Subaru Care Connect

Terms and Conditions

These Terms and Conditions (the “Terms”) are incorporated by reference into all enrollment agreements and order forms executed by a Retailer for Subaru of America services and products provided by its vendor, Affinitiv, Inc. (“Subaru Care Connect”). Affinitiv is referenced herein as Subaru Care Connect. The Subaru Care Connect services and products to which Retailer subscribes will collectively be referred to as the “Software Offering” and “Service Offering” herein. These Terms, including the terms presented within service and product enrollment agreements and order forms, any schedule or addenda thereto, and all associated terms of use within the Software and Service Offerings, will collectively be the entire agreement (the “Agreement”) by and between Affinitiv and Retailer (the “Parties”).

1. Software and Service Offerings

1.1 Access and Use. Subject to and conditioned on (i) Retailer’s compliance with the terms and conditions of the Agreement, and (ii) Retailer’s employees, consultants, contractors, and agents who are authorized by Retailer to access and use the Software and Service Offerings under the rights granted to Retailer pursuant to this Agreement (“Authorized Users”) compliance with the terms and conditions of this Agreement, Subaru Care Connect hereby grants Retailer a non-exclusive, non-transferable, limited license to access the Software Offerings and right to use the Service Offerings during the Term, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement. Such use is limited to Retailer’s internal use. Retailer will not share or provide access usernames or passwords to any unauthorized third-party and will notify Subaru Care Connect without delay of any breach of security. Retailer is solely responsible for any negligent or reckless actions of its Authorized Users who are granted access to the Software and Service Offerings.

1.2 Ownership. Subaru Care Connect expressly reserves all rights in the Software and Service Offerings not expressly granted to Retailer hereunder. With respect to the Software Offerings, 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.

1.3 Restrictions. The Software and Service Offerings are for use solely by Retailer and its Authorized Users. Retailer 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 or Service Offering. Retailer shall not make all or any part of any Software or Service Offering available to any third party except as expressly contemplated hereunder in the normal course of Retailer’s internal use of the Software or Service Offering. Retailer shall not circumvent or disable any security or other technological features, or measures associated with any Software or Service Offering. Retailer shall not use its access to any Software or Service Offering hereunder to create or develop, or assist another in creating or developing, a product or service that would compete with the Software or Service Offering. Retailer shall use the Software and Service Offerings only in compliance with all applicable laws and regulations and in a manner that does not infringe upon the rights of any third-party, including without limitation the Gramm-Leach-Bliley Act and its implementing regulations (“GLBA”), the laws of any state of the United States, the Personal Information Protections and Electronic Documents Act of Canada (“PIPEDA”) and the laws of any province of Canada as applicable.

1.4 Right to Suspend. Subaru Care Connect may suspend Retailer’s right to use any Software or Service Offering in the event Retailer is in breach of the Agreement and fails to cure such breach within ten (10) days of notice thereof, or immediately in the event Subaru Care Connect reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of such Software or Service Offering or to prevent an ongoing violation of any applicable law, rule, or regulation. Subaru Care Connect will use commercially reasonable efforts to notify Retailer at least 24 hours prior to any such suspension and will only suspend the Software or Service Offering to the extent necessary to prevent such unauthorized use or violation.

1.5 Implementation Timing. Subaru Care Connect shall not be responsible for any delay by Retailer in implementing any Software or Service Offering, and no such delay shall impact or alter the fees due under the Agreement with respect to such Software or Service Offering. All fees set forth on the enrollment agreement or order form shall become due as set forth therein.

1.6 Change of Services. Retailer acknowledges and agrees that Subaru Care Connect may change or cancel any individual Software or Service Offering at any time by providing notice of such change or cancellation to Retailer. Such notice shall not alter the Term of the Agreement except as to a particular Software or Service Offering cancelled by such notice, which, for that purpose, shall be deemed a notice of termination for convenience by Subaru Care Connect as to such service.

2. Retailer Responsibilities.

2.1 Representations. Retailer represents and warrants that it is in compliance with all federal and state laws, rules, and regulations and shall remain so throughout the Term. Retailer represents and warrants that all data provided to Subaru Care Connect 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). Retailer 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 Subaru Care Connect to be used in the Software and Service Offerings. RETAILER WILL NOT USE THE SOFTWARE OR SERVICE OFFERINGS TO SEND, OR CONTRACT SUBARU CARE CONNECT TO SEND ON ITS BEHALF, ANY COMMUNICATION OF ANY KIND, INCLUDING, WITHOUT LIMITATION, VOICE MESSAGES OR TEXT, TO ANY INDIVIDUAL OR WIRELESS DEVICE UNLESS RETAILER HAS OBTAINED AN APPLICABLE LEGALLY COMPLIANT “OPT-IN” CONSENT FROM THE APPLICABLE INDIVIDUAL TO RECEIVE SUCH COMMUNICATIONS.

2.2 Opt-Outs. Retailer shall promptly inform Subaru Care Connect 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. Retailer is solely responsible for compliance with all requirements related to making “opt out” options available to consumers and for informing Subaru Care Connect related to any such “opt out” received.

2.3 Non-electronic Data. Retailer will provide, in a timely manner and mutually agreed format, any data not available electronically that may be applicable to the delivery of a particular Software or Service Offering, including, without limitation, when applicable Sales, F & I, Parts & Service data.

2.4 Retailer Information. Retailer will immediately notify Subaru Care Connect of any personnel changes that may affect Subaru Care Connect’s ability to provide the Software or Service Offerings. Retailer will provide Subaru Care Connect with thirty (30) days advance notice of any computer system or infrastructure changes that may affect Subaru Care Connect’s ability to provide any Software or Service Offerings.

2.5 In addition to any responsibilities and obligations of Retailer as set forth elsewhere in the Agreement, and without limiting any of the same, Retailer shall:

2.5.1 Adopt, maintain, and use reasonable and appropriate security measures to maintain the confidentiality of all Confidential Information, protect the secrecy of all access credentials made available to Retailer for use of any Software or Service Offerings under the Agreement, and secure Retailer’s access and use of all Software or Service Offerings under the Agreement against malicious code, unauthorized access, or tampering;

2.5.2 Comply with all applicable laws, rules, and regulations;

2.5.3 Obtain and maintain proper and sufficient permissions and authorizations for the use of all third-party data and intellectual property, including, without limitation, all personal data or information of any individual that will be provided to Subaru Care Connect or used in connection with the Agreement;

2.5.4 Only use Subaru Care Connect’s Software and Service Offerings in a manner that is consistent with the positive reputation of Subaru Care Connect and its Software and Service Offerings in the marketplace and preserves for Subaru Care Connect the goodwill associated with Subaru Care Connect and its Software and Service Offerings;

2.5.5 Not take any action or inaction designed to, that is reasonably likely to, or actually does harm the reputation of Subaru Care Connect or its Software and Service Offerings, or the goodwill associated with any of Subaru Care Connect’s trade names, trademarks, or service marks;

2.5.6 Cooperate with Subaru Care Connect as reasonably requested to facilitate Subaru Care Connect’s performance of its obligations under the Agreement, including providing reasonable access to Retailer’s systems, data, and facilities; and

2.5.7 Make all decisions related to the appropriateness of data supplied to Subaru Care Connect for use in connection with any Software or Service Offering provided to Retailer under this Agreement, and to the appropriateness of the use of such data pursuant to any Software or Service Offering provided to Retailer under this Agreement. For all Software and Service Offerings, Retailer shall be solely responsible for its compliance with all privacy and consumer protection laws relating to this Agreement, including Telephone Consumer Protection Act (“TCPA”), Graham-Leach-Bliley Act, the CAN-SPAM Act, and all other applicable laws similar thereto or otherwise relating to consumer privacy, security, or protection. Retailer acknowledges that with respect to its Canadian consumers, certain functionalities available within Subaru Care Connect’s Software and Service Offerings may be subject to Canada’s Anti-Spam Legislation (“CASL”), and Retailer represents and warrants that it will use all Subaru Care Connect Software and Service Offerings subject to CASL in full compliance with CASL. Retailer acknowledges and agrees that it is solely responsible for its CASL compliance in relation to use of all Subaru Care Connect Software and Service Offerings. Retailer acknowledges and agrees that Subaru Care Connect will be relying on Retailer with regard to compliance with such privacy and consumer protection laws including, without limitation, the selection of consumers with whom to communicate, the selection of communications targeted to such consumers, and receiving and tracking any opt-outs from any end consumer. Retailer will ensure it has all necessary permission to disclose consumer information to Subaru Care Connect and authorize Subaru Care Connect to process Retailer data as required and contemplated hereunder. To the extent Software or Service Offerings transmit telephone calls or SMS messages on Retailer’s behalf, then Retailer will follow the terms of the Telephone Solicitation Policy in the form recommended by Subaru Care Connect, located at http:/www.affinitiv.com/telephone-solicitation-policyRetailer. Retailer shall be solely responsible for any violation of applicable consumer protection laws to the extent Retailer authorized or requested Subaru Care Connect’s Software or Service Offerings to communicate to Retailer’s current, prospective, or former end consumers.

