TERMS OF SERVICE
Last updated as of: October 29th, 2018
1. TERMS OF SERVICE
1.1. The following terms of service (this “ToS”) apply to the order form, subscription agreement, services agreement or other agreement incorporating this ToS by reference (“Terms Document”) between automotiveMastermind, Inc. (“aM”) and the customer set forth therein (“Customer”). Any such Terms Document, together with these Terms, is referenced herein as this “Services Agreement” between aM and Customer. For purposes hereof, a Customer may be a subscriber to the Services (“Subscriber”) or a dealer group under which certain Subscribers that are Controlled Dealerships operate (“Dealer Group”). Capitalized terms not defined in the Terms Document are defined in Section 28 or elsewhere in this ToS. In the event of any conflict between any definition, term or condition included in or incorporated into this ToS and any definition, term or condition set forth in a Terms Document, the Terms Document shall govern.
1.2.PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING ANY SERVICES. CUSTOMER AGREES TO BE FULLY BOUND BY THIS SERVICES AGREEMENT (INCLUDING THIS TOS). IF CUSTOMER DOES NOT AGREE TO THIS SERVICES AGREEMENT (INCLUDING THIS TOS), THEN CUSTOMER SHOULD NOT ACCESS OR USE OR CONTINUE TO USE ANY OF THE SERVICES.
2. UPDATES TO THESE TERMS OF SERVICE
2.1. This ToS may be updated from time to time, provided that aM notifies Customer in advance of any material changes (a) by posting the revised ToS (the date of such posting shall be deemed the date of notification), as applicable; or (b) to the extent such change(s) materially and adversely affect the rights of Customer, by providing written notice of the change(s) by email to the Subscriber’s Authorized Representative. Modifications shall go into effect on the tenth (10th) Business Day following the day on which Customer is notified of any such changes pursuant to Section 1.1 of these Terms (a “Modification Date”).
2.2. In the event Customer notifies aM of its rejection of such modification within the review period set forth above (such notice, a “Modification Rejection Notice”) and such modification remains in effect with respect to the Subscriber (i.e. aM does not promptly notify Customer that application of the rejected change(s) has been waived), the modification proposed by aM will not go into effect and the terms and conditions of this Services Agreement will continue in full force and effect without such modification.
2.3 If Customer has previously accepted any prior version of this ToS, Customer hereby acknowledges and agrees that, unless an agreement by and between Customer and aM expressly indicates otherwise, the current version of this ToS shall be deemed to have replaced any prior versions that Customer may have acknowledged and/or agreed to.
TERMS APPLICABLE TO SUBSCRIBERS ONLY
3. THE SERVICES
3.1. Description of the Services
3.1.1. aM Setup: Installation/Setup of the Services at Subscriber’s location. Includes User Setup, Process Setup, Testing, User Training. aM Setup is a Service that Subscriber only needs to subscribe for once regardless of how long this Services Agreement remains in effect.
3.1.2. aM Subscription and aM Data: aM Subscription is the required subscription to access aM’s Services platform. aM Data is Digital Data Maintenance and Enhancement of obtained Data. aM Data Includes past 7 years of new and pre-owned transactions. Excludes any wholesale, auction or straight trade purchase transactions. Overall Database Cleansing, CASS, NCOA, VIN Explosion, Household Demand Indicator, DRUS (DMV Registration Update Services), Trade Books, Sales Performance Analytics and Reports. aM Subscription and aM Data must be ordered together and one Fee covers both Services.
3.1.3. aM Mail Marketing and aM Email Marketing: Direct marketing to all customers predicted to be in buying cycle, and Householder Demand Indicator. Includes lease, finance and cash buyers. aM Mail Marketing and aM Email Marketing must be ordered together and one Fee covers both services. aM eMail Marketing provides recipients of e-mails with the ability to opt out of receiving future emails in accordance with applicable laws. aM and Subscriber shall work jointly to ensure that each has an updated list of all recipients who have opted out.
3.2. Term Options. Except for aM Setup, which is a one-time service, each of the Services is offered on a monthly term. In addition, 1-year, 2-year, and 3-year term options are available for aM Subscription and aM Data.
3.3. Required Services. aM Setup is a required Service for first-time Subscribers unless otherwise waived by aM. aM Subscription and aM Data are required Services at all times: to become or remain a Subscriber, Subscriber’s Subscription Agreement must include a subscription for aM Subscription and aM Data and the cancellation of either or both will automatically halt the provision of any other Services.
3.4. Optional Services. Any Service not listed in Section 3.3 is an optional Service and may be added or canceled from time to time.
4. RIGHT TO USE SERVICES; AUTHORIZED USERS
4.1. Subject to the terms and conditions of this Services Agreement (including the applicable Terms Documents), aM grants to Subscriber a non-exclusive, non-transferable right to permit its Authorized Users to access and use the Services solely for (a) Subscriber’s internal use, and not for the use or benefit of any third party, including any Affiliate, unless aM has expressly agreed otherwise in a separate agreement and (b) the benefit of its business located at the Specified Location. Any access or use of the Services outside of the scope expressly permitted above shall require Subscriber or the applicable third party to enter into a separate services agreement with aM. Subscriber shall at all times maintain records and logs of the identities of all Authorized Users from to time. aM shall notify Subscriber in the event of any unauthorized access to, or use of, the Services.
