PRODUCT SPECIFIC TERMS
1. Term and Termination
1.1 Initial Term. With regard to each individual Software Offering (defined herein) 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 Software Offering. In the event no term is identified on the Quotation document with regard to a particular Software Offering, the initial term of the Agreement with respect to such Software Offering shall be one calendar year, beginning on the Effective Date.
1.2 Renewal Terms. The term of the Agreement with regard to each Software 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 offering, unless Customer provides written notice of its intent not to renew at least sixty (60) days prior to the expiration of the then-current term. Collectively, the Initial Term and all Renewal terms shall be the “Term” of the Agreement with respect to the applicable Software Offering.
2. Third Party Software
2.1 Definition. “Third Party Software” means computer software programs or other products or services providing application functionality, proprietary to third parties which are embedded in, accessed through, or designed to be used in conjunction or association with a Software Offering.
2.2 Third Party Software Terms. Where Customer elects to obtain access to Third Party Software in connection with any Software Offering hereunder, such Third Party Software will be identified on the applicable Quotation document and will be made available to Customer by Affinitiv in connection with Affinitiv’s product and service offerings hereunder. All Third Party Software is made available to Customer solely pursuant to the terms and conditions provided by the applicable third party with respect to such Third Party Software. Affinitiv makes no representations or warranties of any kind with respect to any Third Party Software and Customer agrees that Affinitiv shall have no responsibility, liability, or obligation with respect to the Third Party Software except solely to make the applicable Third Party Software available to Customer as set forth herein. Customer should refer to the terms and conditions applicable to each Third Party Software before using it. Any warranty regarding Third Party Software is solely as made by the applicable third party to which the Third Party Software is proprietary.
3.1 License Grant. Affinitiv hereby grants to Customer a personal, non-exclusive, non-transferrable, limited license during the applicable Term to use each Software Offering identified in the Agreement for Customer’s internal business purposes in accordance with and subject to the terms of the Agreement. For purposes of the Agreement, each Software Offering includes the identified Software Offering in object code form or otherwise as made accessible to Customer for us, together with the written user and technical documentation for such Software Offering made available to Customer by Affinitiv, and all updates, enhancements, patches, new versions, and new releases of any of the same.
3.2 Ownership. Affinitiv expressly reserves all rights in the Software Offerings not expressly granted to Customer hereunder. The License Grant set forth above does not grant or transfer any ownership rights in any Software Offering. No rights whatsoever in or to any source code are granted by this Agreement.
3.3 Restrictions. The Software Offering is for use solely by Customer. Customer shall not decompile, reverse engineer, disassemble, transfer, assign, distribute, resell, sublicense, copy, rent, or create any derivative work from all or any part of any Software Offering. Customer shall not make all or any part of any Software Offering available to any third party except as expressly contemplated hereunder in the normal course of Customer’s internal use of the Software Offering. Customer shall not circumvent or disable any security or other technological features or measures associated with any Software Offering. Customer shall not use its access to any Software Offering hereunder to create or develop, or assist another in creating or developing, a product or service that would compete with the Software Offering. Customer shall use the Software Offering only in compliance with all applicable laws and regulations and in a manner that does not infringe upon the rights of any third party.
3.4 Right to Suspend. Affinitiv may suspend Customer’s right to use any Software Offering in the event Customer is in breach of the Agreement and fails to cure such breach within ten (10) days of notice thereof, or immediately in the event Affinitiv reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of such Software Offering or to prevent an ongoing violation of any applicable law, rule, or regulation. Affinitiv will use commercially reasonable efforts to notify Customer at least 24 hours prior to any such suspension and will only suspend the Software Offering to the extent necessary to prevent such unauthorized use or violation.
3.5 Timing. Affinitiv shall not be responsible for any delay by Customer in implementing any Software Offering, and no such delay shall impact or alter the fees due under the Agreement with respect to such Software Offering. All fees set forth on the quotation shall become due as set forth therein.
4. Data Access Terms
4.1 Access. THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA. Customer agrees to have Affinitiv access Customer’s systems or systems maintained on Customer’s behalf for the storage of data related to Customer and its customers, including, where applicable Customer’s dealer management system (collectively, Customer’s “DMS”), to obtain the data necessary to provide services hereunder. Customer hereby authorizes Affinitiv to access Customer’s DMS to retrieve data to perform services and provide Software Offering functionality hereunder. Customer shall execute such forms and provide such approval and direction to Customer’s third party data provider as that provider may require to authorize and facilitate Affinitiv’s access to Customer’s DMS for the purposes set forth herein.