3. Third Party Software

3.1 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 or Service Offering.

3.2 Third-Party Software Terms. All Third-Party Software is made available to Retailer solely pursuant to the terms and conditions provided by the applicable third party with respect to such Third-Party Software. Subaru Care Connect makes no representations or warranties of any kind with respect to any Third-Party Software and Retailer agrees that Subaru Care Connect 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 Retailer. Retailer 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.

4. Data Access Terms

4.1 Access. NOTICE TO NORTH CAROLINA DEALERS: THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA. Retailer agrees to have Subaru Care Connect access Retailer’s systems or systems maintained on Retailer’s behalf for the storage of data related to Retailer and its Retailers, including, where applicable Retailer’s dealer management system (collectively, Retailer’s “DMS”), to obtain the data necessary to provide services hereunder. Retailer hereby authorizes Subaru Care Connect to access Retailer’s DMS to retrieve data, or otherwise receive data from, and transport data to, Retailer’s DMS provider, to perform services and provide Software Offering functionality hereunder. Retailer shall execute such forms and provide such approval and direction to Retailer’s third-party data provider as that provider may require to authorize and facilitate Subaru Care Connect’s access to Retailer’s DMS for the purposes set forth herein.

4.2 Purpose. Subaru Care Connect may access Retailer’s DMS and retrieve and use data solely to perform services for Retailer, to integrate with or facilitate the functionality of the Software and Service Offerings, and to improve its Software and Service Offerings. Subaru Care Connect will not use data accessed from Retailer’s DMS for any other purpose except as expressly authorized herein or by Retailer in writing. Subaru Care Connect will comply with all restrictions relating to DMS access and data retrieval and use specified in the Agreement.

4.3 Restriction. Retailer shall not cause any data to be provided or made available to Subaru Care Connect unless Retailer has obtained all necessary authorizations and permissions with regard to such data to: (i) provide such data to Subaru Care Connect hereunder; and (ii) authorize Subaru Care Connect to process such data in connection with undertaking the activities contemplated hereunder. Retailer represents and warrants that Subaru Care Connect may copy, store, process, distribute, display, and use any data provided or made available to Subaru Care Connect by Retailer hereunder for the purposes and in connection with the activities contemplated hereunder.

4.4 DMS Changes by DMS Provider. The Parties acknowledge that in the event of changes by a DMS provider, a Software or Service Offering may lose integration with a particular DMS. In the event the Software or Service Offering does not maintain integration with Retailer’s DMS, Subaru Care Connect shall have thirty (30) days to regain integration with the applicable DMS. In the event Subaru Care Connect does not regain integration between the Software or Service Offering and Retailer’s DMS within such thirty (30) day period, Retailer shall have the option to terminate the Agreement with regard to the applicable Software or Service Offering by providing notice to Subaru Care Connect of its intent to so terminate. Such termination shall be effective as of the date of Retailer’s notice. Subaru Care Connect shall have no further liability or obligation to Retailer regarding such Software or Service Offering following or as a result of such termination.

4.5 Monthly Data Acquisition fee/DMS Integration Costs. Any integration cost listed in the Agreement is due upon activation, regardless of when Retailer actually begins using the integration. In the event of any increase in integration costs, Retailer agrees to be responsible for such costs. Retailer acknowledges that the Monthly Data Acquisition fee arises from integrating the Software or Service Offerings with Retailer’s DMS and is necessary to Subaru Care Connect’s ability to provide the Software or Service Offerings. Notwithstanding any verbal or written understanding or agreement to the contrary, Retailer acknowledges that Monthly Data Acquisition fees, and associated DMS Transaction Fees (as defined below) may be increased at any time by invoice, regardless of Term duration, and Retailer will pay all Monthly Data Acquisition fees as invoiced. Retailer’s use of Software or Service Offerings on certain DMS types may be subject to additional fees per DMS transaction processed by the Software or Service Offerings (the “DMS Transaction Fee”). Any alterations to the product or package selections of Software or Service Offerings will incur change fees.

4.6 Non-Interfaced DMS. Retailer acknowledges and agrees that in the event Retailer uses or switches to a DMS with which Subaru Care Connect does not maintain an active interface, that may render features of certain Software or Service Offerings inoperable and may result in additional costs if full interface is able to be provided and desired.

4.7 Notice of DMS Change. Retailer must provide Subaru Care Connect with at least thirty (30) day notice prior to changing DMS providers. Retailer acknowledges that failure to provide such notice may result in the Software or Service Offering continuing to operate based off inaccurate DMS data through no fault of Subaru Care Connect’s. Further, Retailer understands and agrees that failure to provide such notice may result in Subaru Care Connect invoicing Retailer additional data integration fees arising from Subaru Care Connect re-establishing integration with Retailer’s new DMS provider.

4.8 Non-CDK and Non-Reynolds and Reynolds DMS Integration. If Retailer maintains a non-CDK or non-Reynolds and Reynolds DMS, then Subaru Care Connect’s integration of the Software Offering to Retailer’s DMS may be via a third party DMS integration provider. By signing the Subaru Care Connect enrollment agreement or order form for Software Offerings, Retailer states that Retailer has the authority to make the request, and Retailer authorizes Subaru Care Connect or its third party DMS data integration provider Superior Integrated Solutions Inc. (“SIS”), to access Retailer’s system for the Software Offerings in the enrollment agreement or order form via modem and/or network to SIS’ computer system for the purpose of doing work on Retailer’s behalf. Retailer agrees that SIS will not be held liable for any system related issues not directly related to the programming request. Information on Retailer’s system is proprietary to Retailer and will not be viewed and/or altered without Retailer’s consent. SIS will have access to Retailer’s system within the specified parameters of this Agreement and all work requested will be Retailer’s sole property and will not be removed and/or altered without Retailer’s consent. SIS will be using the software licensed by Retailer for the sole purpose of this Agreement. Retailer acknowledges and agrees that by executing this Third Party Work Agreement it has read and agrees to the terms and conditions contained in the End User License Agreement, which is located at http://www.superiorintegratedsolutions.com/eula_licensing-agreementnew.pdf. Retailer further acknowledges and agrees that the terms of said End User License Agreement are fully incorporated and included in this Third-Party Work Agreement and are binding on the Parties hereto.

4.9 Data Aggregation and Anonymization. Retailer acknowledges that Subaru Care Connect is in the business of developing and providing proprietary data products and that the Software and Service Offerings may be enhanced for Retailer’s benefit, and in furtherance of the business purpose of this Agreement, by Subaru Care Connect’s use of Retailer data in an aggregate and anonymized manner, including data that is derived from “Nonpublic Personal Information” (as defined in Title V of the Gramm-Leach-Bliley Act, and Cal. Civ. Code § 1798.140 of the California Consumer Privacy Act) (“NPI”), and which no longer constitutes NPI under the GLBA or CCPA after aggregation and deidentification. Further, Retailer data and information related to Retailer’s and its end consumer’s use of the Software and Service Offerings may be aggregated and anonymized for Subaru Care Connect’s use in enhancing the Software and Service Offerings, such as (i) compiling statistical and performance information related to the provision and operation of the Software and Service Offerings, and (ii) to identify effective end consumer engagement strategies (“Resultant Data”). Retailer hereby consents to Subaru Care Connect’s use of Retailer data and Resultant Data as described herein, solely in an aggregated and anonymized form.