5. SUBSCRIBER’s OBLIGATIONS
5.1. Subscriber shall: (a) in order to be permitted to access and use the Services, provide aM with (i) all necessary co-operation in respect of this Services Agreement; and (ii) data elements reasonably requested by aM in a widely accepted file format; (b) comply with all applicable laws and regulations with respect to its activities under this Services Agreement; (c) carry out all other Subscriber responsibilities set out in this Services Agreement in a timely and efficient manner (and in the event of any delays in the Subscriber’s provision of such assistance as agreed by the parties, aM may adjust any agreed timetable or delivery schedule as reasonably necessary); (d) ensure that the Authorized Users use the Services in accordance with this Services Agreement and shall be responsible for any Authorized User’s acts or omissions; (e) ensure its network and systems software are compatible with aM’s Services.
5.2. In connection with the Services, Subscriber shall not knowingly (after taking commercially reasonable precautions) access, store, distribute or transmit any viruses or any material that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property; and aM reserves the right, without liability to Subscriber, to disable Subscriber’s access to any material that breaches this ToS.
5.3. Subscriber shall not (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, publicly display, demonstrate, transmit or distribute all or any portion of the Services (as applicable) in any form or media or by any means; (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; (c) access all or any part of the Services in order to build a product or service which competes with the Services; (d) use the Services to provide services to third parties; (e) without the prior written consent of aM in each case, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party, except the Authorized Users; or (f) use the Services in violation of any applicable law or outside the scope expressly permitted herein. Subscriber shall not violate or attempt to violate the security of the Services. aM may investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators. Subscriber shall, at Subscriber’s sole expense, fully cooperate with aM with any such investigations and acts of cooperation.
5.4. Subscriber represents and warrants that any information that Subscriber (a) has provided or made available, or directed another party to provide or make available, directly or indirectly to aM in connection with this Services Agreement, is entirely accurate, complete, and up to date, and Subscriber remains solely responsible for ensuring this continues to be the case as long as its Services Agreement remains in effect and (b) maintains Subscriber’s IT systems such that, at a minimum, Subscriber will maintain user role based access and ACL (access control levels) and security to business sensitive data, single user usage per account and appropriate processes and policies in place for named user data access and usage audits. If such level of security is not maintained, aM shall not be liable for any damages related thereto. Subscriber shall immediately notify aM of any suspected unauthorized use of any account that Subscriber has with aM or any breach of the security of any such account or of any Service.
5.5. Subscriber is solely responsible for maintaining the confidentiality of any password, passcodes, activation keys and the like that may be required so that an Authorized User can access and use any of the Services.
5.6. Subscriber shall not assist any third party (including any Dealer Group) to do or attempt to do anything that Subscriber itself is prohibited from doing under this Services Agreement.
6. SERVICE AVAILABILITY.
aM shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week; provided, however, that aM may carry out scheduled and unscheduled maintenance work as necessary from time to time and such maintenance work may impact the availability of the Services. In respect of any scheduled or unscheduled maintenance, aM will use commercially reasonable efforts to perform such work outside Normal Business Hours and, where appropriate, give Subscriber notice of such maintenance work in advance.
7. SUBSCRIBER SUPPORT SERVICES.
aM will, as part of the Services and at no additional cost to Subscriber, provide Subscriber with aM’s standard subscriber support services during Normal Business Hours in accordance with aM’s support services policy in effect at the time that the Services are provided. aM may amend the support services policy in its sole and absolute discretion from time to time.
8.1. Compensation. Subscriber (itself or through its Dealer Group if it is a Controlled Dealership) agrees to pay aM the entirety of any Fees due pursuant to and as calculated in accordance with the applicable Terms Document. Subscriber’s payment obligations are non-cancellable and Fees paid are non-refundable. Any quantities purchased cannot be decreased until the relevant Service term has expired. If any invoiced amount is not received by aM by the due date, then without limiting aM’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Subscriber’s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever, or any credit card processing fees, payment card processing fees or any other fees, costs or expenses reasonably incurred by aM in connection with any payment by Subscriber, and Subscriber is responsible for any and all such amounts.
8.2. Payment. Subscriber is responsible for providing complete and accurate billing and contact information to aM and notifying aM of any changes to this information. If any amount owing by Subscriber for Services is 30 or more days overdue, aM may accelerate Subscriber’s unpaid Fee obligations so that all such obligations become immediately due and payable, and suspend Services.
8.2.1. Any set Fees due for a monthly term of a Service must be paid in their entirety within the first five (5) Business Days of the applicable monthly term.
