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Terms & Conditions – DealerScience

TERMS AND CONDITIONS

A. Vendor has developed a suite of software programs which, among other things automatically generates lease quotes by data-mining and parsing relevant information, combined with user inputs;
B. Vendor is offering such suite of software programs as a service with the goal of improving functionality and efficiency of automotive dealerships;
C. Dealer is an automotive dealership and desires to acquire a license to use such service offered by Vendor;
D. The parties desire to enter into this Agreement to set forth the terms and conditions that will govern their relationship.

NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:

1. Definitions.
(a) “Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by or is under common control with that entity.
(b) “Confidential Information” means any and all non-public or proprietary information of a party (“Discloser”) disclosed to the other party (“Recipient”), including, but not limited to, this Agreement, the Service (and all components thereof including software, interfaces and Documentation, and all  Derivative Works thereof), technical information, know-how, specifications, designs, technology road maps, business plans, trade secrets, processes, methodologies, inventions, ideas, techniques, research, development, products, technologies, customer and vendor information, and business, financial and pricing information.
(c) “Data” means Dealer Data and Manufacturer Data.
(d) “Dealer Data” means any data, information, or material provided or submitted by Dealer to the Service in the course of using the Service.
(e) “Derivative Work” means any work of intellectual property incorporating, modifying, or made or derived from another work of pre-existing intellectual property which if authored, created, used, owned or possessed, other than pursuant to valid license, would constitute infringement under copyright law.
(f) “Documentation” means any user instructions, manuals or other materials, and on-line help files regarding the use of the Service that are made available by Vendor to Dealer in connection with the Service.
(g) “Manufacturer Data” means the financial and other data made available to Dealer from a manufacturer through Dealer’s access to the manufacturer’s web site, by virtue of Dealer’s contractual relationship with the manufacturer.
(h) “Intellectual Property Rights” shall mean all patent rights, copyrights, trademarks, trade secrets, trade dress rights, moral rights and other proprietary rights in any jurisdiction, and all applications and registrations therefor.
(i) “Permitted User” means employees, contractors and customers of Dealer who are authorized to use the Service and have been supplied user identifications and passwords or other access credentials by Dealer.
(j) “Service” means the specific edition of the service(s) described in further detail on Exhibit A which is operated and maintained by Vendor and accessible via the Site, to which Dealer is being granted access pursuant to this Agreement.
(k) “Site” means http://www.DealerScience.com or such other website, IP address, mobile app or authorized plugin or interface as Vendor may designate from time to time in its discretion.

2. Use of the Service.
(a) License Grant.  Subject to payment by Dealer of the Fees (as defined below) and subject to all the terms and conditions of this Agreement, Vendor hereby grants to Dealer, for the Term of this Agreement, solely for internal business use by its Permitted Users up to the maximum number set forth on Exhibit B, a limited, non-transferable, non-exclusive license to access and use the Service via the Site, and to provide access and use of the customer versions of the Service via Dealer’s primary domain.
(b) EULA.  Dealer acknowledges and agrees that each Permitted User will only be provided with access to the Service after such Permitted User has accepted the terms of Vendor’s then-current End User License Agreement, available at: http://www.dealerscience.com/EULA.htm (the “EULA”), which is incorporated into and made a part of this Agreement by this reference. Vendor may amend the EULA in its sole discretion from time to time. If Dealer does not require such Permitted User to accept the terms of the EULA and Dealer provides such Permitted User with access to the Service, Dealer hereby unconditionally and irrevocably guarantees to Vendor that such Permitted User shall comply with all of the terms and conditions of the EULA. Dealer shall hold Vendor and Vendor Parties, as defined below, harmless and indemnify Vendor and Vendor Parties for any and all costs, expenses, losses, damages and liabilities of any kind, including legal fees and costs, incurred or suffered by Vendor and Vendor Parties as a result of such Permitted User’s failure to comply with any of the terms and conditions of the EULA. Any failure of a Permitted User to comply with any of the terms and conditions of the EULA shall be considered a material breach of this Agreement. In the event of any conflict or inconsistency between this Agreement and the EULA, this Agreement will control.
(c) Restrictions.  Dealer shall limit access to the Service solely to Permitted Users up to the maximum number of users set forth on Exhibit B.  Dealer shall inform each Permitted User of the restrictions and requirements of this Agreement and the EULA, and Dealer shall remain solely responsible for each Permitted User’s compliance with all the terms of this Agreement and the EULA.  Except as otherwise expressly provided herein, Dealer shall not itself, or through any agent or other third party, and shall cause each Permitted User to not:
(i) copy, reproduce, disclose or publicly display the Service;
(ii) copy, reproduce, disclose or publicly display the Documentation other than backup or archival copies;
(iii) 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;
(iv) decompile, disassemble, reverse engineer or translate the Service or the Documentation;
(v) 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;
(vi) use the Service for the benefit of third parties or otherwise use the Service on a ‘service bureau’ basis;
(vii) 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;
(viii) 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 (“Applicable Law”);
(ix) remove, conceal or alter any identification, copyright or other proprietary rights notices or labels on the Service or Documentation; or
(x) directly or indirectly, ship, export or re-export the Service other than in accordance with the terms of this Agreement.