4.10 DMS as Third-Party Software Provider. The Software and Service Offerings provided under this Agreement contain portions of program code owned by third party DMS licensors and such Third-Party Software Provider licensors will be entitled to enforce this Agreement as an intended third-party beneficiary and the obligations of the Retailer cannot be modified or terminated without the written consent of such third party DMS licensors. Retailer shall not disclose any passwords or other security information that are related to the DMS processes developed by the DMS company, which include, but are not limited to, software, hardware, specifications, data formats, security codes and other intellectual property that allow for the transfer of data from one or more DMS systems and /or the ability to input data from the Software and Service Offerings into one or more DMS systems. All DMS Licensors disclaim all warranties, including without limitation, any warranties of merchantability or fitness for a particular purpose. In no event will any DMS Licensor be liable for indirect, incidental, consequential, or exemplary damages arising from use, or inability to use Interface(s), even if they knew of the possibility of such damages.

5. Intentionally Omitted
   
   
6. Data Privacy and Security

6.1 Privacy and Safeguarding of Retailer’s Data. Subaru Care Connect will use commercially reasonable efforts to safeguard the privacy and security of all data provided or made available to Subaru Care Connect 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. Subaru Care Connect will share Retailer’s data as permitted by law, and with authorized third parties only as necessary to perform the Software and Service Offerings and ancillary services ordered by Retailer in an enrollment agreement or order form, or to enable third party services that Retailer contracted for with its third parties. Further, Subaru Care Connect may share certain Retailer data related to use of Software and Service Offerings with Retailer’s brand OEM as applicable or as requested by Retailer’s OEM. Subaru Care Connect’s Privacy Policy is available at www.affinitiv.com/privacypolicy.

6.2 Retailer Privacy and Security. Retailer, on its behalf and on behalf of its Authorized Users, represents, warrants and covenants to Subaru Care Connect that in connection with accessing and using the Software and Service Offerings (i) all transmitted data from its DMS and technology ecosystem will be free from viruses or embedded code that could damage or disable the Software and Service Offerings, (ii) it will secure its point of sale devices and implement appropriate data security controls over its data environment, (iii) it will not perform or allow the unauthorized exhibit, presentation, recording, storage or capture of any Software and Service Offerings content, and (iv) as required by law, it has provided required notices to its end consumers that Retailer is disclosing the end consumer’s information to Subaru Care Connect, and notice that Subaru Care Connect will disclose end consumer information to necessary third party service providers to carry out the purpose of the dealings between Retailer and Subaru Care Connect.

6.3 Compliance. Subaru Care Connect will comply with all Retailer instructions regarding the treatment or handling of Retailer data, including instructions related to compliance with applicable laws, rules, or regulations. Subaru Care Connect will comply with all applicable laws, rules, and regulations relating to the privacy and security of Retailer’s data as possessed or processed by Subaru Care Connect hereunder.

6.4 California Data Privacy. Subaru Care Connect, in providing Software and Service Offerings to Retailer pursuant to enrollment agreement or order forms or Order Forms (the “Subaru Care Connect Service Agreements”), Retailer acknowledges itself as a covered business under the California Consumer Privacy Act, and Subaru Care Connect’s role as a Service Provider as defined therein.

6.4.1 Subaru Care Connect understands and agrees that to the extent the California Consumer Privacy Act applies to any Software and Service Offerings it provides to Retailer pursuant to the Subaru Care Connect Service Agreements, that Subaru Care Connect is prohibited from: 1) retaining, using, or disclosing California resident end consumer Personal Information that it receives in delivering the Services to the Client under the Subaru Care Connect Service Agreements, for any purpose other than performing the Business Purpose of the Software and Service Offerings as outlined in the Subaru Care Connect enrollment agreements or order forms, or as otherwise permitted by the California Consumer Privacy Act; and 2) retaining, using, or disclosing California Personal Information for a commercial purpose other than providing the Software and Service Offerings specified in the Subaru Care Connect Service Agreements. For the avoidance of doubt, capitalized terms used in the paragraph not defined in this Agreement are used as defined by the California Consumer Privacy Act. Subaru Care Connect’s Privacy Policy is available at www.affinitiv.com/privacypolicy.

6.4.2 “California Consumer Privacy Act” means California Civil Code 1798.100-1798.199, as amended from time to time, and also includes any regulations or other guidance issued by the California Attorney General’s office that is related to the statute. “California Personal Information” means the personal information, as defined by the California Consumer Privacy Act, of any natural person who is a California resident that Subaru Care Connect processes pursuant to the work that it performs under the Subaru Care Connect Service Agreements. California Personal Information does not include any information that is temporarily or permanently excluded from coverage under the California Consumer Privacy Act.

6.4.3 Subaru Care Connect certifies that it understands the California Consumer Privacy Act’s restrictions and prohibitions on selling personal information and retaining, using, or disclosing personal information outside of the Parties’ direct business relationship, and it will comply with them.

6.4.4 Retailer will at all times process its end consumer data deletion requests upstream in its own DMS environment before processing such requests downstream with Subaru Care Connect. Retailer acknowledges and understands that Subaru Care Connect’s services under the Agreement actively rely upon pulling Retailer’s end consumer data from each enrolled rooftop’s DMS, and any Retailer data deleted from Subaru Care Connect’s services that remains in a Retailer’s DMS will automatically be reimported to Subaru Care Connect’s services. Retailer will be solely liable to the extent that Retailer data fails to be deleted from Subaru Care Connect’s systems, is re-imported to Subaru Care Connect’s systems, or is otherwise mis-processed by Subaru Care Connect’s systems arising from Retailer’s lack of compliance with this Section.

7. Confidentiality

7.1 Definition. “Confidential Information” means any confidential or proprietary information of a party disclosed or made accessible to the other party in the course of performance under this Agreement, including, without limitation, trade secrets, software code, algorithms, confidential know-how, confidential business information (including but not limited to; screen layouts, program flow, business logic, business plans, Retailer lists, vendor lists, strategic alliances, marketing strategies, and planned new products and services) and other information which a party considers to be proprietary or confidential. Confidential Information, however, does not include information which (i) is or becomes generally available to the public (other than as a result of disclosure or dissemination by the receiving party), (ii) is or becomes available to the receiving party on a non-confidential basis from a single source (other than the disclosing party) that is not bound by an obligation of confidentiality relating to the information, (iii) has been independently acquired or developed by the receiving party without violating any obligation to the disclosing party, or (iv) was rightfully in the possession of the receiving party prior to receipt from disclosing party.

7.2 Obligations as to Confidential Information. Each party receiving Confidential Information of the other party (such party, for such purposes, the “Receiving Party”) shall: (i) limit access and use of the Confidential Information of the other party (such party, for such purposes, the “Disclosing Party”) to those of Receiving Party’s employees and agents that require such access and use in connection with this Agreement and who are bound by confidentiality provisions no less restrictive than those in this Section 7; (ii) not disclose or permit the disclosure of Disclosing Party’s Confidential Information to any third party, unless first authorized in writing by the Disclosing Party; (iii) protect the confidentiality and secrecy of the Disclosing Party’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care; and (iv) not use the Disclosing Party’s Confidential Information for any purpose except as required to perform its obligations under the Agreement or as otherwise expressly permitted pursuant to the Agreement. Receiving Party shall take appropriate action with its employees, or authorized third parties, to satisfy its obligations hereunder. The obligations set forth above in this Section 7.2 shall survive termination of the Agreement and continue thereafter for a period of five (5) years, except that for Confidential Information that consists of a party’s Trade Secrets, the obligations under this Section 7.2 shall extend for as long as such Confidential Information remains a trade secret under applicable law. Nothing in this Agreement is intended or shall be interpreted to limit, modify, or supersede any right or obligation related to any trade secret under applicable law. Either party may disclose the existence and general nature of the Agreement, but may not, without the prior consent of the other party, disclose the specific terms of the Agreement.

