MASTER SERVICE AGREEMENT
GENERAL TERMS AND CONDITIONS
1. License Granted. Service Provider and its licensors hereby agree to provide Dealer access to the selected Licensed Services for the specified dealership location(s)/rooftop(s) herein, under a non-exclusive, non-transferable, non-sublicensable, revocable license during the term of this Agreement, in accordance with and subject to the terms of this Agreement.
2. Connection to Licensed Services. The terms and conditions of this Agreement are effective as of the date of Dealer’s signature herein (“Effective Date”). The products and services that Dealer subscribes to in any Service Order are collectively referred to herein as the “Licensed Services”. Service Provider and its licensors will provide connection access to the selected Licensed Services by providing Dealer’s users with access accounts accessible by internet using a browser, subject to Service Provider’s evaluation and approval of Dealer’s technical infrastructure and internet connectivity. The Licensed Services may require the use of technology such as, without limitation, communication through telephone, electronic mail, File Transfer Protocol, and/or other methods of delivery. Dealer acknowledges that use of the Licensed Services depends on Dealer’s use of a browser via the Internet service provider of Dealer’s choice (must be 5mbs or greater), and that additional hardware, software, and telephone systems may be necessary as Service Provider or its licensors may require from time to time. Dealer shall be responsible for the cost of procuring and maintaining all hardware, software, equipment and Internet connections to the Licensed Services. Service Provider and its licensors may at their sole option and for agreed fees, assist Dealer in setting up Dealer’s equipment and software. Dealer agrees that Dealer will utilize a reputable antivirus software program on Dealer’s equipment and that Dealer will update such antivirus software periodically in accordance with a commercially reasonable schedule.
4. Service Order Total Investment Billing Terms:
4.1. One-Time Investment. Dealer will pay One-Time Investment fees, covering the following: (i) all applicable upfront Licensed Service setup fees, (ii) all applicable data integration setup fees necessary to commence Monthly Data Acquisition, and (iii) Service Provider training fees, excluding Service Provider travel expenses arising from training that will be invoiced separately. One-Time Investment excludes training and travel expenses arising from Service Provider’s MPI product, and will be invoiced separately by a third-party.
4.2. Monthly Recurring Software Services. Monthly Recurring Software Services fees excludes (i) fees applicable to Direct Mail, Email Append, and Engage, and (ii) excludes Service Provider’s data security and infrastructure fee, which will not exceed three percent (3%) of the Monthly Recurring Software Services fees.
4.3. Monthly Recurring Mail Budget. Service Provider’s use of Dealer’s approved Monthly Recurring Mail Budget will vary, and Service Provider’s invoicing for mail will not exceed the Monthly Recurring Mail Budget. Service Provider may invoice the Monthly Recurring Mail Budget separately from Monthly Recurring Software Services. Dealer will pay Service Provider mail invoices, including all postage fees and applicable taxes, on receipt of invoice, prior to mail being transmitted. Dealer acknowledges that mail product taxes vary by state, and may differ from taxes applicable to software Licensed Services. Service Provider requires thirty (30) day prior written notice for cancellation of monthly recurring mail products. Service Provider reserves the right to terminate provision of mail products at any time without notice if Dealer is delinquent in payment.
4.4. Monthly Data Acquisition. Dealer acknowledges that the amount reflected as the Monthly Data Acquisition fee arises from integrating the Licensed Services with Dealer’s Data Management System (“DMS”), and is necessary to Service Provider’s ability to provide the Licensed Services. Notwithstanding any verbal or written understanding or agreement to the contrary, Dealer 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 Dealer will pay all Monthly Data Acquisition fees as invoiced. Dealer’s use of Licensed Services on certain DMS types may be subject to an additional $0.055 fee per DMS transaction processed by the Licensed Services (the “DMS Transaction Fee”). Any alterations to the product or package selections of Licensed Services will incur change fees. Monthly Data Acquisition fees exclude Service Provider’s data security and infrastructure fee, which will not exceed three percent (3%) of the Monthly Data Acquisition fees.