4.2 Purpose. Affinitiv may access Customer’s DMS and retrieve and use data solely to perform services for Customer, to integrate with or facilitate the functionality of the Software Offerings, and to improve its Software Offerings. Affinitiv will not use data accessed from Customer’s DMS for any other purpose except as expressly authorized herein or by Customer in writing. Affinitiv will comply with all restrictions relating to DMS access and data retrieval and use specified in the Agreement.
4.3 Restriction. 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 process such data in connection with undertaking the activities contemplated hereunder. Customer represents and warrants that Affinitiv may copy, store, process, distribute, display, and use any data provided or made available to Affinitiv by Customer hereunder for the purposes and in connection with the activities contemplated hereunder.
4.4 DMS Changes. The parties acknowledge that in the event of changes by a DMS provider, a Software Offering may lose integration with a particular DMS. In the event the Software Offering does not maintain integration with Customer’s DMS, Affinitiv shall have thirty (30) days to regain integration with the applicable DMS. In the event Affinitiv does not regain integration between the Software Offering and Customer’s DMS within such thirty (30) day period, Customer hall have the option to terminate the Agreement with regard to the applicable Software Offering by providing notice to Affinitiv of its intent to so terminate. Such termination shall be effective as of the date of Customer’s notice. Affinitiv shall have no further liability or obligation to Customer regarding such Software Offering following or as a result of such termination.
4.5 DMS Costs. Customer acknowledges and agrees that all DMS costs are passed through directly to Customer. Any DMS cost listed in the Agreement is due upon activation, regardless when Customer actually begins using the integration. In the event of any increase in costs charged by any applicable DMS provider, Affinitiv shall pass such cost increases through to Customer and Customer agrees to be responsible for such costs.
4.6 Non-Interfaced DMS. Customer acknowledges and agrees that in the event Customer uses or switches to a DMS with which Affinitiv does not maintain an active interface, that may render features of certain Software Offerings inoperable and may result in additional costs if full interface is desired.
5. Customer Additional Responsibilities
5.1 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, receiving and tracking any opt out from any consumer and ensuring that Customer has all necessary permission to disclose information to Affinitiv and authorize Affinitiv to process data as required and contemplated hereunder.
5.2 Customer represents and warrants that it is in compliance with all federal and state laws, rules, and regulations and shall remain so throughout the Term. 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.
6.1 Measures. Affinitiv will use commercially reasonable efforts to safeguard the privacy and security of all data provided or made available to Affinitiv hereunder, including adopting and maintaining appropriate administrative, physical, and technical safeguards designed to prevent the destruction, loss, or unauthorized access or alteration of the data.
6.2 Compliance. Affinitiv will comply with all Customer instructions regarding the treatment or handling of Customer data, including instructions related to compliance with applicable laws, rules, or regulations. Affinitiv will comply with all applicable laws, rules, and regulations relating to the privacy and security of Customer’s data as possessed or processed by Affinitiv hereunder.
7. Offering Specific Terms
7.1 Connectiv Service Platform Terms. The following additional terms are applicable to the Connectiv Service Platform Software Offering:
7.1.1 The “Software Offering for purposes of the Connectiv Service Platform is Affinitiv’s proprietary Service Lane solution, which may include the Write component, which may also be referred to as “Wireless Service Adviser” or “WSA”, and the Inspect component, which may also be referred to as “Tech Check”, and which may be made available with Third Party Software components such as Emenus or Connect. Connectiv Service also includes the “Hardware” as defined below.
7.1.2 For purposes of Connectiv Service, “Hardware” means all hardware devices and related products and materials identified on the quotation document and either purchased or leased in connection with this Software Offering pursuant to the Agreement.
18.104.22.168 Affinitiv warrants that the Hardware, at the time provided to Customer hereunder, will be in proper working order consistent with all warranties provided by the Hardware manufacturer. In the event any Hardware does not conform to this warranty, Affinitiv will serve as an intermediary between Customer and the applicable Hardware manufacturer to assist Customer in addressing the nonconformity in accordance with the Hardware manufacturer’s warranty on the Hardware. The foregoing shall be Affinitiv’s sole obligation and Customer’s sole and exclusive remedy with respect to Affinitiv in the case of any breach or failure of the warranty set forth in this Subsection 22.214.171.124.