7.3 Mandatory Disclosure. Nothing in this Article shall prevent a Receiving Party from disclosing Confidential Information in compliance with a lawful order of a court, administrative tribunal, or regulatory or law enforcement agency with applicable jurisdiction provided that the Receiving Party: (i) where legally permissible, provides prior notice to the Disclosing Party of the legal obligation to disclose; (ii) takes reasonable measures to disclose only the minimum amount of Confidential Information necessary to comply with the obligation; (iii) takes reasonable measures to limit the further use or disclose of the disclosed Confidential Information through an applicable protective order or comparable means; (iv) where legally permissible, provides the Disclosing Party the opportunity to object or otherwise intervene to prevent or limit the disclosure; and (v) where legally permissible, cooperates reasonably with Disclosing Party as requested by Disclosing Party in obtaining relief to prevent or minimize the disclosure.

7.4 Return of Confidential Information. Upon termination of the Agreement, and at any time upon written request of the Disclosing Party, each Receiving Party agrees promptly to return to the Disclosing Party any Confidential Information of the other party together with all full or partial copies thereof and any transcripts, notes, or other materials made therefrom or embodying any of the other party’s Confidential Information; or, at the Disclosing Party’s election, to destroy such items and deliver to the Disclosing Party written certification that such materials have been destroyed.

8. Intellectual Property

8.1 Ownership. Except as expressly set forth in the Agreement, Retailer acknowledges and agrees that as between Retailer and Subaru Care Connect, Subaru Care Connect is the sole owner of all right, title, and interest in and to: (i) all Software or Service Offerings provided or made available to Retailer pursuant to the Agreement, together with all additions, modifications, developments, or enhancements of any of the same; (ii) all technology, software, products, program code, designs, methods, ideas, concepts, know-how, techniques, modules, components, generic documents or templates, tools, or other information developed, improved, modified, or used by Subaru Care Connect in performing its obligations pursuant to the Agreement; (iii) all brands, trade names, trademarks, and service marks used by Subaru Care Connect in connection with its Software or Service Offerings except as set forth in the Third-Party IP Section of this Agreement; and (iv) all data or content provided or used in connection with any Software or Service Offering pursuant to the Agreement except as set forth in the Retailer Data Section of this Agreement. Subaru Care Connect reserves all rights in all of the foregoing not expressly granted to Retailer pursuant to the Agreement, and Retailer agrees not to claim or assert any interest therein. Any use of any of the foregoing without the express authorization of Subaru Care Connect is strictly prohibited. Retailer may have feedback, suggestions, or comments that Subaru Care Connect or its related third parties may elect to incorporate, in whole or in part, into its software, products, services and related intellectual property. Subaru Care Connect and its related third parties shall own exclusively and in perpetuity all worldwide right, title and interest in and to any enhancements suggested by Retailer. Retailer hereby assigns all of their right, title and interest in any such enhancements suggested to Subaru Care Connect or its third parties. Retailer will execute such documents as may be deemed reasonably necessary to accomplish the objectives of this paragraph.

8.2 No Work Made For Hire. Except as expressly set forth in the Agreement, Retailer acknowledges and agrees that no work, development, or deliverable pursuant to the Agreement is a work made for hire and that Retailer will not have or obtain any ownership of any deliverable from Subaru Care Connect under the Agreement.

8.3 Third-Party IP. To the extent Retailer requires Subaru Care Connect to use any trademark, copyrighted material, or other intellectual property of any third party in connection with the provision of services to or for Retailer, Retailer hereby grants to Subaru Care Connect a non-exclusive, license, for the term of the Agreement, to copy, perform, distribute, create derivative works from, and use such third party intellectual property in connection with Subaru Care Connect’s performance of its obligations pursuant to the Agreement. Retailer represents and warrants that Retailer has the written consent from the owner of such third-party intellectual property, or a proper license or ownership right sufficient to allow the applicable use and to allow Retailer to authorize Subaru Care Connect to make such use of such third-party intellectual property as set forth above. Retailer further represents and warrants to Subaru Care Connect that the use of the intellectual property of any third party as contemplated by the Agreement does not and will not infringe the intellectual property rights of any third party.

8.4 Retailer Data. Subaru Care Connect acknowledges and agrees that as between Retailer and Subaru Care Connect, Retailer is the sole owner of all right, title, and interest in and to all data or content provided or made available to Subaru Care Connect by or on behalf of Retailer in connection with this Agreement. Retailer reserves all rights in such content and data not expressly granted hereunder. Retailer hereby authorizes Subaru Care Connect to copy, distribute, display, store, process, create derivative works from, and use all such content or data in connection with Subaru Care Connect’s performance of its obligations pursuant to the Agreement, including internal purposes of Subaru Care Connect such as operating, maintaining, and improving Subaru Care Connect’s Software and Service Offerings. Retailer also grants Subaru Care Connect an irrevocable, worldwide, non-exclusive, royalty-free and perpetual license to use, reproduce, distribute, display, process and store aggregated, de-identified data based on Retailer’s data. Retailer represents and warrants that Retailer has all necessary rights and authorizations to provide the content and data to Subaru Care Connect and to authorize Subaru Care Connect to copy, distribute, and use such content and data as authorized hereunder. Retailer expressly assumes the risk of any violation of law or rights, or any error or omission related to the provision of any data to Subaru Care Connect or Subaru Care Connect’s copying, storing, distribution, display, modification, or use of any data as contemplated under the Agreement.

8.5 Restrictions. Retailer shall not itself, or permit any third party to, use the process which is used with any services or any variation thereof for any reason whatsoever other than as expressly authorized and contemplated by the Agreement. Retailer shall not itself, or permit any third party to, use Retailer’s access to Subaru Care Connect’s Software or Service Offerings hereunder, to develop or offer similar products or services that would be competitive with the Software and Service Offerings offered by Subaru Care Connect.

9. Indemnification

Retailer Indemnification. Retailer shall defend each Retailer Covered Claim (as defined herein) and shall indemnify and hold harmless Subaru Care Connect and its employees, agents, shareholders, officers, directors, successors and permitted assigns (for purposes of this Section, each and collectively the “Indemnified Party”) from and against all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, without limitation, attorneys’ fees and the cost of enforcing any right to indemnification hereunder, arising out of or resulting from any demands, claims, investigations, lawsuits, or other proceedings of any kind made or brought against the Indemnified Party by a third party arising out of or relating to (each a “Retailer Covered Claim”): (i) a breach or non-fulfillment of any obligation, representation, warranty of Retailer; (ii) a violation of any applicable law by Retailer, including a violation of the terms of the Telephone Solicitation Policy in the form recommended by Subaru Care Connect, located at http:/www.affinitiv.com/telephone-solicitation-policyRetailer; or (iii) the unauthorized copying, disclosure, storing, processing, display or use of any personal information of any individual when such information was provided or made available to Subaru Care Connect under the Agreement and the applicable copying, disclosure, storing, processing, display, or use was contemplated under the Agreement.

9.1 Subaru Care Connect Indemnification. Subaru Care Connect shall defend each Subaru Care Connect Covered Claim (as defined herein) and shall indemnify and hold harmless Retailer and its employees, agents, shareholders, officers, directors, successors and permitted assigns (for purposes of this Section, each and collectively the “Indemnified Party”) from and against all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, without limitation, attorneys’ fees and the cost of enforcing any right to indemnification hereunder, arising out of or resulting from any demands, claims, investigations, lawsuits, or other proceedings of any kind made or brought against the Indemnified Party by a third party arising out of or relating to (each a “Subaru Care Connect Covered Claim”): (i) an allegation that any Software or Service Offering provided to Retailer by Subaru Care Connect under the Agreement infringes upon a United States copyright, United States patent, or applicable trade secret right of such third party; (ii) any violation of law by Subaru Care Connect except to the extent such alleged violation is conduct giving rise to a Retailer Covered Claim as set forth in this Agreement.