4.5. Fees. Dealer’s access to Licensed Services is subject to timely payment of all Service Order fees outlined as One-time Investment, Monthly Recurring Software Services, Monthly Data Acquisition, and if applicable, Monthly Recurring Mail Budget, Engage setup and service fees as outlined in a Sales Order, and variable Email Appends fees as invoiced after delivery of services. If fees for the Licensed Services, or any portion of the Licensed Services, are billed to Dealer’s OEM parts statement, Dealer agrees to pay such fees through, and in accordance with the terms of, Dealer’s OEM parts statement. Service Provider reserves the right to periodically review and adjust Monthly Recurring Software Services fees to reflect inflation and increased costs of production and to change any of its recurring fees stated in a Service Order by giving Dealer thirty (30) day prior written notice, which may be provided in invoice form. If Service Provider terminates Dealer’s access to the Licensed Services due to continued account delinquency following Service Provider’s provision of the Notice of Delinquency and Termination of Services, and Dealer subsequently requests reactivation, then Service Provider will invoice Dealer a reactivation fee of $500 per Dealer rooftop, or higher, as determined by Dealer’s integration requirements (the “DMS Reactivation Fee”). The DMS Reactivation Fee may be increased at any time. Dealer shall pay for all of Service Provider’s reasonable attorneys’ fees, court costs and other expenses related to its collection of delinquent amounts. Dealer will be charged a $20 service fee for each returned check.
4.6. Combinations of Licensed Services. Service Provider may offer certain combinations of its Licensed Services as bundled suite offerings with associated pricing discounts, which may be evidenced in an initial Service Order or through a Product Add-on Service Order. Dealer must re-contract a new Service Order with Service Provider to change bundled suite fees, and will not be entitled to any reduction in the total amount of bundled suite fees if Dealer subsequently terminates any individual Licensed Service within a bundled suite offering, other than in connection with termination of all Licensed Services.
4.7. Billing Cycle. Service Provider will invoice Dealer for Monthly Recurring Software Services upon delivery of access to any Licensed Services that include web-based instruction or delivery of access to Licenses Services following onsite product training. If Dealer enrolls in a combination of Licensed Services, and requests that the set-up of Licensed Services be staggered over a prolonged or extended delivery schedule, then notwithstanding the pricing terms of any Service Order, Dealer will be invoiced at retail rates for each individual Licensed Service as it is activated, until all combination of Licensed Services contracted for are activated, upon which time, Service Provider will begin invoicing Dealer at the rates reflected in the Service Order.
4.8. Payment Terms. Dealer will pay Service Provider a deposit equal to the One-Time Investment fees, first month’s Monthly Recurring Software Services fees, first month’s Monthly Recurring Mail Budget fees, and first month’s Monthly Data Acquisition fees at time of signing this Agreement; provided, however, that Service Provider travel expenses related to training, and MPI product training and travel expenses, will be invoiced separately. Dealer will pay all billed amounts upon receipt of invoice. All fees paid to Company shall be in U.S. dollars. Service Provider will invoice Dealer by postal mail, unless Dealer requests to be invoiced by email.
4.9. Taxes. All Service Provider fees are subject to applicable sales, use, excise or similar taxes, whether or not included at the time the fees are billed. Dealer assumes exclusive liability for, and will pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Licensed Services except for taxes based on the net income of Service Provider. Service Provider’s invoice or Dealer’s OEM parts statement may include any such taxes that Service Provider or Dealer’s OEM determines it is obligated to collect from Dealer with respect to the Licensed Services, and Dealer agrees to timely remit the same to Service Provider or Dealer’s OEM.
5. Desired Set-Up Date. Desired Set-Up Date means the date which Service Provider will initiate data integration with Dealer’s DMS, triggering all One-Time Investment fees and Monthly Data Acquisition fees, and Service Provider will commence setting up Dealer’s access to Licensed Services. Dealer will execute any additional documents and supply additional information as deemed necessary by Service Provider to commence Monthly Data Acquisition and Dealer’s access to Licensed Services, and notwithstanding Dealer’s delays to provide such necessary information to Service Provider, Dealer will pay all One-Time Investment and Monthly Data Acquisition fees, regardless of Dealer’s request for cancellation following the Desired Set-up Date.
6. Cancellation. Service Provider will only accept dealer’s cancellation requests by email from a dealer principal or general manager to: email@example.com. Service Provider will acknowledge receipt of Dealer’s cancellation notice. Should a dispute arise regarding whether Dealer submitted a cancellation notice, the Dealer shall bear the burden of supplying a copy of Service Provider’s acknowledgment of receipt of Dealer’s cancellation notice email. Dealer’s request for cancellation will commence a thirty (30) day cancellation notice period. All cancellation requests will be processed the last business day of the month following the end of the thirty day cancellation notice period (e.g. cancellation notice received and acknowledged by Service Provider on January 25th, will be processed on the last business day of February). If Dealer rescinds its cancellation request at any time, Dealer may incur fees. If Service Provider provides Dealer with any equipment necessary to delivery of Licensed Services, then within three (3) days after the termination date of this Agreement, Dealer shall return to Service Provider, at Dealer’s cost, all equipment not purchased.