8.2.2. Any set Fees for aM Setup or for any 1-year, 2-year, or 3-year term for any other Service must be paid in full within the first five (5) Business Days of (a) in the case of the initial term for such Service, the effective date of the applicable Terms Document, or (b) in the case of any subsequent term for such service, the first day of such subsequent term.
8.2.3. Any non-set Fees (by way of example only, any per-item Fees) payable in connection with any Service shall be invoiced on a monthly basis and such invoices must be fully paid within five (5) Business Days of receipt.
8.2.4. In the event that any other amounts are payable by Subscriber to aM pursuant to Subscriber’s Services or any other agreement or arrangement by and between aM and Subscriber, any such amounts must be must be fully paid within (5) Business Days of Subscriber’s receipt of an invoice for the same.
8.3. Credit Card Authorization. Subscriber will provide aM with valid credit card information for payment of Fees. Alternatively, aM may also accept business checks in its sole discretion.
8.3.1. For any Services with a monthly term, Subscriber has provided authorization (“Authorization”) directing aM to initiate monthly payments of monthly Fees for such Services (“Recurring Payments”) by charges to the American Express, VISA, MasterCard, or Discover credit card (“Credit Card”) specified in the Authorization for the initial subscription term and any renewal subscription term.
8.3.2. Each Recurring Payment charged to the Credit Card will be in the full amount of any Fees due on such Services. Subscriber also authorizes aM to charge or initiate adjustments to the Credit Card for any refunds or other billing adjustments owed to or by Subscriber. aM will automatically charge the Credit Card for Recurring Payments until Subscriber terminates the Authorization by providing aM adequate notice and a reasonable opportunity to act on the notice. If Subscriber makes a monthly payment by business check which is processed and cleared before the related Recurring Payment is initiated, the related Recurring Payment will not be processed.
8.3.3. Charges to the Credit Card may be rejected by the issuer of the Credit Card. Subscriber authorizes and directs the Credit Card issuer to honor all charges to the Credit Card initiated by aM. If aM is unable to charge the Credit Card and receive payment for such Services, Subscriber will immediately make payment using another payment method or as directed by aM. If any charge to the Credit Card is returned unpaid by the Credit Card issuer, aM may charge, and Subscriber agrees to pay, a returned payment fee and any other charges permitted by applicable law. aM may re-process returned charges for a period of 30 days after they were rejected. aM retains the right to exercise any other legal remedy, including the right to impose late fees and charges and the right to report Subscriber to one or more consumer reporting agencies. Subsequently scheduled Recurring Payments may also be canceled. Notwithstanding that Subscriber has provided Authorization, (a) Subscriber continues to be responsible to pay Fees and all amounts due for such Services on or before the date they are due, and (b) aM may seek all remedies available to it under these ToS or applicable law if Subscriber fails to pay amounts due under these ToS on or before their due date for any reason.
8.3.4. Subscriber represents and warrants to aM that (i) it is the owner of the Credit Card, and (ii) charges to the Credit Card in accordance with these ToS will not be disputed. Subscriber acknowledges that the origination of charges to the Credit Card must comply with the provisions of U.S. law.
8.3.5. Subscriber will provide and continuously maintain with aM valid and updated Credit Card information.
One, Two and Three-Year Terms
8.3.6. For any Services with one, two and three years terms (including initial and any renewal terms), aM will make available invoices to Subscriber to pay for such Services.
8.4. Late Payment. If any amount owing by Subscriber is thirty (30) or more days overdue, without limiting aM’s remedies, aM may (a) accelerate the entirety of Subscriber’s unpaid Fee obligations under such agreement as well as any other agreement between Subscriber and aM so that all such obligations become immediately due and payable, and suspend Services, and (b) in its sole discretion, and with no liability whatsoever for doing so, suspend the provision of any or all Services, or any other services, benefits, products, content, or data that it may be obligated to provide under this Services Agreement and/or any other agreement or arrangement between Subscriber and aM until such time as all such overdue amounts, along with any applicable late fees or interest, have been paid in full. Subscriber acknowledges and agrees that it shall be liable for any amounts incurred by aM in enforcing any of aM’s rights to any payments due hereunder including but not limited to reasonable attorney’s fees and any amounts charged by a collections agency or service.
8.5. Fee Increases. aM has the right to increase the Fees for any of Services in its sole discretion by providing at least thirty (30) days prior written notice in accordance with these Terms. For the avoidance of doubt, no such Fee increase will take effect in connection with any Service that Subscriber has subscribed to until the current term of such Service has been completed. Furthermore, no one-time Fees may be retroactively increased by aM.
9. ANONYMIZED DATA
9.1. Notwithstanding anything herein, Subscriber acknowledges and agrees that aM may freely use, disclose, transfer, sell to third parties, or otherwise process, and/or monetize with or without the involvement of third parties, any and all Anonymized Data in accordance with all applicable laws, rules and regulations.
10. SUBSCRIBER’S DATA
10.1. Subscriber represents and warrants that Subscriber has secured any consent required by law, rule or regulation from any applicable parties who own or control information (personal or otherwise) that is transmitted to aM in connection with the Services for aM to use and disclose such information as contemplated herein.