3. Payment.  Dealer agrees to pay Vendor the fees described on the Fee Schedule attached hereto as Exhibit B, as the same may be amended or supplemented from time to time upon notice to Dealer (collectively, the “Fees”) together with all reasonable out-of-pocket travel, living and ancillary expenses paid or incurred by Vendor or its personnel in connection with performing under this Agreement.  Amounts to be paid by Dealer under this Agreement shall be due on the dates set forth in Exhibit B, or, if not specified, thirty (30) days after date of invoice from Vendor.  Any late payment shall be subject to Vendor’s costs of collection (including reasonable legal fees and costs) and shall also bear interest at the rate of one and one-half percent (1.5%) per month (or part thereof) or, if lower, the highest rate permitted by Applicable Law until paid.  The Fees listed in this Agreement do not include taxes; if either party is required to pay sales, use, property, value-added, or other federal, state or local taxes based on the services provided or licenses granted under this Agreement (excluding taxes based on Vendor’s income), then such taxes shall be billed to and paid by Dealer.

4. Nonpayment and Suspension.  In addition to any other rights granted to Vendor herein, Vendor reserves the right to suspend or terminate this Agreement and/or Dealer’s access to the Service if Dealer’s account becomes delinquent and is not cured within thirty (30) days following receipt of notice of delinquency by Dealer.  Dealer will continue to be charged the Fees, including the applicable Monthly Subscription Fee set forth on Exhibit B, during any period of suspension.

5. Audits.  Vendor shall have the right to audit Dealer’s books and records to ascertain compliance with this Agreement upon five (5) business days written notice.  Dealer agrees to cooperate with Vendor’s audit and provide reasonable assistance and access to information and records.  If during the audit Vendor determines that Dealer is in breach of this Agreement, Dealer shall be responsible for Vendor’s costs in performing the audit, and, in addition to all other remedies available to Vendor at law or in equity, Vendor shall have the right to immediately terminate this Agreement.

6. Confidentiality.  The parties acknowledge and agree that each party may provide to the other Confidential Information in connection with their respective performance under this Agreement and, as such, each party may at times be acting as a Discloser, in which case the other party shall be the Recipient.  Both parties agree that any and all Confidential Information in any form or media obtained by a Recipient shall be held in strict confidence by Recipient and Recipient shall not copy, reproduce, or disclose such Confidential Information to third parties, other than Recipient’s employees or contractors who have a need to know such Confidential Information to facilitate performance under this Agreement and who are subject to written obligations of confidentiality which are at least as protective as those set forth herein.  Recipient shall use the same standard of care to protect Discloser’s Confidential Information that Recipient uses to protect its own most confidential information, but no less than a reasonable degree of care.  The obligations of confidentiality set forth in this Section shall not apply to any information which: (a) was known to the Recipient prior to the time of disclosure by or on behalf of the Discloser; (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of this Agreement or other wrongful act by the Recipient; (c) was lawfully received by Recipient from a third party without any obligation of confidentiality; or (d) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that Recipient shall give prompt written notice to Discloser to enable Discloser to seek an appropriate protective order.  The terms and conditions of this Section shall supersede the terms and conditions of any other non-disclosure agreement signed by the parties and shall survive the termination or expiration of this Agreement.

7. Data.  Dealer hereby acknowledges and agrees that the Service is a tool which facilitates the use of the Manufacturer Data.  Dealer confirms and represents that it has sufficient rights to access and use the Manufacturer Data in conjunction with the Service as contemplated herein.  Dealer hereby grants Vendor an irrevocable, non-exclusive, worldwide, royalty-free license to use the Data for purposes of providing and improving the quality of the Service as well as the other products and services of Vendor.  Dealer is responsible for obtaining all rights, permissions, licenses and consents required to furnish such Data to Vendor for use as described herein.  In addition, Dealer is responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of Data.  Dealer acknowledges that all Data will be accessible by Vendor (and its employees and agents), and by all Permitted Users of Dealer who are provided with account numbers and passwords or other credentials for the Service.  Vendor is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store or backup any Data.

