HYUNDAI DEALER’S SERVICE ORDER FORM
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 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 $0.0525 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.
4.3. 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, and Monthly Data Acquisition. 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.
4.4. 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.
4.5. 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.
4.6. Payment Terms. Dealer will pay Service Provider a deposit to be applied to the invoice after Effective Date, 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.
4.7. 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.
- 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.
- Cancellation. Service Provider will only accept dealer’s cancellation requests by email from a dealer principal or general manager to:firstname.lastname@example.org. 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.
- Confidentiality. Dealer and Service Provider shall cause their users, parent, subsidiaries, affiliates, employees, agents and independent contractors, to keep confidential any and all proprietary information of Service Provider and Dealer and their 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, except Dealer may share confidential information with Hyundai Motor America. Any proprietary information of Service Provider shall remain the property of Service Provider. Any proprietary information of Dealer shall remain the property of Dealer. A party shall return to the other party and its licensors upon request following termination of this Agreement, or destroy upon such request, any proprietary information supplied by a party under this Agreement to the other party and/or its users, parent, subsidiaries, affiliates, employees, agents or independent contractors, or acquired through use of the Licensed Services or under this Agreement. Each party acknowledges and agrees that: (i) irreparable injury will result to a party hereunder and its licensors in the event of breach by a party 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, a party and its licensors shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages, and; (iv) that a party nor its licensors shall not be required to post bond as a condition of such relief.
- Indemnification. (a) 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 third party claims as a result of : (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) gross negligence or willful misconduct by Dealer or any of its users related to the performance of obligations under this Agreement. (b) Service Provider shall defend and indemnify Dealer, its licensors, affiliates, suppliers, parent, subsidiaries, employees, agents and independent contractors, from and against any and all claim, losses, damages, liability, counterclaims, costs or expenses (including reasonable attorneys’ fees), whether asserted judicially or administratively, arising out of or related to third party claims as a result of: (i) breach by Service Provider of any terms of this Agreement or applicable law; or (ii) Service Provider’s gross negligence or willful misconduct related to the performance of obligations under this Agreement.
- 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. Service Provider represents and warrants to Dealer that it has all necessary ownership, rights, and licenses to grant Dealer the license herein and provide the Licensed Services to Dealer, free and clear of any and all agreement, liens, adverse claims, encumbrances and interests of any person. Service Provider represents and warrants to Dealer that in all cases where the trademark, copyright or other intellectual property of a third party is used in connection with the Licensed Services, Service Provider has the written consent of said third party (through ownership rights or a valid, enforceable license) to use said intellectual property in the manner and to the extent so used and in the jurisdiction used. Service Provider further represents and warrants to Dealer that the use of the intellectual property of any third party as contemplated by this Agreement or the Licensed Services will not infringe upon the intellectual property rights of any third party.
- 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.
- 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, 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.
- LIMITATION OF LIABILITY. EXCEPT AS MAY BE OTHERWISE EXPRESSLY PROVIDED BY WRITTEN AGREEMENT BETWEEN SERVICE PROVIDER AND DEALER, NEITHER DEALER, SERVICE PROVIDER NOR ANY SUCH THIRD PARTY PROVIDER WILL HAVE ANY TORT, CONTRACT OR ANY OTHER LIABILITY TO ANY PARTY HEREUNDER 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 DEALER, SERVICE PROVIDER NOR ANY SUCH THIRD PARTY PROVIDER WILL UNDER ANY CIRCUMSTANCES BE LIABLE TO ANY PARTY HEREUNDER, 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 A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DEALER’S, 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. THIS SECTION 12 LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
- LEGAL COMPLIANCE. 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.
- 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.
- 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.).
- 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.
- 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.
- 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.
- Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Additional Terms Applicable to MPI. If Dealer orders MPI in a Service Order, then the sub-provisions of this section shall apply.
28.1. 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.
- 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.
- 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 (other than an exception expressly set forth as such in the Service 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 the Service Provider’s EULA, the statements in Service Provider’s EULA shall control the business relationship between Service Provider and Dealer.
- 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.
- 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.
- 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, 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.
- 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.
- 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.