9.2 Indemnification Procedure. With respect to all Retailer Covered Claims and Subaru Care Connect Covered Claims (hereafter collectively each such a “Covered Claim”) the Indemnified Party shall promptly notify the Indemnifying Party of any Covered Claim and tender to the Indemnifying Party sole control of the defense and settlement of the Covered Claim at the Indemnifying Party’s expense, provided that the Indemnifying party shall not settle any Covered Claim in a manner that adversely effects the Indemnified Party’s rights without the Indemnified Party’s prior written consent, which will not unreasonably be withheld or delayed. The Indemnified Party shall provide, at the reasonable request of the Indemnifying Party, and at the Indemnifying Party’s expense, cooperation and assistance in the defense of any Covered Claim. The Indemnified Party may, in any event, participate in and observe the proceedings of any Covered Claim at its own cost and expense with counsel of its own choosing. If the Indemnifying Party fails to accept the tender of defense of a Covered Claim in writing within ten (10) days after receiving notice of the Covered Claim from the Indemnified Party, then the Indemnified Party shall have the right to assume the exclusive defense of the Covered Claim at Indemnifying Party’s expense. Any failure or delay by the Indemnified Party in performance of its obligations under this Indemnification Procedure Section shall only relieve the Indemnifying Party of its indemnification obligation hereunder to the extent such failure or delay materially prejudices the Indemnifying Party’s ability to defend or settle such Covered Claim.

10. LIMITATIONS AND DISCLAIMERS

10.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THE AGREEMENT, SUBARU CARE CONNECT, AND EACH THIRD PARTY SOFTWARE PROVIDER, DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY SOFTWARE OR SERVICE OFFERING. SUBARU CARE CONNECT DOES NOT WARRANT THAT ANY SOFTWARE OR SERVICE OFFERING WILL OPERATE OR BE AVAILABLE WITHOUT INTERRUPTION OR BE ERROR FREE. SUBARU CARE CONNECT EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY CONSEQUENCES ATTRIBUTABLE TO OR RELATED TO ANY USE OR NON-USE OF ANY SOFTWARE OR SERVICE OFFERING. RETAILER IS SOLELY RESPONSIBLE FOR THE CONTENT AND DATA PROVIDED TO SUBARU CARE CONNECT IN CONNECTION WITH THE AGREEMENT AND FOR ANY COPYING, DISTRIBUTION, DISPLAY, MODIFICATION, PROCESSING AND USE OF SUCH CONTENT OR DATA AS CONTEMPLATED IN THE AGREEMENT. SUBARU CARE CONNECT IS NOT RESPONSIBLE FOR THE RESULTS OBTAINED THROUGH THE USE OF ANY SOFTWARE OR SERVICE OFFERING AND DOES NOT REPRESENT, WARRANT, OR GUARANTEE ANY PARTICULAR RESULTS. SUBARU CARE CONNECT DOES NOT GUARANTEE THE SECURITY OF ANY DATA TRANSMITTED OVER THE INTERNET AND RETAILER UNDERSTANDS AND AGREES THAT THE PROVISION OF SOFTWARE OR SERVICE OFFERING VIA THE INTERNET, AND RETAILER’S ACCESS OF ANY SOFTWARE OR SERVICE OFFERING VIA THE INTERNET, IS INHERENTLY UNSECURE AND DONE AT RETAILER’S SOLE RISK. SUBARU CARE CONNECT DOES NOT WARRANT OR GUARANTEE INFORMATION SECURITY IN RELATION TO ANY SOFTWARE OR SERVICE OFFERING.

10.2 Third Party Warranties. Retailer acknowledges and agrees that the Software and Service Offerings provided by Subaru Care Connect under the Agreement may contain or require third party software or services, which shall be provided to Retailer through or as part of Subaru Care Connect’s Software or Service Offerings. SUBARU CARE CONNECT MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND WITH REGARD TO SUCH THIRD-PARTY SOFTWARE OR SERVICES. Subaru Care Connect agrees to pass through or assign to Retailer any warranties provided by third parties with regard to such third-party software or services to the extent so assignable.

10.3 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL SUBARU CARE CONNECT OR ANY THIRD PARTY SOFTWARE PROVIDER BE LIABLE TO RETAILER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, COLLATERAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER PECUNIARY LOSS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LOST PROFITS, LOST BUSINESS, LOST GOODWILL, OR LOST DATA, ARISING OUT OF THE USE, OR INABILITY TO USE, ANY SOFTWARE OR SERVICE OFFERING HEREUNDER, OR OTHERWISE RELATED IN ANY WAY TO THE AGREEMENT OR A SUBJECT THEREOF, WHETHER ARISING UNDER THEORIES OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER THEORY, AND REGARDLESS WHETHER SUBARU CARE CONNECT OR THE THIRD PARTY SOFTWARE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SUBARU CARE CONNECT’S AGGREGATE LIABILITY UNDER ANY PROVISION OF THE AGREEMENT OR OTHERWISE EXCEED THE LESSER OF THE TOTAL AMOUNT ACTUALLY RECEIVED BY SUBARU CARE CONNECT FROM RETAILER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO LIABILITY, OR $50,000. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10.4 Assumption of Risk. Retailer acknowledges that use of the Software and Service Offerings represents an assumption of risk and that Subaru Care Connect, its licensors, affiliates and suppliers do not underwrite or assume Retailer’s risk in any manner by providing access to and supporting Retailer’s use of the Software and Service Offerings. Retailer’s content, correspondence and business dealings with its end consumers through use of the Software and Service Offerings, regardless of whether the content is present within the Software and Service Offerings or accessed via the Software and Service Offerings through third party data providers, are solely between Retailer and its end consumers. Retailer’s content, correspondence and business dealings with its end consumers includes, without limitation, Retailer’s marketing, offers, disclaimers, incentives, finance and tax terms such as: lease transaction calculations, lease rates, lease residual values, lease parameters, lease policies, lease factors, lease paid reserve calculations, finance transaction calculations, finance rates, finance fees, finance paid reserve calculations, finance parameters, finance policies, finance factors, manufacturer incentives, manufacturer rebates, lender incentives, lender rebates, federal taxation calculations, state taxation calculations, county taxation calculations, taxation policies, DMV calculations and DMV fees.

10.5 Legal Compliance. IN NO WAY DOES ANY CONTENT PROVIDED BY SUBARU CARE CONNECT, ITS LICENSORS, AFFILIATES OR SUPPLIERS, (SUCH CONTENT INCLUDING, WITHOUT LIMITATION, ADVERTISING, MARKETING MATERIALS, OR DISCLAIMERS) CONSTITUTE LEGAL ADVICE. NEITHER SUBARU CARE CONNECT NOR ITS LICENSORS, AFFILIATES OR SUPPLIERS ARE ENGAGED IN THE PRACTICE OF LAW OR IN PROVIDING LEGAL OR COMPLIANCE SERVICES.

11. Term and Termination

11.1 Term. The term of the Agreement shall begin as of the execution of the enrollment agreement or order form or Order Form document by Retailer (the “Effective Date”) and shall continue for the period set forth therein or herein for each applicable Software and Service Offering. The term applicable to each Software or Service Offering may be different and shall only remain in force for the term applicable to that specific Software or Service Offering as set forth in each applicable enrollment agreement or order form or Order Form or in this Agreement. The term of the Agreement as a whole shall continue until the end of the last term applicable to a particular Software or Service Offering.

11.2 Initial Term. The default initial term of the Agreement for each respective Software or Service Offering shall be twelve (12) months from the Effective Date (“Initial Term”), unless specifically provided otherwise on the enrollment agreement or order form document for such Software or Service Offering. If Retailer terminates a Software or Service Offering early, prior to the Initial or Renewal Term expiration, then Retailer will pay the remainder of the contracted Term, without regard to use of the Software or Service Offering or lack thereof.

11.3 Renewal Terms. Except as otherwise provided on the enrollment agreement or order form document for a Software or Service Offering, the term of the Agreement with regard to each Software or Service Offering to which the terms and conditions of this Agreement are applicable shall automatically renew at the end of the Initial Term for a renewal term of thirty (30) days (“Renewal Term”), continuing to automatically renew for additional thirty (30) day Renewal Terms thereafter, at Subaru Care Connect’s then-current standard rates for such offering, unless Retailer provides written notice of its intent not to renew at least thirty (30) 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 or Service Offering.