126.96.36.199 In the event Customer utilizes a financial intermediary (e.g., a leasing company), Affinitiv agrees to accept any payment for Hardware due hereunder from said financial intermediary as though said payment was from Customer. In all other regards this Agreement is neither contingent upon nor modified by any arrangement between Customer and the financial intermediary. Customer shall be solely responsible for the terms of any such arrangement or agreement with its financial intermediary and Customer remains at all times responsible for all of Customer’s obligations hereunder.
7.1.3 In addition to the termination rights set forth in the Master Terms, Customer may terminate the Agreement with regard to Connectiv Service by providing sixty (60) day advance written notice of such termination and paying an early termination charge of ten thousand dollars ($10,000) in addition to paying all charges that accrue up through the date of termination. Customer shall remain responsible for any non-terminable Hardware lease terms above and beyond the early termination charge.
7.1.4 This Connectiv Service shall be used solely on the Hardware. The license granted herein does not include any right to use Connectiv Service on any other hardware or to copy or otherwise extract the software components of Connectiv Service or any portion thereof from the Hardware.
7.1.5 Connectiv Service shall be used solely in connection with the automobile OEM brand(s) identified in the Agreement. Any addition or substitution of an automobile OEM brand will require a separate license and may incur an additional charge as shall be specified by Affinitiv upon request.
7.1.6 In connection with implementing Connectiv Service, Affinitiv agrees to: (1) deliver or cause to be delivered the Hardware and all software components of Connectiv Service to Customer’s site set forth in the Agreement (the “System Site”); (2) cooperate with Customer in any installation or modification of computer or telecom network infrastructure that Customer may undertake to facilitate its use of Connectiv Service; (3) test and verify the proper operation of Connectiv Service after implementation is complete; and (4) promptly train appropriate Customer dealership personnel in the proper use of Connectiv Service in accordance with Affinitiv’s then-current training materials and programs.
7.1.7 Customer Additional Responsibilities.
188.8.131.52 Customer represents and warrants that the information provided to Affinitiv regarding the scope and intended implementation and use of Connectiv Service is true and correct and Affinitiv may rely thereon, and that no changes to the System Site are planned or in progress that, once complete, would materially change such information. Customer acknowledges that in the event any such information proves inaccurate or changes prior to or during implementation, that may result in increased charges associated with Connectiv Service.
184.108.40.206 Customer will cooperate and provide all requested information in connection with the installation and configuration of Connectiv Service.
220.127.116.11 Customer will prepare its systems, infrastructure and personnel consistent with any prerequisites or other directions provided by Affinitiv in advance of the implementation of Connectiv Service to facilitate such implementation.
18.104.22.168 Customer shall implement and maintain appropriate administrative, physical, and technical safeguards, including, without limitation WLAN, LAN, and WAN security to protect Customer’s infrastructure in connection with which Connectiv Service will implemented against viruses, unauthorized access, or other intrusion or corruption.
22.214.171.124 Customer shall provide sufficient DMS ports and logins as necessary for optimal performance of Connective Service. Customer acknowledges that the performance of Connectiv Service is dependent upon DMS-provided data and the speed of DMS operation and data delivery.
126.96.36.199 Customer shall provide clearance through any Internet firewall or other Internet security means for purposes of granting Affinitiv a secure and persistent web-based connection to the Connectiv Service Gateway server for purposes of providing service and support related to Connectiv Service.
188.8.131.52 Customer shall accept delivery and safeguard all Connectiv Service components when delivered to the System Site.
184.108.40.206 Customer shall provide sufficient, environmentally appropriate, safe and secured space at the System Site, for the installation and maintenance of all Hardware and all related connections.
220.127.116.11 Customer shall allow and assist representatives of Affinitiv to complete installation of Connectiv Service components necessary for the full and proper function of Connectiv Service, including access to the System Site’s dealership LAN, DMS, and private branch exchange, and any other systems integral to Connectiv Service operation, as reasonably requested by Affinitiv.
18.104.22.168 Customer is responsible for its compliance with the terms and conditions of any DMS interface license agreement, as prescribed by Customer’s DMS provider throughout all times of intended operation of Connectiv Service.
7.1.8 Affinitiv shall provide maintenance and support services associated with Connectiv Service as set forth below, which maintenance and support services are provided in lieu of all warranties with regard to Connectiv Service. Participation in and receipt of such maintenance and support services are Customer’s sole and exclusive remedy, and Affinitiv’s sole obligation, with regard to any errors or other problems with the operation or performance of Connectiv Service.
22.214.171.124 Affinitiv shall provide Customer with unlimited access to Affinitiv customer support via toll-free voice line at (877) 606-6588 or via email at [email protected], which operates during the hours of 7:00 A.M. EST to 8:30 P.M. EST Monday thru Friday and 7:00 A.M. EST to 2:30 P.M. EST Saturday, except on Sundays and national holidays.