7. Confidentiality. Dealer shall cause its users, parent, subsidiaries, affiliates, employees, agents and independent contractors, to keep confidential any and all proprietary information of Service Provider and its licensors acquired in connection with this Agreement, and not publish or disclose in any manner whatsoever such proprietary information to any other person nor use such proprietary information except as expressly set forth herein. Any proprietary information of Service Provider shall remain the property of Service Provider. Dealer shall return to Service Provider and its licensors upon request following termination of this Agreement, or destroy upon such request, any proprietary information supplied by Service Provider under this Agreement to Dealer and/or its users, parent, subsidiaries, affiliates, employees, agents or independent contractors, or acquired through use of the Licensed Services. Dealer acknowledges and agrees that: (i) irreparable injury will result to Service Provider and its licensors in the event of breach by Dealer of this obligation of confidentiality; (ii) the remedy at law for such breach is inadequate; (iii) in addition to any money damages for any such breach, Service Provider and its licensors shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages, and; (iv) that Service Provider nor its licensors shall not be required to post bond as a condition of such relief.
8. Indemnification. Dealer shall defend, and indemnify Service Provider, and its licensors, affiliates, suppliers, parent, subsidiaries, employees, agents and independent contractors, from and against any and all claims, losses, damages, liabilities, counterclaims, costs or expenses (including reasonable attorneys’ fees), whether asserted judicially or administratively, arising out of or related to: (i) breach by Dealer or any of its users of any terms of this Agreement, or applicable law; (ii) unauthorized disclosure of any information, content or materials accessed through the Licensed Services, or; (iii) negligence by Dealer or any of its users related to the performance of obligations under this Agreement.
9. Ownership of Proprietary Rights. Dealer may have feedback, suggestions, or comments that may be incorporated into the Licensed Services and related intellectual property. Service Provider and its licensors may, in their sole discretion, decide to incorporate some or all of Dealer’s feedback, suggestions, or comments into the Licensed Services or related intellectual property. Service Provider and its licensors shall own exclusively and in perpetuity all worldwide right, title and interest in and to the Licensed Services, including any and all versions of the Licensed Services and related intellectual property, including enhancements, modifications, upgrades, customizations or derivative works of the Licensed Services, including any enhancements suggested by Dealer. Dealer hereby assigns all of their right, title and interest in any such enhancements suggested to Service Provider or its licensors. Dealer will execute such documents as may be deemed reasonably necessary to accomplish the objectives of this paragraph. The Licensed Services, and any furnished work or materials created in the delivery of the Licensed Services, are not considered “work for hire” under copyright laws. Service Provider owns the Licensed Services, and the results provided to Dealer in connection with this Agreement.
10. Copyright and Trademark Notice. All works of authorship comprising the Licensed Services as existing and created for Dealer, along with the results provided to Dealer hereunder, are owned by Service Provider and its respective licensors, affiliates or suppliers as applicable, and may not be stored, copied, altered, distributed, decompiled, disassembled or reverse engineered, in whole or in part in any manner, without Service Provider’s prior written consent except as permitted by applicable law. All trademarks and trade names used in connection with the Licensed Services are the property of Service Provider, except where such trademarks and trade names identify the goods and services of licensors or third-party providers, which are the trademarks of their respective owners. Dealer hereby licenses all content and material provided to Service Provider for its use in the Licensed Services, in accordance with and subject to the terms of this Agreement.
11. DISCLAIMER OF WARRANTIES. NEITHER SERVICE PROVIDER NOR ITS LICENSORS, AFFILIATES OR SUPPLIERS ARE RESPONSIBLE FOR ANY ERRORS IN OR OMISSIONS FROM THE INFORMATION CONTAINED IN OR ACCESSED THROUGH, OR RESULTS OBTAINED FROM, THE LICENSED SERVICES. ALL INFORMATION AND RESULTS OBTAINED THROUGH THE LICENSED SERVICES ARE PROVIDED “AS IS” TO DEALER WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. ALL WARRANTIES AND CONDITIONS IMPLIED BY LEGISLATION ARE HEREBY DISCLAIMED BY SERVICE PROVIDER, FOR ITSELF AND ON BEHALF OF EACH SUCH THIRD-PARTY PROVIDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICE PROVIDER DISCLAIMS FOR ITSELF AND ON BEHALF OF EACH SUCH THIRD-PARTY PROVIDER, ANY REPRESENTATION OR WARRANTY THAT THE LICENSED SERVICES WILL BE DELIVERED WITHOUT INTERRUPTION OR BE ERROR-FREE OR THAT THE LICENSED SERVICES MEET DEALER’S REQUIREMENTS. FURTHERMORE, NEITHER SERVICE PROVIDER NOR ANY SUCH THIRD-PARTY PROVIDER WILL BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECTS IN THE LICENSED SERVICES, OR FOR THE INCOMPATIBILITY BETWEEN THE LICENSED SERVICES AND THE DEALER’S BROWSER OR OTHER SITE ACCESSING PROGRAM, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY DEALER.