10.2. If aM processes any Personal Information on Subscriber’s behalf when performing the Services (or any part thereof), Subscriber acknowledges and agrees that: (a) Subscriber shall ensure that Subscriber is entitled to transfer the relevant Personal Information to aM so that aM may lawfully use, process and transfer the Personal Information in accordance with this Services Agreement on Subscriber’s behalf; (b) Subscriber shall ensure that the relevant third parties, if required, have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (c) aM shall process the Personal Information only in accordance with the terms of this Services Agreement.
10.3. Subscriber shall own all rights, title and interest in and to all of Subscriber’s data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Subscriber’s data.
10.4. In the event of any loss or damage to Subscriber’s data, Subscriber’s sole and exclusive remedy shall be for aM to use commercially reasonable efforts to restore Subscriber’s lost or damaged data from the latest back-up of such Subscriber’s data maintained by aM in accordance with its archiving procedure from time to time. aM shall not be responsible for any loss, destruction or alteration of Subscriber’s data caused by any third party except if such loss, destruction, alteration or disclosure was the direct result of a breach of aM’s obligation under any of this Services Agreement or aM’s violation of applicable laws, rules or regulations. In the event of any loss, damage or alteration of Subscriber’s data, Subscriber shall not incur any additional aM Setup fees to restore Subscriber’s data.
11. SUBSCRIPTION TERM AND NON-RENEWALS
11.1. Unless expressly stated otherwise herein, the initial term of each Service that Subscriber has subscribed for in this Services Agreement shall begin on the effective date of the Terms Document or, if added after that date, the date as the Parties agree upon. The term length for each such Service (a Service’s “Service Term”) shall be as set forth in the Terms Document. Upon the expiration of a Service’s current Service Term, such Service shall automatically renew for a Service Term of the same duration unless either Party provides the other Party notice of non-renewal at least ninety (90) days before the applicable automatic renewal date. Subscriber may not otherwise terminate or cancel any Service that it has subscribed to.
11.2. Upon cancellation or termination of any or all Services: (a) Subscriber will be responsible for undisputed amounts that are payable for Services through the effective date of termination; (b) all access, Service use, support, and maintenance rights granted to Subscriber hereunder will immediately cease to exist except as otherwise set forth in this Services Agreement; and (c) Subscriber must promptly discontinue all use of the Services.
12. THIRD-PARTY WEBSITES AND SERVICES.
13. COMMUNICATIONS TO SUBSCRIBER’S CUSTOMERS.
13.1. Subscriber acknowledges and agrees that, as between Subscriber and aM, and except as set forth in this Section, Subscriber is responsible for compliance with all federal, state or other applicable laws governing the use of the Services, including but not limited to laws applicable to direct marketing and privacy.
13.2. Subscriber acknowledges and agrees that the Services provided by aM merely constitute “routine conveyance,” as such term is defined in 15 U.S.C. § 7702 (CAN SPAM Act), in connection with the transmission of any electronic mail messages on Subscriber’s behalf.
13.3. If Subscriber has agreed to use the Services in respect of the provision by aM of direct mail and e-mail campaign services in respect of Subscriber’s Customers, Subscriber agrees that Subscriber is solely responsible for maintaining, and making available to aM, on at least a monthly basis, an accurate, complete and current list of opt-out or suppression requests from Subscriber’s Customers and the communication channels in respect of which such requests were made. Subscriber agrees that if aM receives any opt-out or suppression request from any of Subscriber’s Customers (whether through Subscriber or through other means or from other sources), aM will limit the Services consistent with such opt-out or suppression request, unless Subscriber notifies aM in writing (including by electronic mail) that such request has subsequently been modified or revoked. Subscriber agrees that aM is entitled to rely on any representation by Subscriber, whether oral or in writing (including by electronic mail), with respect to Subscriber’s Customers’ opt-out or suppression requests, and a failure by Subscriber to include the name and other relevant details of an opt-out request from any of Subscriber’s Customers shall constitute a representation by Subscriber that an opt-out request has not been received. Subscriber’s acceptance of reliance by aM on any such representation by Subscriber shall absolve aM of any responsibility or liability whatsoever with respect to all federal, state or other applicable laws governing the use of the Services and of Subscriber’s Customers’ opt-out or suppression requests from time to time. aM shall provide Subscriber, on at least a weekly basis, notice of opt-out or suppression requests that aM shall have received from any of Subscriber’s Customers in connection with the provision of the Services. Under no circumstances shall aM be liable to any person whatsoever for Subscriber’s failure to reconcile such requests from Subscriber’s Customers with Subscriber’s systems and records at such times and with such regularity as required by law, by contract or otherwise provided the aM has complied with its obligations under the Terms.
14. ELECTRONIC COMMUNICATIONS.
aM uses reasonable security measures and takes reasonable system, process and administrative precautions to protect the security and integrity of email and other electronic communications that Subscriber may send to aM. Despite all these precautions, no method of transmission over the Internet is entirely secure and aM cannot guarantee the confidentiality or security of Subscriber’s electronic communications or its contents. Subscriber transmits such information at Subscriber’s own risk and Subscriber should decide very carefully which information Subscriber wants to send to aM via any electronic communication.
