DEALERSCIENCE, LLC END USER LICENSE AGREEMENT
BY CLICKING “I AGREE” OR USING THE SERVICE YOU AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THIS “EULA”). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, CLICK “I DO NOT AGREE” AND DO NOT USE THE SERVICE. USE OF THE SERVICE IS SUBJECT AT ALL TIMES TO THE TERMS AND CONDITIONS OF THIS EULA AND ALL APPLICABLE LAWS AND REGULATIONS. IF, AT ANY TIME, YOU NO LONGER WISH TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SERVICE. FOR THE PURPOSES OF THIS EULA, “YOU” AND “USER” SHALL MEAN THE INDIVIDUAL TO WHOM THE USERNAME AND PASSWORD USED TO ACCESS THIS EULA IS ASSIGNED OR, IF NO USERNAME AND PASSWORD HAS BEEN ASSIGNED, THE INDIVIDUAL ACCESSING THE SERVICE.
1. The Service. This EULA is a binding legal agreement between DealerScience, LLC (“DealerScience“) and User. This EULA contains the terms upon which DealerScience grants User a license to utilize DealerScience’s automotive dealership software which is provided as a service (the “Service”) and made available at http://www.DealerScience.com (the “Site”). User acknowledges and agrees that its rights to use and access the Service is based upon an agreement in place between DealerScience and the automotive dealership granting access to User (the “Dealership“), and User’s rights are subject to and conditioned upon the continued effectiveness of such agreement between DealerScience and the Dealership.
2. License Grant. Subject to all the terms and conditions of this EULA, DealerScience hereby grants to User, solely for the Dealership’s internal business use, a personal, limited, non-exclusive, non-transferable (with no right to sublicense), revocable license to access and use the Service and any related user documentation made available by DealerScience (the “Documentation“).
3. Restrictions. Except as otherwise provided herein, User agrees that it will not itself, or through any agent or other third party: (i) copy, reproduce, disclose or publicly display the Service or the Documentation other than backup or archival copies; (ii) directly or indirectly license, distribute, resell, rent, lease, subcontract, operate or otherwise make available to, or use for the benefit of, any third party the Service or the Documentation; (iii) decompile, disassemble, reverse engineer or translate the Service or the Documentation; (iv) modify the Service or Documentation, or develop any derivative works based upon the Service or Documentation, or build a competitive product or service using similar ideas, features, functions or graphics as the Service; (v) disclose any passwords or other security or authentication device with respect to the Service to any person other than the person to whom such passwords or other security or authentication device are properly issued hereunder; (vi) use the Service in a manner that is not contemplated in the Documentation or that constitutes a violation of any applicable law, rule or regulation; (vii) remove, conceal or alter any identification, copyright or other proprietary rights notices or labels on the Service or Documentation; or (viii) directly or indirectly, ship, export or re-export the Service other than in accordance with the terms of this EULA.
4. Confidentiality. “Confidential Information” means nonpublic information that DealerScience makes available, or has previously made available, to User in connection with this Agreement. Confidential Information includes, without limitation, all of DealerScience’s technology, websites, processes, know-how, software, data, passwords and other non-public materials, including the terms of this EULA. User will use commercially reasonable means to secure and maintain the confidentiality of the Confidential Information of DealerScience, which will include procedures at least as stringent as those User utilizes to protect its own Confidential Information. User will not use or disclose DealerScience’s Confidential Information, except as necessary to use the Services as authorized under this EULA or as otherwise agreed in writing by DealerScience.
5. Intellectual Property. DealerScience owns and shall retain all right, title and interest in and to the following: (i) all Confidential Information of DealerScience (which includes, without limitation, the Service (including the application, interfaces and, the Documentation), and any other software, applications, technologies, inventions and other works of authorship developed by DealerScience; (ii) any and all modifications, improvements, enhancements and derivative works of the foregoing; and (iii) any and all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to any of the foregoing. You may provide feedback or suggestions to DealerScience relating to the DealerScience Confidential Information, including ideas for new or improved products or technologies, product enhancements, processes, marketing plans or new product names (collectively “Feedback“). You hereby assign, transfer and convey to DealerScience, exclusively and perpetually, all rights, titles, and interests throughout the world that You may have or acquire in any Feedback, including all intellectual property rights therein.