12. LIMITATION OF LIABILITY. EXCEPT AS MAY BE OTHERWISE EXPRESSLY PROVIDED BY WRITTEN AGREEMENT BETWEEN SERVICE PROVIDER AND DEALER, NEITHER SERVICE PROVIDER NOR ANY SUCH THIRD-PARTY PROVIDER WILL HAVE ANY TORT, CONTRACT OR ANY OTHER LIABILITY TO DEALER AND/OR ANY THIRD PARTY ARISING IN CONNECTION WITH ACCESS TO OR USE OF (OR INABILITY TO USE) THE LICENSED SERVICES, OR RELIANCE ON ANY INFORMATION, RESULTS OR SERVICES PROVIDED BY THE LICENSED SERVICES. NEITHER SERVICE PROVIDER NOR ANY SUCH THIRD-PARTY PROVIDER WILL UNDER ANY CIRCUMSTANCES BE LIABLE TO DEALER AND/OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, FOR ANY LOST PROFITS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SERVICE PROVIDER’S, OR ANY SUCH THIRD-PARTY PROVIDER’S AGGREGATE LIABILITY FOR DAMAGES IN ANY AND ALL ACTIONS, ARISING OUT OF OR IN CONNECTION WITH EACH LICENSED PRODUCT, EXCEED THE FEES AND CHARGES DUE TO SERVICE PROVIDER IN THE PRECEDING ONE MONTH UNDER THIS SERVICE AGREEMENT. DEALER ACKNOWLEDGES AND AGREES THAT SERVICE PROVIDER’S PRICING IS PREDICATED ON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
13. LEGAL COMPLIANCE. SERVICE PROVIDER, ITS LICENSORS, AFFILIATES AND SUPPLIERS, MAKE NO REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, THAT THE LICENSED SERVICES UNDER THIS SERVICE AGREEMENT ARE COMPLIANT WITH ANY LAW, RULE, REGULATION, STATUTE OR OTHER LEGAL REQUIREMENT. IN NO WAY DOES ANY CONTENT PROVIDED BY SERVICE PROVIDER, ITS LICENSORS, AFFILIATES OR SUPPLIERS, (SUCH CONTENT INCLUDING, WITHOUT LIMITATION, ADVERTISING, MARKETING MATERIALS, OR DISCLAIMERS) CONSTITUTE LEGAL ADVICE. NEITHER SERVICE PROVIDER NOR ITS LICENSORS, AFFILIATES OR SUPPLIERS ARE ENGAGED IN THE PRACTICE OF LAW OR IN PROVIDING LEGAL OR COMPLIANCE SERVICES.
14. Assumption of Risk. Dealer acknowledges that use of the Licensed Services represents an assumption of risk and that Service Provider, its licensors, affiliates and suppliers do not underwrite or assume Dealer’s risk in any manner by providing access to and supporting Dealer’s use of the Licensed Services. Dealer’s content, correspondence and business dealings with its customers through use of the Licensed Services, regardless of whether the content is present within the Licensed Services or accessed via the Licensed Services through third party data providers, are solely between Dealer and its customers. Dealer’s content, correspondence and business dealings with its customers includes, without limitation, Dealer’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. Dealer acknowledges and understands that the “Essentials” software application of the Licensed Services is a prerecorded customer notification program consisting of triggered variable content electronic and print vehicle service related communications to vehicle owners, based on DMS related customer transactions and owner-specific vehicle service history information, and requires the use of an Automatic Telephone Dialing System, as that term is defined under the Telephone Consumer Protection Act.
15. Dealer Legal Compliance. DEALER IS SOLELY RESPONSIBLE FOR THE LEGAL COMPLIANCE OF ALL ITS CONTENT, MATERIALS AND INFORMATION CREATED AND TRANSMITED WHILE USING THE LICENSED SERVICES, such as, without limitation, email campaigns, telephone scripts, or disclaimers, as transmitted through the Licensed Services by any medium of communication. Service Provider reserves the right, but will have no obligation, to pre-screen, review, flag, filter, modify, refuse or remove any or all Dealer content from any of the Licensed Services, in Service Provider’s sole discretion. Dealer is solely responsible for all integration of the Licensed Services with Dealer selected third party providers, including such third-party provider legal compliance, such as third-party call centers. Dealer bears the sole responsibility for managing its list of customers relayed to Service Provider, and ensuring that proper “unsubscribe”, “do not call”, and “do not contact” protocols are in use. Dealer understands that the list of Dealer customer opt-outs processed by and within the Licensed Services may be requested by Dealer at any time. Dealer will comply with applicable state and federal laws and regulations governing advertising, electronic communications and solicitations, and telemarketing including but not limited to Section 5 of the FTC Act (15 U.S.C. Section 45), the CAN-SPAM Act (15 U.S.C. Sections 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. Sections 1601-1608), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. 310.1, et seq.), and the Federal Communications Commission telemarketing regulations (47 C.F.R. 64.1200 et seq.).