11.4 Termination for Cause. Subaru Care Connect may terminate this Agreement immediately by providing notice of termination to Retailer, upon the occurrence of any of the following:

11.4.1 Any breach of this Agreement by Retailer, which breach continues thirty (30) days after notice thereof to Retailer from Subaru Care Connect;

11.4.2 Any breach of the terms and conditions of this Agreement or the terms of use within the Software or Service Offerings with respect to Retailer’s confidentiality obligations or privacy responsibilities as outlined herein and therein;

11.4.3 Any violation of law or Subaru Care Connect’s intellectual property rights by Retailer;

11.4.4 Retailer sells or transfers its assets related to its operations in connection with this Agreement, or merges with a third party, without the prior written consent of Subaru Care Connect to the assignment of this Agreement and agreement from Retailer’s successor in such transaction to assume all of Retailer’s obligations and liabilities hereunder; or

11.4.5 Retailer is adjudicated as bankrupt, or a petition in bankruptcy, reorganization or similar proceeding is filed against Retailer and such petition is not discharged within sixty (60) days of such filing, or Retailer is dissolved or liquidated.

11.5 Termination for Convenience. Subaru Care Connect may terminate this Agreement for its convenience upon thirty (30) day notice to Retailer.

11.6 Effect of Termination. The termination of this Agreement for any reason shall not terminate any liability or obligation of Retailer hereunder which accrues prior to such termination, including, without limitation, Retailer’s obligation to pay any amounts that are or become due to Subaru Care Connect up to the date of termination. Upon termination, Retailer’s right to receive or use any and all Software and Service Offerings of Subaru Care Connect shall immediately cease and all licenses to any Software or Service Offerings granted in the Agreement are immediately revoked. In the event of Subaru Care Connect’s termination for convenience pursuant to this Agreement, Subaru Care Connect shall refund to Retailer the unused balance of any fees paid in advance for a period or quantity of service or use of any Software or Service Offering applicable to any period after the date of termination. In the event of Subaru Care Connect’s termination for cause of this Agreement, all unpaid balances and all recurring charges for the remainder of the then-current term at the time of termination shall immediately become due and payable. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief.

12. Service Lane Software Platform Terms. The “Software Offering” for purposes of the Service-Lane Platform is Subaru Care Connect’s proprietary Service Lane Multi-Point Inspection component, which may also be referred to as “MPI”, or “Smart Check”

12.1 Retailer’s access to Subaru Care Connect’s MPI Software Offering may also be provided pursuant to a license from MOTOR Information Systems (the “MOTOR Information”) and by accessing such MPI information, Retailer agrees to comply with the following terms and conditions:

12.1.1 License Grant. MOTOR hereby grants to Retailer a nontransferable, non-exclusive, limited license to access and use the MOTOR Information contained within the MPI Software Offering on a vehicle-by-vehicle look-up basis.

12.1.2 Restrictions on Use of MOTOR Information. Retailer agrees that it shall not, and shall not permit any third party, to directly or indirectly (i) alter or copy in any form or medium all or any part of the MOTOR Information (except for data located on an individual, vehicle by vehicle, lookup basis), nor make any MOTOR Information part of any electronic retrieval system; (ii) create any derivative work from, or adaptation of, the MOTOR Information; (iii) lease, license, sell, or otherwise publish, communicate, distribute or display to any third party in any form or medium all or any part of the MOTOR Information; (iv) create any publications, in electronic, printed or other format, based in whole or in part on data from the MOTOR Information, alone or in combination with any other data; (v) download the MOTOR Information (other than the data obtained on a vehicle-by-vehicle look-up basis) or transmit the MOTOR Information electronically by any means; (vi) remove any product identification, copyright, trademark or other notice from the MOTOR Information or documentation; or (vii) reverse engineer, reverse assemble, or reverse compile the MOTOR Information.

12.1.3 Ownership/Confidentiality. Retailer agrees that the MOTOR Information is the confidential information of MOTOR, and that MOTOR owns or is the subscriber of all rights in the MOTOR Information, including without limitation all copyright and other proprietary rights. Retailer agrees to keep confidential and use its best efforts to prevent and protect the MOTOR Information from unauthorized disclosure or use.

13. Equity Mining Software Platform Terms. The following additional terms are applicable to the equity mining Software Offering, known as “Quote” or “Trade Up Advantage” (“Quote”):

13.1 Retailer’s content, correspondence and business dealings with its Retailers includes, without limitation, Retailer’s marketing, offers, disclaimers, incentives, finance and tax terms such as: lease transaction calculations, lease rates, lease residual values, lease parameters, lease policies, lease factors, lease paid reserve calculations, finance transaction calculations, finance rates, finance fees, finance paid reserve calculations, finance parameters, finance policies, finance factors, manufacturer incentives, manufacturer rebates, lender incentives, lender rebates, federal taxation calculations, state taxation calculations, county taxation calculations, taxation policies, DMV calculations and DMV fees.

14. Marketing Platform Service Offering Terms. The following additional terms are applicable to the Marketing Platform Service Offering:

14.1 The “Service Offering” for purposes of the Marketing Platform is Subaru Care Connect’s proprietary retention marketing solution, which may be referred to as “Essentials” or “Care Connect” (“Essentials”).

14.2 Automatic Telephone Dialing System. Retailer acknowledges and understands that the Marketing Service Offering is a prerecorded Retailer notification program consisting of triggered variable content electronic and print vehicle service-related communications to vehicle owners, based on Retailer DMS related consumer transactions and owner-specific vehicle service history information, and requires the use of what certain legal jurisdictions may consider an Automatic Telephone Dialing System, as that term is defined under the TCPA.

14.3 Compliance. It is Retailer’s responsibility to seek independent legal advice with respect to Retailer’s specific use of Essentials and to comply with applicable local, state and federal laws and regulations, which may include, by way of example only, a) having prior express written consent to contact all recipients; b) scrubbing all contact lists against national and state do-not-call lists and Retailer’s internal do-not-call lists; and c) ensuring that all Essentials message content is compliant with applicable laws. If Retailer has any questions regarding compliance, Retailer will obtain independent legal advice before initiating any Essentials campaign. Subaru Care Connect agrees to comply with all Retailer instructions regarding compliance with applicable laws, rules, or regulations. Subaru Care Connect will use commercially reasonable efforts to avoid applicable communications with a consumer on Retailer’s behalf after receipt of notice from Retailer 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. Subaru Care Connect shall maintain “Do Not Call” “Do Not Mail” or “Do Not Email” lists specific to Retailer and shall use commercially reasonable efforts to check against such lists prior to initiating any communication. Subaru Care Connect agrees that it shall never override the Retailer’s specific Do Not Call list in performing the services. Without limiting any of the foregoing, Subaru Care Connect 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.

14.4 When Retailer has elected to receive any direct mail Service Offerings as identified on a enrollment agreement or order form, the following additional terms apply:

14.4.1 Retailer on its behalf and on behalf of each of its users, represents, warrants and covenants to Subaru Care Connect that in connection with direct mail Service Offerings under this Agreement: (i) it will review all mail products produced pursuant to this Agreement, and approve final proof’s prior to mailings; (ii) all review and approval of mail products, is done so by an individual whose signature of approval is set forth with full power and authority and has been duly authorized by all necessary corporate action on the part of Retailer; (iii) its mail products will at all times comply with all applicable federal, state, and local laws, rules and regulations, including without limitation, those laws governing terms related to warranties, credit, payment, financing, taxes, promotions, contests and sweepstakes; and (iv) its mail products will not infringe on third party trademarks or copyrights.

14.4.2 In the event Retailer terminates direct mail services prior to the printing of a piece, Retailer shall still owe the greater of $500 or fifty percent (50%) of the cost of the direct mail.

14.4.3 Subaru Care Connect will not be liable for any damages or loss of business if a mailing is delayed or cancelled due to non-payment by Retailer.

14.4.4 In the event of printer error, where the piece mailed does not correspond to the proof approved, Subaru Care Connect will only be liable for reprinting and mailing the piece as was approved.

14.4.5 Retailer is solely responsible for the contents of a proof once approved by Retailer. In no event will Subaru Care Connect be liable for errors, grammatical, spelling or otherwise, if final proof containing the errors was approved by Retailer.

14.4.6 Prices are subject to change without notice due to postage increases and Retailer shall be responsible to pay any such increases when invoiced pursuant to the Agreement.

