. In its sole discretion, OneCommand may change the amount, structure, method and/or basis of Customer’s fees at any time during the Term which shall be effective upon thirty (30) days written notice to Customer and shall not require an affirmative response or any further action by the parties; provided, however, that any postal rate changes will be effective immediately. During each Term, any customers who are not part of the “active” database will be placed into a pending activation file until a customer is removed from the Program or Customer increases its monthly spend to accommodate such customers on the Program. Customer agrees to install and use only the most current version of the System provided to Customer by OneCommand including any of the modifications provided by OneCommand, and shall not use old versions of the System.
Modification of Services. Customer acknowledges that the services may be altered, modified or updated from time to time throughout the Term of his Agreement to reflect OneCommand’s then current Service offering.
- Entire Agreement.