15. aM DEALER GROUP SERVICES AGREEMENTS.
In the event that Subscriber is entering into this Services Agreement in connection with a Services Agreement between aM and a Dealer Group with respect to which Subscriber is a Controlled Dealership (a “GSA”), then the additional following terms and conditions shall apply:
15.1. Incorporation of certain GSA Terms. Both Parties acknowledge and agree that this Services Agreement shall be subject to any provision of the GSA that expressly states it shall apply to the Services Agreement of a Controlled Dealership (any such term or condition, a “GSA Subscriber Term”). In the event of any conflict between any GSA Subscriber Term and any term or condition included or incorporated into this Services Agreement, the GSA Subscriber Term shall control. If the GSA expires or is terminated, Subscriber’s Services Agreement then in effect shall continue to be in effect in accordance with its terms; provided, however, that no term or condition in the GSA shall have any continued legal effect on this Services Agreement except such terms and conditions, if any, set forth in an exhibit or schedule to the GSA that has been included to constitute an addendum to such Subscriber’s Services Agreement.
15.2. Consent to Share Information with Dealer Group.
NOTWITHSTANDING THESE TERMS OR ANY OTHER AGREEMENT BY AND BETWEEN OR AMONG SUBSCRIBER, DEALER GROUP, AND aM TO THE CONTRARY (BUT ALWAYS SUBJECT TO ANY APPLICABLE LAW):
(A) FOR AS LONG AS THE APPLICABLE GSA REMAINS IN EFFECT IN ACCORDANCE WITH ITS TERMS, SUBSCRIBER EXPRESSLY CONSENTS AND AUTHORIZES aM, ONLY FOR THE DURATION OF THIS SERVICES AGREEMENT, TO SHARE ANY AND ALL INFORMATION PROVIDED BY, ABOUT, OR OTHERWISE CONNECTED TO, SUBSCRIBER WITH DEALER GROUP AS DEALER GROUP MAY REQUEST, INCLUDING BUT NOT LIMITED TO ANY OR ALL OF SUBSCRIBER’S PERSONAL INFORMATION OR OTHER CONFIDENTIAL INFORMATION, AS WELL AS ANY INFORMATION RELATED TO SUBSCRIBER’S COMPLIANCE OR NON-COMPLIANCE WITH ANY SERVICES AGREEMENT OR SUBSCRIBER’S UTILIZATION OF ANY SERVICE (SUCH INFORMATION, COLLECTIVELY, “SHAREABLE INFORMATION”); AND
(B) aM SHALL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER IN CONNECTION WITH ANY SHAREABLE INFORMATION PROVIDED DIRECTLY OR INDIRECTLY BY aM TO DEALER GROUP OR WITH HOW DEALER GROUP MAY USE, PROCESS, TRANSFER, DISPOSE OF, OR OTHERWISE DEAL WITH ANY SHAREABLE INFORMATION, AND SUBSCRIBER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT aM’S SHARING OF ANY SHAREABLE INFORMATION IS DONE SOLELY AT SUBSCRIBER’S OWN RISK AND LIABILITY.
15.2.2. In addition to any indemnification obligations Subscriber may have pursuant to Section 26, Subscriber also agrees to indemnify, defend, and hold aM, its Affiliates, its and their officers, directors, agents, employees, vendors, and contractors harmless from and against any actual or threatened suit, action, claim, demand, penalty, damages, fine, fees, or loss, including all related reasonable attorneys’ fees, due to or arising, directly or indirectly, out of aM providing any Shareable Information to Dealer Group or from or in connection with Dealer Group’s using, processing, transferring, disposing of, or otherwise dealing with any such Shareable Information. aM reserves the right to assume, at its own expense, the exclusive defense and control of any matter subject to indemnification by Subscriber hereunder. This indemnification obligation and aM’s right to exclusive defense provided for herein shall survive the cancellation and/or termination of any or all the Services and/or this Services Agreement.
15.3. Notification of Change in Ownership. Subscriber must notify aM as soon as possible if Subscriber is no longer controlled by Dealer Group or if there is a reasonable possibility that Subscriber will no longer be controlled by Dealer Group in the foreseeable future. aM shall have no liability whatsoever, and Subscriber shall fully defend, protect, and indemnify aM, its Affiliates, its and their officers, directors, agents, employees, vendors, and contractors harmless from and against any suit, action, claim, demand, penalty or loss, including reasonable attorneys’ fees, due to or arising out of, directly or indirectly, Subscriber’s failure to comply with this notification requirement.