126.96.36.199 Affinitiv shall monitor Connectiv Service and alert Customer to any known or impending problems.
188.8.131.52 Upon notice from Customer of any failure of Connectiv Service to perform substantially in accordance with its documentation, Affinitiv shall, if Affinitiv is able to reproduce the failure and confirm that such failure results from a program error in Connectiv Service, use commercially reasonable efforts to provide a fix, repair, workaround, new version, or replacement software component to remedy the failure at no addition cost to Customer.
184.108.40.206 In the event a failure as set forth in Section 220.127.116.11, above, is due to defective or malfunctioning Hardware, and in the event such Hardware was purchased from Affinitiv, Affinitiv shall maintain all Hardware in good working order through either repair or replacement upon notice from Customer.
18.104.22.168.1 Affinitiv shall provide a loaner tablet computer, based on availability, upon request of Customer when a tablet computer has been sent to Customer, or its designee, for repairs. Such loaner tablet computer will be shipped to Customer via UPS 2nd Day Delivery at dealerships expense. Overnight shipping is available for an additional fee per shipment (Price will vary based on current shipping rates).
22.214.171.124.2 Affinitiv shall repair or return unrepairable tablet computers to the Hardware manufacturer when such devices are shipped to Affinitiv, or its designee, according to the instructions given to Customer by Affinitiv customer support.
126.96.36.199.3 Each PC tablet that is part of the Hardware comes with a minimum manufacturer warranty, as well as an option to purchase an extended warranty, at Customer’s sole discretion and cost. Affinitiv strongly recommends that the Customer purchase the extended warranty. The warranty terms shall be pursuant to the policy coverage provided to Customer at the time of the Agreement is executed.
188.8.131.52.4 In the event a tablet computer is supplied to Customer to replace a tablet computer that was accidentally damaged-beyond-repair, Customer shall be responsible for paying a $200 deductible payment to Affinitiv per incident/replacement. Customer may also purchase of a new extended warranty following each $200 deductible per tablet computer. Affinitiv strongly recommends that the Customer purchase a new warranty with accidental damage coverage for each new/replacement tablet.
184.108.40.206.5 Tablet computers that are not covered by an original warranty, extended service contract and/or any other insurance coverage’s will be assessed a minimum $50 diagnostic/repair fee. In the event additional work is required to repair a tablet computer that is not covered, Affinitiv shall not perform such work without Customer’s prior written direction which thereafter shall be billed on a time and material basis as set forth in Section 220.127.116.11, below.
7.1.9 The following limitations apply to the maintenance and support services for Connectiv Service hereunder:
18.104.22.168 The maintenance and support services shall not include any of the following: (a) electrical or cabling work external to any Hardware; (b) furnishing of supplies or accessories; (c) painting or refinishing Hardware or furnishing the material therefore; (d) making specification changes; or (e) adding, removing, servicing, or maintaining accessories, attachments, or other devices not furnished by Affinitiv.
22.214.171.124 The following services are not included in Affinitiv’s maintenance and support services and will be furnished on a time and materials basis at Affinitiv’s then-current rates when request by Customer or required as a result of Customer’s activities in connection with Connectiv Service: (a) repairs or replacements necessitated by abusive behavior, misuse, or neglect, subject to each piece of equipment manufacturer warranty; (b) installation and/or testing of any software program(s) approved in writing by Affinitiv for installation in connection with Connectiv Service but not provided by Affinitiv; (c) repairs necessitated by the modification of Connectiv Service software or Hardware by any person other than Affinitiv; (d) relocation of any Hardware or related services; (e) supplying replacement components for any Hardware or other components that are lost or otherwise missing; (f) services required by changes to Customer’s DMS provider or material upgrades or modifications to Customer’s DMS; (g) services required by changes to Customer’s ISP or communication hardware or infrastructure; (h) replacement or services related to or resulting from Hardware batteries that are older than 90 days from the date of purchase of such Hardware; (i) services related to any stylus pen that activates a screen cursor when in proximity to a tablet computer screen; or (j) LAN, WAN, or WLAN component replacement, configuration or repairs. Charges for any such services will be billed to Customer on a monthly basis. Customer agrees to pay all such charges properly invoiced.
7.1.10 In order to receive the maintenance and support services from Affinitiv, Customer remain in compliance with the following throughout the applicable Term.