17. Privacy and Safeguarding of Dealer’s Customer Information. Service Provider presently maintains, and will continue to maintain, reasonably appropriate physical, electronic and procedural safeguards to guard all information and data relating to Dealer’s customers to which Service Provider has access pursuant to the terms of this Agreement. Such safeguards shall include appropriate measures designed to: (i) protect the security and confidentiality of such information, (ii) protect against anticipated threats or hazards to the security or integrity of such information, and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer of Dealer. Dealer will implement similar safeguards to protect all of Dealer’s customer data. Service Provider will share Dealer’s customer information as permitted by law, and with authorized third parties only as necessary to perform the Licensed Services and ancillary services ordered by Dealer in a Service Order, or to enable third party services that Dealer contracted for with third parties. Further, Service Provider may share certain Dealer customer information and Dealer data related to use of Licensed Services with Dealer’s brand OEM as applicable or as requested by Dealer’s OEM. NOTICE TO NORTH CAROLINA DEALERS: THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.
18. Notices. Service Provider will only accept dealer’s cancellation requests by email as provided in the Cancellation section herein. Dealer’s request for service or repair via e-mail is sufficient. 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 Service Order 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.
19. Interpretation. This Agreement is the result of negotiations between the parties, with each party having been given the opportunity to have it reviewed by their respective legal counsel, and it shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument. The addendums referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
20. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
21. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. Entire Agreement. This Agreement, together with Service Provider’s End User License Agreement (“Service Provider EULA”) for Licensed Services, and any end user license agreement required by Service Provider’s third party licenses (“Third Party EULA”) for Licensed Services, which Dealer will be required to review and accept upon accessing the Licensed Services, and any other applicable Sales Order or document related to Licensed Services 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. Service Provider reserves the right to change, or add new provisions to the Service Provider EULA at any time to address new requirements under applicable laws, regulations, or contractual commitments of Service Provider, changes in business requirements or otherwise as Service Provider deems necessary, in its sole discretion, to protect the Licensed Services, Dealer’s customer information, or Service Provider’s business interests. If Service Provider makes any changes to its Service Provider EULA, Service Provider will provide Dealer with notice of such changes by presenting the changed EULA for Dealer’s review and acceptance upon accessing the Licensed Services. Dealer’s acceptance of any Service Provider EULA at any time after the Effective Date herein shall constitute acceptance of such new or changed terms.
23. Waiver; Amendment; Cumulative Remedies. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
24. Assignment. The Parties’ obligations hereunder are binding on their permitted successors and permitted assigns. Neither Party may assign any of its rights or delegate any of its obligations hereunder, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that either Party may assign this Agreement and the license hereunder to a successor in interest to such assigning Party’s business, whether by merger, stock or asset sale, or acquisition, as long as such assigning Party provides prompt written notice to the other Party of any such assignment and the assignee assumes in writing or by operation of law, all of the Assigning Party’s obligations under this Agreement. Any purported assignment or delegation in violation of this Section shall be null and void.
25. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of this Agreement, including but not limited to, contract, equity, tort, fraud, and statutory claims, shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement.
26. Force Majeure. Neither Service Provider nor its licensors, affiliates or suppliers, shall be liable or responsible to Dealer, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Service Provider’s reasonable control, including, without limitation: 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.
27. Signature. Each party may sign this Agreement using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies. Dealer’s signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission, shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
28. Online Trade-in Tools. If Dealer subscribes to one or more Black Book® online trade-in tools, Dealer understands and agrees that Dealer’s use of such online trade-in tools shall be subject to, and Dealer agrees to the additional terms and conditions set forth at, http://www.intelliprice.com/VeretechTC/TermsofUse.htm, which are incorporated herein by reference and made a part of the Agreement. If Dealer subscribes to one or more Kelley Blue Book® online trade-in tools, Dealer understands and agrees that Dealer’s use of such online trade-in tools shall be subject to, and Dealer agrees to the additional terms and conditions set forth at, http://b2b.kbb.com/atcleaddriver, which are incorporated herein by reference and made a part of the Agreement. If Dealer subscribes to one or more N.A.D.A. Official Used Car Guide® online trade-in tools, Dealer understands and agrees that Dealer’s use of such online trade-in tools shall be subject to, and Dealer agrees to the additional terms and conditions set forth at http://www.nada.com/b2b/Support/LicenseAgreement.aspx.