TERMS APPLICABLE TO DEALER GROUPS ONLY
16. ELIGIBILITY FOR, AND SUSPENSION, OF GSA BENEFITS
Each of Customer and aM represents, warrants and covenants to the other Party that:
16.1. No Dealer Group Discount shall start or continue to apply, and neither Dealer Group nor a Controlled Dealership may start or continue to receive any Additional Benefit unless, at such time (i) there are at least ten (10) Controlled Dealerships in effective Services Agreements. For the purpose of the Dealer Group’s Services Agreement, a Controlled Dealership’s Services Agreement shall be deemed “not effective” if the applicable Controlled Dealership (x) is in breach of its Services Agreement, (y) has notified or otherwise provided aM with reason to believe that it is terminating or letting expire its Services Agreement or (z) has given aM reason to believe it is or is likely to do anything described in clauses (x) or (y).
16.2. The Dealer Group Discount and all Additional Benefits offered to any Controlled Dealership and/or to Dealer Group may be suspended by aM at any time without prior notice to Dealer Group or any Controlled Dealership in the event that any Controlled Dealership is in breach of its Services Agreement or Dealer Group is in breach of Dealer Group’s Services Agreement.
16.3. In connection with any Dealership, aM has no obligation to offer, and can immediately cease providing, the Dealer Group Discount or any Additional Benefits that Dealer Group or a Controlled Dealership if and when such Controlled Dealership ceases to meet the definition herein of a Controlled Dealership. Dealer Group must notify aM in writing as soon as possible if a former Controlled Dealership no longer meets the definition of a Controlled Dealership.
17. DEALER GROUP APPROVAL OF GSA
17.1. As soon as reasonably practicable (and every 6 months thereafter while the GSA is in effect), Dealer Group must notify the senior management of each of its Controlled Dealerships not then in an effective Services Agreement, such notification stating or including: (a) Dealer Group has entered into a GSA with aM; (b) Dealer Group has reviewed and approves of all the terms and conditions included or incorporated into the current version of aM’s standard Subscription Agreement (as such Subscription Agreement may be modified by any terms included in the GSA); (c) a description of the Services; (d) a contact number and email address supplied by aM for such Controlled Dealership to use for any inquiries; and, (e) a clear and express statement that each such Controlled Dealership has any and all consents and authorizations it may require from Dealer Group in order to enter into an Subscription Agreement with aM, such statement not be revoked or modified by Dealer Group as long as the GSA is in effect. Dealer Group must either copy aM on all such communications to its Controlled Dealerships or otherwise as soon as possible provided written evidence that such communications were paid in accordance with this Section.
17.2. For as long as Dealer Group’s GSA remains in effect, each time Dealer Group comes to control another Dealership, it shall as soon as reasonably practicable provide the notification described in Section 17.1 to such new Controlled Dealership in accordance with the terms of Section 17.1.
18. DEALER GROUP PAYMENT GUARANTY
18.1. In the event that any amount due from a Controlled Dealership’s Services Agreement is over thirty (30) days overdue, Dealer Group shall, within seven (7) days of being so notified by aM, pay to aM the entirety of the Controlled Dealership’s overdue amount along with any late fees or interest added to such amount pursuant to the applicable Services Agreement. aM shall have the right to notify Dealer Group and receive such payment from Dealer Group regardless of whether or not the overdue Controlled Dealership has the ability to pay such overdue amount at the time of aM’s notification to Dealer Group. For the avoidance of doubt, aM shall have no obligation to request any overdue payment from a Controlled Dealership before seeking such a payment from Dealer Group.
18.2. In the event a Controlled Dealership’s Services Agreement is terminated or expires for any or no other than as a result a material breach of such Services Agreement by aM (and only then if the termination of such Services Agreement occurs in full accordance with the terms of such Services Agreement), aM, in its sole discretion, may require, upon written notification, that Dealer Group meet all the payment obligations of the terminated/expired Services Agreement (including but not limited to making all payments on or before payment deadlines applicable to such Services Agreement) had such Services Agreement remained in effect until the expiration or termination of Dealer Group’s GSA.
TERMS APPLICABLE TO BOTH SUBSCRIBERS AND DEALER GROUPS
19. REPRESENTATIONS AND WARRANTIES
Each of Customer and aM represents, warrants and covenants to the other Party that:
19.1. It is duly organized, validly existing and in good standing as a corporation or other entity under the applicable law of the jurisdiction of its incorporation or other organization;
19.2. It has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Services Agreement;
19.3. The execution of the applicable Terms Document by such Party’s representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational action of such Party;
19.4. Upon full execution, this Services Agreement constitutes the legal, valid and binding obligation of each Party, enforceable against such Party in accordance with its terms; and
19.5 Any information provided or made available by or on behalf of such Party to the other Party, as and when used or otherwise exploited by the receiving Party in the manner contemplated by this Services Agreement, does not and will not infringe upon, misappropriate or otherwise violate any intellectual property rights or any other right of any third party or violate any applicable law.
20.1 Each Party may be given access to Confidential Information from the other Party in connection with this Services Agreement. Each of Customer and aM shall hold the respective other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the exercise of its rights or performance of its obligations under the Services Agreement.