126.96.36.199 Customer shall only utilize the Affinitiv customer support number at (877) 606-6588 or email at [email protected] for reporting errors in using Connectiv Service and shall follow the instructions rendered by Affinitiv support personnel.
188.8.131.52 Customer shall use Connectiv Service only through qualified personnel, only for its intended purpose and only as permitted herein.
184.108.40.206 Customer shall allow Affinitiv personnel or their designees access to all Connectiv Service Hardware during normal business hours for purposes of installing, connecting, upgrading, testing, repairing or replacing such components as set forth herein.
220.127.116.11 Customer shall notify Affinitiv of any changes that affect, or will affect, Connectiv Service operation or outputs, including, but not limited to: (a) DMS supplier, configuration, hardware or software-version upgrade; (b) Hardware relocation; (c) Operational Codes (OpCodes), labor rates or parts associated therewith & price changes; (d) Internet Service Provider; (e) Firewall security settings; and (f) Changes in service advisor personnel.
18.104.22.168 Customer shall provide and maintain, at Customer’s sole expense, throughout the times of intended operation: (a) proper software licenses with Customer’s DMS provider to allow Customer personnel to read data from, and write data to, the DMS from a PC on the Customer’s DMS-resident LAN; and (b) sufficient working telephone lines where necessary for utilization of Connectiv Service features and functionality.
7.2 Scheduler Platform Terms. The following additional terms are applicable to the Scheduler Software Offering:
7.2.1 The “Software Offering” for purposes of the Scheduler platform is Affinitiv’s proprietary web-based service appointment scheduling application and related functionality which may be referred to as “Scheduler” “Time Highway” or “Schedule” and may be made available with Third Party Software components such as Emenus.
7.2.2 Scheduler is provided via access to a Customer-specific World Wide Web Uniform Resource Locator (“URL”) which will be provided to Customer upon execution of the Agreement. Affinitiv is responsible for hosting the web application to make it available on the public Internet at the identified URL. Customer is responsible for all necessary hardware, software, and communication links to access the URL to make use of the application.
7.2.3 Training related to Scheduler is provided via Affinitiv’s published Scheduler training materials and the on-screen Help file associated with Scheduler.
7.2.4 Scheduler works with most generally recognized and industry standard Internet browsers, however Affinitiv makes no warranty that Scheduler will work with all browsers. Customer should check the most recent documentation to determine compatibility.
7.2.5 Affinitiv warrants that Scheduler will be available at the identified URL during the Term and perform substantially in accordance with its current documentation when accessed by a properly functioning device configured with all necessary hardware and software in accordance with Scheduler’s documentation. In the event of any failure of Scheduler to satisfy this warranty, Affinitiv shall make commercially reasonable efforts to bring Scheduler into compliance with this warranty. The foregoing shall be Affinitiv’s sole obligation and Customer’s sole and exclusive remedy in the case of any breach or failure of the warranty set forth in this Subsection 7.2.5.
7.3 Connectiv Sales Platform Terms. The following additional terms are applicable to the Connectiv Sales Platform Software Offering:
7.3.1 The “Software Offering” for purposes of the Connectiv Sales Platform is Affinitiv’s proprietary customer relationship management solution, which may be referred to as “CRM” “Connectiv Sales” or “Higher Gear” and which may be made available with Third Party Software components such as First Pencil.
7.3.2 Connectiv Sales desktop requires an up to date Google Chrome web browser, or such other browser as Affinitiv may specify from time to time in the documentation associated with Connectiv Sales. Customer is solely responsible for ensuring that the correct browser is available for proper functionality of Connectiv Sales. Customer is solely responsible for ensuring that any device on which it uses Connectiv Sales is satisfies the minimum requirements set forth in the applicable documentation for use of Connectiv Sales and is properly configured for such use. Customer is solely responsible for ensuring adequate and appropriate communication capabilities and Internet access to facilitate access and use of Connectiv Sales.
7.3.3 Connectiv Sales requires data in a compatible CSV format. Customer is solely responsible for providing data in the correct format for proper functionality of Connectiv Sales.
7.3.4 Affinitiv warrants that Connectiv Sales will perform substantially in accordance with its current documentation when accessed by a properly functioning device configured with all necessary hardware and software in accordance with Connectiv Sales’ documentation. In the event of any failure of Connectiv Sales to satisfy this warranty, Affinitiv shall make commercially reasonable efforts to bring Connectiv Sales into compliance with this warranty. The foregoing shall be Affinitiv’s sole obligation and Customer’s sole and exclusive remedy in the case of any breach or failure of the warranty set forth in this Subsection 7.3.4.