29. Additional Terms Applicable to CRM. If Dealer orders CRM services in a Service Order, then the sub-provisions of this CRM section shall apply as applicable to the CRM services ordered.
29.1. DirectDesk. If Dealer utilizes DirectDesk services within the CRM as part of the Licensed Services, then this section shall apply. Customer agrees to be responsible to provide to Market Scan, on a timely, basis all regional and non-regional data regarding manufacturer and vehicle rebate, incentive, lease and or retail finance information as it becomes available. Customer further agrees to provide Market Scan with Customer’s electronic access to rebate, incentive, lease and retail finance data by providing Market Scan with valid login credentials to all applicable manufacturer and lender portals. Every Market Scan customer has a unique account and a unique database. Customer is providing this login information strictly to allow Market Scan to populate the information contained in customer’s unique, individual Market Scan database on Customer’s behalf. The lease, finance and cash purchase transaction data and calculations for new and used automobiles and related materials are used under license from Market Scan Information Systems, Inc. and are protected under international and U.S. copyright laws. Its reproduction or the production of derivative works therefrom without the express permission of Market Scan Information Systems, Inc. is prohibited. Market Scan®, mScan™ and mDesking® are trademarks of Market Scan Information Systems, Inc.
29.2. XRM Tracker. If Dealer utilizes XRM Tracker services within the CRM as part of the Licensed Services, then this section shall apply. Dealer acknowledges that Service Provider is a third-party service provider to Edmunds.com®, subject to Dealer’s agreement with Edmunds.com. Service Provider will provide Dealer Data to Edmunds.com to use in market analysis and generate market intelligence data, and will add pixel/beacons or analytics scripts to certain out-bound electronic communications, whereby Service Provider and Edmunds.com will jointly update the Dealer’s customer journey metrics.
29.3. Call Tracking. If Dealer utilizes any Call Tracking third party provider services within the CRM as part of the Licensed Services, then this section shall apply. Dealer acknowledges its use of the call tracking service in connection with the CRM Licensed Services require that Dealer provide all necessary notices, and obtain all necessary consents as required by applicable call recording laws and regulations, and Dealer hereby represents and warrants to provide and obtain such notices and consents.
29.4. Inventory Management. If Dealer utilizes any Inventory Management services within the CRM as part of the Licensed Services, then this section shall apply. Dealer’s use of Inventory Management services authorizes Service Provider to continuously access Dealer’s inventory data for the duration of the Term. Service Provider will access Dealer’s inventory directly through use of CRM or through Dealer’s inventory management third party provider. If Dealer uses a third-party provider, Dealer will obtain all necessary consents to authorize Service Provider’s access and use of Dealer’s inventory data. Dealer acknowledges that Service Provider has no connection to Dealer’s use of third party Inventory Management services in purchasing or selling vehicles. Dealer bears the sole responsibility for reliance on all provided Inventory Management services, and Service Provider has no responsibility for any errors that may result from inventory extractions and postings.
29.5. Desking. If Dealer utilizes the CRM’s desking tools, including credit reporting tools, as part of the Licensed Services, then this section shall apply. Dealer hereby represents and warrants its compliance with all applicable federal and state laws and regulations related to the use of the CRM’s desking tools, including without limitation: Consumer Leasing Act, Credit Practices Rule, Equal Credit Opportunity Act, Fair Credit Reporting Act, Risk-Based Pricing Rule, and Truth in Lending Act. Dealer bears the sole responsibility for reliance on all provided Desking services, and Service Provider has no responsibility for any errors in Desking results.
30. Additional Terms Applicable to Direct Mail. If Dealer orders direct mail products in a Service Order, then the sub-provisions of this Mail section shall apply.
30.1. Dealer Representations and Warranties. Dealer on its behalf and on behalf of each of its users, represents, warrants and covenants to Service Provider that in connection with this Agreement: (i) it will review all mail products produced pursuant to this Agreement, and approve final proof’s prior to mailings; (ii) the execution of this Agreement, and 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 Dealer; (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.
31. Additional Terms Applicable to Recall Data. If Dealer orders Recall Data in a Service Order, then the sub-provisions of this Recall Data section shall apply.
31.1. Recall Data may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control. Service Provider makes no warranty that Recall Data will be uninterrupted or error free, and no warranty as to the accuracy or results that may be obtained from use of the Recall Data services. Recall Data services are provided “as-is” and Service Provider and its third-party providers disclaim all warranties, express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
32. Additional Terms Applicable to MPI. If Dealer orders MPI in a Service Order that is provided via a third party, then the sub-provisions of this section shall apply.