20.2 Each Party shall take commercially reasonable steps to ensure that the other Party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Services Agreement. Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party except if such loss, destruction, alteration or disclosure was the result of a breach of such Party’s obligations hereunder or as a result of a violation of applicable laws, rules or regulations. aM acknowledges that Subscriber’s data is Subscriber’s Confidential Information. This provision shall survive termination of the Services and this Services Agreement, however arising.
21.1 Customer acknowledges and agrees that the Services, Software and all related content, and all worldwide right, title and interest in the intellectual property thereof, is the sole property of aM and includes valuable trade secrets of aM, including, but not limited to, the trademarks, “look and feel,” color combinations, layout, and all other graphical elements of the Services, and the copyright in and to the original content of the Services. Except with respect to Anonymized Data, aM acknowledges and agrees that any data provided by Customer is the sole property of Customer and may only be used by aM for the Customer’s benefit in performance of the Services.
21.2 Customer agrees to notify aM of all problems and ideas for enhancements which come to Customer’s attention during the term hereof, and Customer hereby forever assigns to aM all right, title and interest to such enhancements and all intellectual property rights therein.
22. TERMINATION; SURVIVAL
22.1 Each Party may terminate with immediate effect this Services Agreement by providing notice to the other Party, if such other Party has breached any material provision of this Services Agreement and does not cure such breach within thirty (30) days after receiving notice of such breach from the non-breaching Party.
22.2 This Services Agreement shall automatically terminate without notice if the Customer: (i) voluntarily institutes insolvency, receivership or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.
22.3 Any accrued payment obligations hereunder, as well any sections or provisions of this Services Agreement which by their nature would be intended to be applicable following expiration or termination of this Services Agreement, will survive that expiration or any termination for any reason.
23. DISCLAIMERS; LIMITATION OF LIABILITY
23.1 aM makes no guarantee or warranty, express or implied, as to the reliability, accuracy, timeliness or completeness of any information found as part of the Services and assumes no responsibility for any errors or omissions therein. ACCESS TO THE SERVICES IS AT EACH SUBSCRIBER’S OWN RISK. IT IS EACH SUBSCRIBER’S RESPONSIBILITY TO LIMIT THE USE OF SERVICES BY ITS EMPLOYEES, CONTRACTORS OR AGENTS TO ITS AUTHORIZED USERS’ ACCOUNTS AND THE RELATED IP ADDRESSES. aM SHALL NOT BE RESPONSIBLE FOR ANY ERRORS OR OMMISSIONS MADE BY ANY SUBSCRIBER OR ITS EMPLOYEES, AGENTS OR CONTRACTORS WHEN USING ANY OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS ” BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED TO THE FULL EXTENT PERMISSIBLE BY LAW.
23.2 1.1 NEITHER aM NOR ANY OF ITS AFFILIATES, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS OR THIRD-PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOST PROFITS, UNAVAILABILITY OF SUBSCRIBER DATA, OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIIVE, OR INCIDENTAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER DAMAGES IN EXCESS OF THE GREATER OF (A) $100 AND (B) THE FEES PAID TO aM IN THE SIX (6) MONTHS PRECEDING THE DATE THE CLAIM AROSE.
23.3 aM IS NOT LIABLE FOR CRIMINAL, TORTUOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THE SERVICES. IN NO EVENT WILL aM OR ANY OF ITS AFFILIATES, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS OR THIRD PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY TORTUOUS OR ILLEGAL CONDUCT OF aM’S OTHER CLIENTS OR USERS. IN NO EVENT WILL aM OR ANY OF ITS AFFILIATES, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS OR THIRD PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, OR ANY CONTENT INCLUDED IN OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES.
Customer agrees to indemnify, defend, and hold aM, its Affiliates, its and their officers, directors, agents, employees, vendors, and contractors harmless from and against any actual or threatened suit, action, claim, demand, penalty, damages, fine, fees, or loss, including all related reasonable attorneys’ fees, due to or arising out of (a) in the case of Subscriber, Subscriber’s use of the Services, (b) in the case of Dealer Group, aM providing any Shareable Information to Dealer Group or in Dealer Group’s using, processing, transferring, disposing of, or otherwise dealing with any Shareable Information, or (c) Customer’s breach of any term of this Services Agreement, or violation of any law, regulation, order or other legal mandate, or the rights of a third party. aM reserves the right to assume, at its own expense, the exclusive defense and control of any matter subject to indemnification by Customer hereunder. This indemnification obligation and aM’s right to exclusive defense provided for herein shall survive the cancellation and/or termination of any or all the Services and/or this Services Agreement. aM agrees to indemnify, defend, and hold Customer and its officers, directors, agents, and employees, harmless from and against any suit, action, claim, demand, penalty or loss, including reasonable attorneys’ fees, due to or arising out of aM’s breach of any term of this Services Agreement, or aM’s violation of any law, regulation, order or other legal mandate, or the rights of a third party.
Customer authorizes to use the Customer’s trademarks, service marks, logos, and other source identifiers (including, without limitation, in its marketing and promotional materials) to identify Customer as a customer of aM; provided, however, that Customer may withdraw such authorization at any time by providing aM with written notice.