14.5 When Retailer has elected to receive telephonic or text message contact services or other telephony Service Offerings, the following additional terms apply:

14.5.1 Retailer hereby authorizes Subaru Care Connect to annually (or more frequently as required by applicable law) register Retailer with the FTC Do Not Call Registry and the do not call registry of each applicable state (collectively, “DNC Registration”) so that Retailer is authorized to obtain the FTC and each such state’s DNC lists, and Retailer agrees to reimburse Subaru Care Connect for all charges imposed by said governmental agencies for said registrations.

14.5.2 Retailer acknowledges that telephone solicitation is regulated pursuant to federal and state law, and any modifications made by Retailer to the Policy which are less restrictive than applicable law may be in violation of such law. Retailer agrees to comply with all applicable federal and state laws when using the services, including laws that apply in the state where Retailer calls using the services are made, as well as laws that apply in states where Retailer calls using the services are received. Retailer agrees to take reasonable steps to stay informed as to applicable state and federal laws as it applies to Retailer’s use of the services.

14.5.3 Retailer hereby agrees and acknowledges that Subaru Care Connect, or a third party designated by Subaru Care Connect, may record, review and evaluate digitized telephone calls arising from the services for internal quality assurance or at Retailer’s request, and may utilize and publish call traffic statistics without identifying Retailer.

14.5.4 Retailer 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. Retailer certifies that no calls or text messages will be made to a wireless phone or other wireless device in respect of the services, unless Retailer has first received advance written consent from each proposed consumer recipient, which consent complies with applicable law, and which includes transmitting notifications of safety recalls where end consumers are then charged for recall repairs or solicited for paid services.

14.6 Responsibility. Retailer further agrees that all marketing and other campaigns designed for use with the services shall be designed solely by Retailer, subject to technical support and a help line that may be available from time to time through Subaru Care Connect. Subaru Care Connect may provide templates, model scripts, and other design assistance for Retailer’s consideration, but Subaru Care Connect makes no representation regarding the propriety of such templates, model scripts or input for any particular situation. Retailer remains solely responsible for its selections and choices regarding campaign design, including the script to be used for any calls. Where applicable, Subaru Care Connect will provide each proof to Retailer for approval. Retailer shall notify Subaru Care Connect of its approval of the proof or of any requested changes as soon as reasonably practicable. Subaru Care Connect will take no action on any proof until and unless approved by Retailer and Subaru Care Connect shall have no responsibility or liability regarding delayed performance or failures of performance to the extent resulting from Retailer’s failure to approve a proof in a timely manner.

14.7 Communication Policies. Retailer agrees to abide by all applicable Subaru Care Connect policies (as such policies may be adopted or amended by Subaru Care Connect from time to time and provided by Subaru Care Connect to Retailer via Subaru Care Connect’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”). Retailer shall remain in compliance with the Policies at all times in connection with Retailer’s use of all services hereunder. Subaru Care Connect’s policies in this regard include but are not limited to the following:

14.7.1 Retailer shall not use the services to transmit any Message that (i) is obscene, or defamatory or violates any intellectual property rights or any other rights of any third party, (ii) facilitates or promotes violent, discriminatory or illegal activity, (iii) contains any sexually explicit content or images or other image that may be harmful to minors (iv) promotes any pyramid scheme, (v) is false, misleading, or likely to mislead or deceive (including, without limitation, information relating to the source or the author of the message), (vi) contains viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature, or (vii) 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.

14.7.2 Retailer will not utilize the services to transmit any Message in text form to a wireless phone or wireless device to any consumer unless Retailer has obtained such consumer’s express prior written consent to receive such Messages. Retailer must also provide all Message recipients with the ability to opt-out of receiving future Messages from Retailer as follows:

14.7.2.1 by sending a Message to Retailer with “stop” (regarding Text Subaru Care Connect) or “unsubscribe” (regarding Email Subaru Care Connect), in the text; and

14.7.2.2 via the same mechanism as the recipient consents (or opts-in) to receiving Messages from Retailer. Retailer must include a prominent description of the opt-out mechanism at the same location and time as Retailer provides the recipient an opportunity to consent/opt-in. Retailer will not send any Messages to any consumers who have chosen to opt-out of receiving Messages from Retailer.

15. Trade-in Valet Platform Service Offering. The following additional terms are applicable to the Trade-in Valet Service Offering as offered through the Subaru Certified Digital program reseller Sanctus, LLC, doing business as Shift Digital (“TIV Services”):

15.1 TIV Services. The TIV Services are standalone individualized vehicle appraisal services that collect vehicle information through a website application and Retailer end consumer facing communication portal.

15.2 Retailer will only use end consumer and vehicle information obtained through the TIV Services for the sole purpose of communicating with end consumers about the purchase of their vehicle, and Retailer’s potential sale of a vehicle to the end consumer. Retailer will not sell or transfer any end consumer information derived from the TIV Services to a third party for marketing or any other purpose.

15.3 Retailer is solely responsible for accurately disclosing the vehicle condition into the TIV Services in accordance with the National Auto Auction Association Arbitration Policy, effective January 15, 2021, located at www.NAAA.com, as may be amended from time to time (“NAAA Requirements”), including without limitation, disclosure of any structural damage, structural repairs/replacements, and structural alterations, to include disclosure of drivability, paintwork, body damage, tire condition, non-working components, missing equipment, and/or aftermarket equipment, also disclosure of issues as may be legally required, and disclosure of conditions which a reasonable person would deem a safety or integrity concern.

15.4 As part of the TIV Services, Retailer may elect to have Subaru Care Connect purchase a vehicle from Retailer for the appraised amount issued by the TIV Services (“Buy-Back Option”), if all of the following conditions are satisfied:

15.4.1 Appraisals issued to a potential end consumer by the TIV Services are valid for the Buy-Back Option for ten (10) calendar days, with such 10-day period commencing on the date of appraisal;

15.4.2 Upon end consumer presenting their appraised vehicle to Retailer within the 10-day period, or upon Retailer requesting a Retailer vehicle appraisal (“Retailer Request”), Retailer is solely responsible for ensuring that the vehicle condition provided into the TIV Services is a true representation of the actual vehicle condition;

15.4.3 Retailer may exercise the Buy-Back Option by providing notice to Subaru Care Connect, with acknowledgement of receipt, for three (3) calendar days of either (i) the date the consumer presents their vehicle to Retailer for trade-in at the Subaru Care Connect generated appraisal amount, or (ii) the date the Retailer receives a TIV Services generated re-appraised amount following disclosure of additional vehicle conditions initially undisclosed by the end consumer, or (iii) the date the Retailer receives an appraisal from a Retailer Request. Such 3-day period will commence on the date specified above in either (i), (ii), or (iii);

15.4.4 Following Retailer’s notice to Subaru Care Connect to exercise Buy-Back Option within such 3-day notice period, Retailer must arrange and ensure delivery of their vehicle to a Manheim or ADESA facility for a third-party Condition Report, at Retailer’s cost, within three (3) calendar days, with such 3-day period including the date of notice, and where Retailer will remain responsible for transit and ownership of their vehicle to the auction facility, and;

15.4.5 If the third-party Condition Report confirms the vehicle condition as provided by Retailer to the TIV Services to generate the appraisal, then following Subaru Care Connect’s receipt of vehicle title, Subaru Care Connect will pay Retailer the final appraised amount generated by the TIV Services. To the extent the third-party Condition Report contradicts the vehicle condition as provided by Retailer to the TIV Services, then TIV reserves the right to reject purchasing Retailer’s vehicle, or may elect to modify the purchase price at its sole discretion.

15.5 Subaru Care Connect reserves the right to modify or amend the Buy-Back Option as outlined herein at its sole discretion by providing Retailer with notice via email to the point of contact stated in the Enrollment agreement or order form, or via monthly invoice in the normal course of business. Retailer’s continued use of the TIV Services for a 10-day period following Subaru Care Connect’s notice of Buy-Back Option modifications or amendments will constitute Retailer’s acceptance of such modifications or amendments.

15.6 Subaru Care Connect’s receipt of Retailer’s request to cancel the TIV Services shall terminate the Buy Back Option for the remainder of the Term. The Buy Back Option shall only apply to vehicles located within the continental United States and excludes Alaska and Hawaii.