8. Intellectual Property.  As between the parties, Vendor owns and shall retain all right, title and interest in and to the following (the “Vendor Intellectual Property”):  (a) all Confidential Information of Vendor (which includes, without limitation, the Service (including the software, interfaces and, the Documentation), and any other software, applications, technologies, inventions and other works of authorship developed by or on behalf of Vendor, alone or with others, whether created or developed prior to, during or after the Term of this Agreement); (b) any and all Derivative Works of the foregoing; and (c) any and all Intellectual Property Rights in and to any of the foregoing.  Dealer or its Permitted Users may provide feedback or suggestions to Vendor relating to the Vendor Intellectual Property, including ideas for new or improved products or technologies, product enhancements, processes, marketing plans or new product names (collectively “Feedback”). Dealer hereby irrevocably assigns, transfers and conveys to Vendor, exclusively and perpetually, all rights, title, and interests throughout the world that it may have or acquire in any Feedback, including all Intellectual Property Rights therein. Except for the limited rights expressly granted in this Agreement, Dealer is not granted any right, title or interest whatsoever in any of the Vendor Intellectual Property now or in the future.  Dealer agrees that it will not claim or assert title to, or attempt to transfer any title to, any of the foregoing.

9. Covenants.  Dealer covenants and agrees to (a) implement and maintain all such administrative, physical and technical safeguards as may be necessary to maintain the security of the Service and otherwise prevent unauthorized users from gaining entry or access to the Service; (b) use all commercially reasonable measures to prevent the introduction of viruses or other malicious code to the Service or the Site; (c) comply with all Applicable Laws; (d) notify Vendor immediately of any error or bug in the Service, or any unauthorized use of any account, password or other authentication mechanism, or any other known or suspected breach of security; and (e) notify Vendor immediately and use reasonable efforts to stop any copying or distribution of Data that Dealer knows or suspects is in violation of Applicable Law or the rights of any third party.

10. Warranties.  Each party represents and warrants to the other as follows:  (a) it is an entity duly organized, valid, existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has the corporate power to own its assets and properties and to carry on its business as currently conducted; (b) this Agreement is the legal, valid and binding obligation of such party, enforceable in accordance with its terms; and (c) the execution, performance and delivery of this Agreement by such party will not conflict with or violate or result in any breach of, or constitute a default under, any Applicable Law, contract, agreement or other obligation of such party.  In addition, Dealer represents and warrants that it has all necessary rights to grant the license in Section 7 hereof (Data) and neither the Data, nor use thereof by Vendor as contemplated in this Agreement, does or will infringe, misappropriate or otherwise violate the Intellectual Property Rights or other rights of any third party.

11. 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.  VENDOR HEREBY EXPRESSLY DISCLAIMS  ON BEHALF OF ITSELF, ITS AFFILIATES AND ITS AND THEIR EMPLOYEES, DIRECTORS, MEMBERS AND AGENTS (COLLECTIVELY, “VENDOR 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 VENDOR NOR ANY OF THE VENDOR 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 VENDOR OR ANY OF THE VENDOR 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, DEALER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS LIMITED TO CEASING USE OF THE SERVICE. THE SERVICE IS PROVIDED VIA THE INTERNET AND DEALER ACKNOWLEDGES AND AGREES THAT NEITHER VENDOR NOR ANY OF THE VENDOR 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 VENDOR NOR ANY VENDOR PARTIES ARE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. VENDOR FURTHER DISCLAIMS ANY LIABILITY WITH RESPECT TO THE DATA AND OUTPUT RESULTING FROM THE USE OF THE SERVICE.  DEALER ACKNOWLEDGES AND AGREES THAT DEALER IS SOLELY RESPONSIBLE FOR ITS USE OF ALL DATA AND OUTPUT FROM THE SERVICE, INCLUDING, WITHOUT LIMITATION, CONFIRMING THE ACCURACY THEREOF.  VENDOR EXPRESSLY RESERVES THE RIGHT, FROM TIME TO TIME IN ITS SOLE DISCRETION, TO ENHANCE, IMPROVE OR MODIFY THE SERVICE, IN WHOLE OR IN PART.

12. Indemnification.  Dealer agrees to indemnify, defend and hold harmless Vendor and each of the Vendor Parties from and against any third party claim, suit, demand or action for damages arising from: (a) any use of the Service, the Data or any output resulting from the use of the Service; (b) modification or alteration of the Service or the Documentation by anyone other than Vendor or otherwise expressly authorized by an authorized representative of Vendor in writing; (c) any infringement, misappropriation or other violation of a third party’s rights relating to the Data; (d) any virus, worms, spyware, back door, Trojan horse or other malicious code transmitted by Dealer or any Permitted Users or agents of Dealer; (e) any breach of this Agreement by Dealer or any Permitted Users or agents of Dealer; and (f) any failure of any Permitted User to comply with the terms and conditions of the EULA.  The applicable Vendor Parties shall have the right to be represented by, and have counsel appear, at its own expense, with respect to any such claim.  Dealer may not, without the prior consent of Vendor (which such consent shall not be unreasonably withheld) settle a claim subject to indemnification hereunder, if such settlement:  (i) includes any payment of monetary damages by any Vendor Party or injunctive relief binding on such Vendor Party, (ii) includes an admission of liability by any Vendor Party, or (iii) does not include a release of the Vendor Parties from all further liability with respect to such claim.