32.1. Service Provider provides MPI to Dealer through the license granted by IFM America’s Inc (“IFM”). IFM hereby agrees to provide Dealer access to the selected Licensed Services for the specified dealership location(s)/rooftop(s) herein, under a non-exclusive, non-transferable, non-sublicensable, revocable license during the term of an applicable Service Order, in accordance with and subject to the terms of this Agreement.
32.3. The Term commences on the date of service activation, continuing until terminated as provided herein. Following the initial term, the term of this Agreement will automatically renew for additional renewal terms equal to the initial term, unless either party gives the other party thirty (30) days written notice prior to the end of the then-current term, with IFM reserving the right to revise any Fees pursuant to the terms of this Agreement.
33. Additional Terms Applicable to Confident Financial Solutions (“CFS”). If Dealer orders CFS in a Service Order, then the sub-provisions of this section shall apply.
33.1. Dealer’s customer application, the repair funding process, and the CFS partnership with Dealer and applicable service center payments shall be governed by the CFS Service Center Agreement between CFS and Dealer.
33.2. The CFS Service Center Agreement terms and conditions will at all times forms a binding agreement between CFS and each Dealer, which are located at https://mycfsapp.com/terms_and_conditions. To the extent of any inconsistency between the CFS Service Center Agreement terms and conditions and the terms of this Agreement, the terms and conditions of the CFS Service Center Agreement shall control the business relationship between CFS and Dealer.
34. Additional Terms Applicable to Trade-in Valet (“TIV”). If Dealer orders TIV in a Service Order, then the sub-provisions of this section shall apply.
34.1. TIV Term. The TIV Services are provided based on the initial term agreed upon in the Service Order and will automatically renew for successive ninety (90) day terms, unless either party gives the other party ninety (90) days written notice prior to the end of the then-current term. If Dealer terminates the TIV Services early, prior to Term expiration, then Dealer will pay the remainder of contracted Term, without regard to use of the TIV Services or lack thereof.
34.2. TIV Services. “Licensed Services” are used to generally describe all of Service Provider’s software and non-software applications covered under this Agreement; however, for the sake of clarity, the TIV Services are standalone individualized vehicle appraisal services that collect vehicle information through a website application and Dealer facing communication portal. Notwithstanding use of the phrase “Licensed Services” herein, a license to software is not provided in delivering the TIV appraisal services.
34.3. Dealer will only use customer and vehicle information obtained through the Licensed Services for the sole purpose of communicating with customers about the purchase of their vehicle, and Dealer’s potential sale of a vehicle to the customer. Dealer will not sell or transfer any customer information derived from the Licensed Services to a third party for marketing or any other purpose.
34.4. Dealer is solely responsible for accurately disclosing the vehicle condition into the Licensed Services in accordance with the National Auto Auction Association Arbitration Policy, effective April 17, 2017, 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.
34.5. As part of the Licensed Services, Dealer may elect to have Service Provider purchase a vehicle from Dealer for the appraised amount issued by the Licensed Services (“Buy-Back Option”), if all of the following conditions are satisfied:
34.5.1. Appraisals issued to a potential consumer by the Licensed Services are valid for the Buy-Back Option for ten (10) calendar days, with such 10-day period commencing on the date of appraisal;
34.5.2. Upon consumer presenting their appraised vehicle to Dealer within the 10-day period, or upon Dealer requesting a Dealer vehicle appraisal (“Dealer Request”), Dealer is solely responsible for ensuring that the vehicle condition provided into the Licensed Services is a true representation of the actual vehicle condition.;
34.5.3. Dealer may exercise the Buy-Back Option by providing notice to Service Provider, with acknowledgement of receipt, for three (3) calendar days of either (i) the date the consumer presents their vehicle to Dealer for trade-in at the Licensed Services generated appraisal amount, or (ii) the date the Dealer receives a Licensed Services generated re-appraised amount following disclosure of additional vehicle conditions initially undisclosed by the consumer, or (iii) the date the Dealer receives an appraisal from a Dealer Request. Such 3-day period will commence on the date specified above in either (i), (ii), or (iii);
34.5.4. Following Dealer’s notice to Service Provider to exercise Buy-Back Option within such 3-day notice period, Dealer must deliver the vehicle to a Manheim or ADESA facility for a third-party Condition Report, at Dealer’s cost, within three (3) calendar days, with such 3-day period including the date of notice, and where Dealer will remain responsible for transit and ownership of the vehicle, and;
34.5.5. If the third-party Condition Report confirms the vehicle condition as provided by Dealer to the Licensed Services to generate the appraisal, then following Service Provider receipt of vehicle title, Service Provider will pay Dealer the final appraised amount generated by the Licensed Services.