16. Ringless Voicemail Drops Service Offering. The following additional terms are applicable to the Ringless Voicemail Drop Service Offering (“Voice Valet”, “Ringless Voicemail Drops” or “RVM”):

16.1 RVM may in some circumstances make a partial ring or line “tap” or “ping” on a recipient’s phone. RVM’s may be subject to regulatory content restrictions and state and/or federal laws. It is Retailer’s responsibility to seek independent legal advice with respect to Retailer’s specific use of RVM and to comply with applicable local, state and federal laws and regulations, which may include, by way of example only, a) having prior express written consent to contact all recipients; b) scrubbing all contact lists against national and state do-not-call lists and Retailer’s internal do-not-call lists; and c) ensuring that all RVM message content is compliant with applicable laws, including but not limited to clearly providing the true identity of the originator of the message at the beginning of all messages, including return telephone number and address, and providing opt-out options in messages. If Retailer has any questions regarding compliance, Retailer will obtain independent legal advice before initiating any RVM campaign.

16.2 Retailer represents and warrants to Subaru Care Connect that for the end consumer lists Retailer selects to receive RVMs, that Retailer has received each end consumer’s “prior express consent,” or “prior express written consent” to receive RVMs, as legally necessary and applicable. The terms “prior express consent,” and “prior express written consent” shall have the meaning prescribed by the TCPA, the FCC’s TCPA rules, 47 C.F.R. § 64.1200 et seq., and the FCC’s TCPA decisions.

17. The following additional terms are applicable to the Anonymous Shopper Service Offering (“Anonymous Shopper”):

17.1 Compliance. When utilizing the Anonymous Shopper Services, Retailer acknowledges that by placing the pixel on its website, Retailer will be collecting consumer information on website visitors. Retailer shall disclose its collection of consumer data to consumers on the website which the pixel is installed, for example, by providing notice of such action in Retailer’s consumer facing privacy policy, such as: This site uses third-party monitoring software(s) and may obtain information about you and your visit which will help us improve the quality of our service. We may use this data for marketing to you. To opt-out visit [dealership opt-out method].

17.2 It is Retailer’s responsibility to seek independent legal advice with respect to Retailer’s specific use of Anonymous Shopper and to comply with applicable local, state and federal laws and regulations. If Retailer has any questions regarding compliance, Retailer will obtain independent legal advice before initiating Anonymous Shopper Services.

18. General Terms

18.1 Relationship of the Parties. The Parties are and shall remain independent contractors to one another. Nothing herein, and no act taken in accordance with the Agreement, shall be deemed to establish a partnership, joint venture or agency relationship between the Parties, and neither party shall have the right to obligate or bind the other party in any manner to any third party.

18.2 Survival. All provisions of this Agreement which by their nature are intended to survive the termination of the Agreement (including, without limitation, the provisions of Confidentiality, Indemnification, Limitations and Disclaimers, and General Terms of this Agreement) shall survive such termination.

18.3 Notices. All other notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the enrollment agreement or order form to this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

18.4 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

18.5 Entire Agreement. This Agreement, together with Subaru Care Connect’s End User License Agreement (“Subaru Care Connect EULA”), and any end user license agreement required by Subaru Care Connect’s third party licenses (“Third Party EULA”) for applicable Software and Service Offerings, which Retailer will be required to review and accept upon accessing the Software and Service Offerings, and any other applicable enrollment agreement or order form, or document related to Software and Service Offerings incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Subaru Care Connect reserves the right to change, or add new provisions to the Subaru Care Connect EULA at any time to address new requirements under applicable laws, regulations, or contractual commitments of Subaru Care Connect, changes in business requirements or otherwise as Subaru Care Connect deems necessary, in its sole discretion, to protect the Software and Service Offerings, Retailer’s end consumer information, or Subaru Care Connect’s business interests. If Subaru Care Connect makes any changes to its Subaru Care Connect EULA, Subaru Care Connect will provide Retailer with notice of such changes by presenting the changed Subaru Care Connect EULA for Retailer’s review and acceptance upon accessing the Software and Service Offerings. Retailer’s acceptance of any Subaru Care Connect EULA at any time after the Effective Date of this Agreement shall constitute acceptance of such new or changed terms. Except as provided in this Section with respect to the Subaru Care Connect EULA, the Agreement may only be modified with a written amendment expressly referring to the Agreement and executed by each party. Any additional or contrary terms and conditions contained on or in a Enrollment agreement or order form or purchase order shall have no effect and are hereby expressly rejected.

18.6 Assignment. Retailer may not assign the Agreement or any of Retailer’s interests, rights or obligations thereunder, either by written agreement, merger, consolidation, operation of law, or otherwise, without the prior written consent of Subaru Care Connect which may be exercised in the sole discretion of Subaru Care Connect. Any purported assignment in violation of the foregoing shall be null and void ab initio. Subaru Care Connect may assign this Agreement for any reason, in its sole discretion, including statutory assignments such as merger, and Subaru Care Connect’s rights and/or obligations hereunder, including without limitation assignment of amounts due by Retailer to a financial institution, factor or leasing company of Subaru Care Connect’s choice. Subject to the foregoing, the Agreement shall inure to the benefit of and be binding upon each of the Parties and their respective permitted successors and assigns.

18.7 Force Majeure. Delays or failure of Subaru Care Connect in the performance of any obligations under the Agreement, including but not limited to operation or performance of any Software or Service Offerings, shall be excused where such a delay or failure is caused by events beyond the reasonable control of Subaru Care Connect, including, but not limited to, acts of God; explosion, flood, fire, or hurricane; any form of civil unrest; labor strike; government action, order or law; national or regional emergency; non-availability of adequate power; loss and destruction of property; server failures; software glitches; failure of internet service providers; and failure of telecommunications providers.

18.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and except for provisions applicable to third party DMS licensors, nothing herein, express or implied, is intended to or shall confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

18.9 No Waiver. No term or provision of the Agreement shall be deemed waived and no breach excused, unless such waiver or excuse is in writing signed by the party granting such waiver or excusing such breach. No consent to, or waiver of, a breach, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach by such party.

18.10 Severability. In the event any provision of the 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 any Software or Service Offering cannot be used for one or more applications by Retailer as a result of restrictions set forth in applicable law, Retailer agrees to comply with all such restrictions, and such restrictions shall not otherwise impact the terms of the Agreement.

18.11 Governing Law, Jurisdiction and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of Illinois 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 related to the Agreement shall be exclusively in the United States District Court for the Northern District of Illinois, or other courts located in Cook County, Illinois, as applicable, and the judgment of said courts on any matter may be entered in any court having jurisdiction over a party to the Agreement. Each party hereby expressly and irrevocably waives any right that it may have to contest the jurisdiction of such courts or the appropriateness of such venue.

18.12 Equitable Relief. Retailer acknowledges and agrees that a breach or threatened breach by Retailer of any of its obligations under this Agreement, including without limitation, (i) its confidentiality obligations, (ii) obligation to comply with use restrictions on Retailer’s use of the Software and Service Offerings, or (iii) Retailer’s obligation to maintain the security of its own information technology infrastructure and all access to and use of the Software and Service Offerings, would cause Subaru Care Connect irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Subaru Care Connect will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

18.13 Prior Agreements Superseded. If Retailer is subscribing to Software or Service Offerings hereunder for which Retailer has any form of prior agreement with Subaru Care Connect for an individual or combination of Software and/or Service Offerings, then the terms applicable to such Software and Service Offerings contained in this Agreement, as applicable, will supersede the terms applicable to such Software and Service Offerings contained in any prior agreement between Retailer and Subaru Care Connect or between Retailer and a company acquired by and now owned by Subaru Care Connect, as of the Effective Date of this Agreement.

18.14 Order of Precedence. In the event of any inconsistency or conflict between the provisions in the general terms and conditions of this Agreement and the provisions of any enrollment agreement or order form providing Subaru Care Connect’s Software and Service Offerings to Retailer, (other than an exception expressly set forth as such in an enrollment agreement or order form), the provisions in the terms and conditions of this Agreement will prevail with respect to Affinitiv, Inc. In the event of any inconsistency or conflict between the statements in the body of this Agreement and the statements in Subaru Care Connect’s clickthrough End User License Agreement, the statements in Subaru Care Connect’s End User License Agreement shall control the business relationship between Subaru Care Connect and Retailer with respect to Subaru of America.