13. Limitation of Liability.  IN NO EVENT SHALL VENDOR OR ANY VENDOR 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.  SECTIONS 11 AND 13 HEREOF STATE DEALER’S SOLE AND EXCLUSIVE REMEDY WHATSOEVER FOR ANY ACTUAL OR ALLEGED HARM UNDER THIS AGREEMENT WHETHER IN CONTRACT, TORT OR OTHERWISE.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13 SHALL REMAIN FULLY EFFECTIVE EVEN IF THE REMEDIES AVAILABLE TO DEALER FAIL OF THEIR ESSENTIAL PURPOSE. NOTHING IN THIS SECTION SHALL LIMIT EITHER PARTY’S RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF.

14. Term.
(a) Term and Termination. This Agreement will commence on the Effective Date and continue for an initial period indicated on Dealer’s signed Registration Form (the “Initial Term”).  Thereafter, the Agreement will renew as indicated for additional periods as identified in Dealer’s signed Registration Form (each a “Renewal Term” and together with the Initial Term, collectively, the “Term”) and remain in full force and effect, until either party provides written notice to other party of its intent to terminate the Agreement at least thirty (30) calendar days prior to the expiration of the then-current term.  Notwithstanding the foregoing, this Agreement may be terminated prior to the expiration of the then-current term by either party upon a material breach by the other party which is not cured within thirty (30) days following the breaching party’s receipt of written notice from the non-breaching party describing the breach.
(b) Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted to Dealer hereunder shall immediately terminate and Dealer shall immediately cease use of the Service and return (or upon Vendor’s election in writing, destroy) all copies, complete or partial, of any Confidential Information of Vendor in Dealer’s possession, if any, and shall certify in writing to Vendor that all such materials have been returned, destroyed or deleted in accordance with this Agreement.  Those provisions of this Agreement which by their nature show the parties intended them to survive the termination or expiration of this Agreement shall survive any termination or expiration of this Agreement  (including, without limitation, Sections 2(c), 6, 7, 8, 11, 12, 13 and 15).

15. Miscellaneous.
(a) Assignment. This Agreement and the licenses granted herein, which are personal to Dealer, may not be sold, assigned, subcontracted, sub-licensed or otherwise transferred by Dealer, including as a result of a change of control or operation of law (each, a “Transfer”) without the prior written consent of Vendor.  Any attempted Transfer without such consent shall be void.  If Vendor consents to a Transfer, this Agreement shall be binding on Dealer’s successors and assigns.
(b) Relationship of Parties. In making and performing this Agreement, the parties are and shall act at all times as independent contractors, and nothing contained herein shall be construed or implied to create an agency, association, partnership or joint venture between the parties.  At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party.
(c) Force Majeure. Vendor shall not be liable or in default hereunder for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of Vendor or its contractors, agents or suppliers, including, but not limited to, utility or transmission failures, failure of the internet, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.
(d) Notices. All notices, demands and other communications hereunder shall be in writing and shall be hand-delivered, overnight couriered or mailed by certified mail, return receipt requested to the parties to this Agreement at the addresses herein and modified periodically in writing.
(e) Governing Law and Jurisdiction.  Except with respect to that body of law relating to conflicts of law, the laws of the State of California shall govern this Agreement.  The parties agree to submit to jurisdiction and venue of the state and federal courts located in Los Angeles County, California.  Any award made by a court in conjunction with litigation between the parties regarding this Agreement shall include an award of all reasonable attorneys’ fees and legal costs incurred by the party in whose favor the final decision is rendered.
(f) Counterparts. This Agreement may be executed in one or more counterparts, including facsimile or electronic signatures, each of which shall be deemed an original, but all of which shall constitute the same instrument.
(g) Severability. If any provision of this Agreement or the application thereof to any person or circumstances shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application thereof to any person or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforced to the fullest extent of Applicable Law.
(h) Waiver and Amendment. Except as provided below, this Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written agreement between the parties.  The waiver by any party hereto of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any subsequent breach.
(i) Publicity Reference. Vendor may include Dealer in its general listing of Dealers, reference lists, press releases, success stories and other marketing materials.
(j) Complete Agreement. This Agreement, which includes the EULA and all exhibits, schedules and attachments hereto, constitutes the complete Agreement between the parties with respect to the subject matter hereof and supersedes all previous communications and representations or agreements, either oral or written, with respect to the subject matter hereof.