34.6. Service Provider reserves the right to modify or amend the Buy-Back Option as outlined herein at its sole discretion by providing Dealer with notice via email to the point of contact stated in the Service Order, or via monthly invoice in the normal course of business. Dealer’s continued use of TIV for a 10-day period following Service Provider’s notice of Buy-Back Option modifications or amendments will constitute Dealer’s acceptance of such modifications or amendments.
34.7. Service Provider’s receipt of Dealer’s request to cancel the Trade-in Valet Licensed Services terminates the Buy Back Option for the remainder of the Term. The Buy Back Option only applies to vehicles located within the continental United States and excludes Alaska and Hawaii.
35. Additional Terms Applicable to Voice Valet. If Dealer orders Voice Valet Services in a Service Order, then the sub-provisions of this section shall apply.
35.1. Dealer represents and warrants to Service Provider that for the customer lists Dealer elects to receive Voice Valet Services, that Dealer has received each customer’s “prior express consent,” or “prior express written consent” to receive automated voicemail drops, as 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.
36. Prior Agreements Superseded. If Dealer is subscribing to Licensed Services hereunder for which Dealer has an existing service agreement for an individual or combination of Licensed Services, then the terms applicable to such Licensed Services contained in this Agreement will supersede the terms applicable to such Licensed Services contained in any prior agreement between Dealer and Service Provider, as of the Effective Date.
37. 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 Service Order form or Sales Order form (other than an exception expressly set forth as such in a Service Order or Sales Order), the provisions in these general terms and conditions will prevail. In the event of any inconsistency or conflict between the statements in the body of this Agreement and the statements in Service Provider’s EULA, the statements in Service Provider’s EULA shall control the business relationship between Service Provider and Dealer.
38. Direct Integration with DMS. Dealer acknowledges that use of the Licensed Services depends on Dealer’s provision of certain DMS access information required by Dealer’s DMS company, Service Provider, its licensors, affiliates or suppliers from time to time as deemed necessary for continued delivery of the Licensed Services. Dealer’s DMS data is proprietary to Dealer and Service Provider will not view and/or alter Dealer’s DMS data without Dealer’s consent as supplied hereunder.
39. Additional Terms Applicable For DMS Integration via Third Party Integration Provider. By signing below, you state that you have the authority to make this request, and you authorize Service Provider or its third party DMS data provider, Superior Integrated Solutions Inc. (“SIS”) to access your system for the above areas via modem and/or network to our computer system for the purpose of doing work on your behalf. You agree that SIS will not be held liable for any system related issues not directly related to the programming request. Information on your system is proprietary to you and will not be viewed and/or altered without your consent. SIS will have access to your system within the specified parameters of this agreement and all work requested will be your sole property and will not be removed and/or altered without your consent. SIS will be using the software licensed by you for the sole purpose of this agreement. The undersigned 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 The undersigned 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.
40. Pre-Authorization to Use DMS Access Information. Dealer will facilitate Service Provider’s access to data files as deemed necessary by Service Provider for the migration of Dealer’s data to the Licensed Services, and Dealer authorizes its designated information technology personnel to provide all required DMS access information, specifically DMS Vendor, DMS Username, DMS Password, DMS IP Address, DMS Service Account, and DMS F&I Account, and hereby acknowledges and agrees that Service Provider, and SIS where applicable, will use the supplied information to access Dealer’s DMS. Dealer’s supplied DMS access information will be given the same legal authority as if stated in its entirety within this Section. Further, Dealer will execute any additional documents and supply additional information as deemed necessary by Service Provider for the provision of the Licensed Services.
41. Notice of DMS Change. Dealer must provide Service Provider with at least thirty (30) day notice prior to changing DMS types. Failure to provide such notice may result in additional processing fees.
42. Dealer Ownership of DMS Data. Dealer owns all individual customer data and dealership data it inputs into its DMS via the Licensed Services (“Data”). Notwithstanding any other agreement between Dealer and Service Provider to the contrary, Dealer hereby grants to Service Provider a non-exclusive, worldwide, royalty-free, non-transferable, perpetual license to use the Data, on the condition that the Data is used only for the following purposes (i) aggregating the Data for reasonable business use and derivative works related to Service Provider’s services, by de-identifying the Data and maintaining the privacy of personally identifying information, (ii) periodically testing up to 10% of Dealer customers with alternative versions of creative designs, where such assigned control group may be excluded from certain communications, and (iii) periodically surveying Dealer customers with research studies and offering the opportunity to participate in Service Provider’s online research panels. Service Provider may provide the Data to third-party service providers who provide services to Service Provider, or who assist Service Provider in improving its services to dealers, on the condition that each such third-party service provider executes an agreement to maintain the confidentiality of the Data.