6. DISCLAIMER. THE SERVICE AND DOCUMENTATION PROVIDED HEREUNDER ARE PROVIDED “AS-IS”, “WHERE-IS” AND “AS-AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. DEALERSCIENCE HEREBY EXPRESSLY DISCLAIMS ON BEHALF OF ITSELF, ITS EMPLOYEES, DIRECTORS, MEMBERS AND OTHER AGENTS (COLLECTIVELY, “DEALERSCIENCE PARTIES“) ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. NEITHER DEALERSCIENCE NOR ANY OF THE DEALERSCIENCE PARTIES REPRESENTS OR WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; NOR DOES DEALERSCIENCE OR ANY OF THE DEALERSCIENCE PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF THE SERVICE OR ANY DATA USED IN THE SERVICE. IN THE EVENT OF ANY PROBLEM WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS EULA IS LIMITED TO CEASING USE OF THE SERVICE. THE SERVICE IS PROVIDED VIA THE INTERNET AND USER ACKNOWLEDGES AND AGREES THAT NEITHER DEALERSCIENCE NOR ANY OF THE DEALERSCIENCE PARTIES OPERATE OR CONTROL THE INTERNET. AS SUCH, THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NEITHER DEALERSCIENCE NOR ANY DEALERSCIENCE PARTIES ARE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7. Indemnification. User agrees to indemnify, defend and hold harmless DealerScience and each of the DealerScience Parties from and against any third party claim, suit, demand or action for damages arising from: (i) any use of the Service, or any output resulting from the use of the Service; (ii) modification or alteration of the Service or the Documentation by anyone other than DealerScience or otherwise authorized by DealerScience in writing; (iii) any virus, worms, spyware, back door, Trojan horse or other malicious code transmitted by User or agents of User; and (iv) any breach of this EULA by User.
8. Limitation of Liability. IN NO EVENT SHALL DEALERSCIENCE OR ANY DEALERSCIENCE PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT OR SPECIAL DAMAGES OF ANY NATURE ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, INCLUDING WITHOUT LIMITATION, DAMAGES FROM INTERRUPTION OF BUSINESS, LOSS OF INCOME OR OPPORTUNITIES, LOSS OF USE OF THE SERVICE, LOSS OF DATA, COST OF RECREATING DATA OR COST OF CAPITAL. USER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS EULA IS LIMITED TO CEASING USE OF THE SERVICE. THIS SECTION STATES USER’S SOLE REMEDY FOR HARM UNDER THIS EULA WHATSOEVER, IN CONTRACT OR TORT. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL REMAIN FULLY EFFECTIVE EVEN IF THE REMEDIES AVAILABLE TO YOU FAIL OF THEIR ESSENTIAL PURPOSE.
9. Termination. This EULA shall become effective once you have clicked the “Accept” option or otherwise accessed or used any portion of the Service. In the event User fails to comply with the terms of this EULA, DealerScience may immediately terminate this EULA and User’s rights to use or access the Service.
10. Governing Law and General Provisions: This EULA shall be governed by and construed in accordance with the laws of the State of Massachusetts without regard to conflict of law principles, and the parties irrevocably consent to the jurisdiction and venue of the appropriate courts in the Commonwealth of Massachusetts. DEALERSCIENCE MAY, AT ANY TIME AND FROM TIME-TO-TIME, CHANGE THE TERMS OF THIS EULA. ANY CHANGES WILL BE POSTED ON THE SITE. IF USER DOES NOT ACCEPT THE TERMS OF ANY MODIFICATION, USER’S ONLY RECOURSE IS TO TERMINATE THE EULA BY CEASING USE OF THE SERVICE. CONTINUED USE OF THE SERVICE BY USER WILL CONSTITUTE COMPLETE ACCEPTANCE OF THE THEN-CURRENT VERSION OF THIS EULA POSTED ON THE SITE. This EULA, which includes all schedules and attachments hereto, constitutes the complete EULA between the parties and supersedes all previous communications and representations or agreements, either oral or written, with respect to the subject matter hereof.