26.1. All notices and other communications given or made pursuant to or in connection with this Services Agreement shall be in writing and shall be deemed to have been given: (a) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (b) if sent by facsimile or e-mail of a pdf document, on the date of receipt of a confirmation of transmission; or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth below (or to such other address that may be designated by a Party from time to time in accordance with this provision).
If to aM:
One Park Avenue 14th Floor
New York, NY 10038
If to Customer:
(as such may be updated by Customer by notice to aM in writing) the mailing address of Customer (which shall be deemed to be the Specified Location if no other mailing address has been specified) and/or the e-mail address(es) of Customer’s Authorized Representative as specified in the applicable Terms Document, with attention to Customer’s Authorized Representative.
26.2. Notwithstanding anything else in this Services Agreement, in regards to any matter related to any amounts payable by Subscriber to aM, aM shall have the right to notify Subscriber’s Billing Contact instead of Subscriber’s Authorized Representative.
26.3. Customer is solely responsible for providing complete and accurate Notice, Authorized Representative, and Billing Contact information to aM and for notifying aM of any changes to such information as soon as possible. aM shall have no liability whatsoever for any notifications that Customer does not receive or fails to become aware of as a result of Customer’s failure to update any such information as required herein. Furthermore, Customer shall be fully liable and aM shall have no liability whatsoever, for any breach of Customer’s Services Agreement that results, directly or indirectly, from Customer’s failure to update any such information as required herein.
This Services Agreement (including any terms incorporated by reference therein, such as the applicable Terms Documents) constitutes the only terms and conditions concerning the subject matter of this Services Agreement and all other prior discussions, negotiations, representations, agreements, and understandings are superseded hereby. Except as otherwise stated to the contrary in this Services Agreement, no term of this Services Agreement may be amended unless in a writing signed by authorized representatives of both Parties. No term of this Services Agreement may be waived by a Party unless done so in writing by an authorized representative of such Party. If any provision of this Services Agreement is found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of the other conditions of this Services Agreement. There are no third-party beneficiaries to this Services Agreement except those parties that a Party may be obligated to defend, indemnify, and hold harmless pursuant to any indemnification obligations contained herein or therein. Customer may not assign its Services Agreement without the prior written consent of aM which may be provided or withheld in aM’s sole discretion. aM may assign this Services Agreement to any Affiliate or successor to substantially all of its assets or business related to this Services Agreement. This Services Agreement is binding on the parties, their successors, and assigns. Any assignment in violation of this Section shall be null, void and of no legal effect. If Customer breaches any term of its Services Agreement, aM may pursue any legal or equitable remedy available, including but not limited to, direct, consequential and other indirect damages, and injunctive relief. aM’s remedies are cumulative and not exclusive. Failure of aM to exercise any remedy or enforce any portion of the terms of this Services Agreement at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of such Services Agreement or any other agreement by and between aM and Customer. Both aM and Customer shall resolve any claim, cause of action or dispute either Party has with the other arising out of or relating to this Services Agreement exclusively in a state or federal court located in New York County, NY. The laws of the State of New York will govern this Services Agreement, as well as any claim, cause of action or dispute that may arise between Customer and aM, without regard to conflict of law principles. Customer agrees to submit to the exclusive personal jurisdiction of the courts of the State of New York, located in New York County, for the purpose of litigating all such claims. EACH OF aM AND SUBSCRIBER HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO, SUBSCRIBER’S SERVICES AGREEMENT OR ANY PORTION THERETO. In any dispute arising under this Services Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees and expenses. Any dispute arising hereunder or related to this Services Agreement or any of the benefits hereunder shall be solely between Customer and aM, and to the fullest extent permitted by law, no dispute or proceeding shall be joined with any other or decided on a class-action basis.
28. ADDITIONAL DEFINITIONS; INTERPRETATION
28.1. Additional Definitions:
“Affiliate” with respect to Customer or aM, shall mean any legal entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, Customer or aM.
“Anonymized Data” shall mean any elements, components, composites or aggregations of any and all data collected by aM through and in connection with the Services that does not identify Subscriber or any individual.
“Authorized Representative” shall mean the individual identified as such as part of the onboarding process in connection with the execution of this Services Agreement.
“Authorized User” shall mean the individual(s) authorized by Subscriber to access and use the Services from time to time, provided that such individual(s) may only access or use the Services in their exclusive capacity of employees of, or independent contractors engaged by, Subscriber.
“Business Day” shall mean any day which is not a Saturday, Sunday or public holiday in the State of New York.
“Confidential Information” consists of the details of the Services, the results of any performance tests of the Services, as well as any other information that is proprietary or confidential and clearly labeled as such. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. For the avoidance of doubt, regardless of anything else herein, any Anonymized Data that is generated by aM shall not constitute any of Subscriber’s Confidential Information.
“Control”, “controlling” and “controlled” shall mean, as to any legal entity, the power to, directly or indirectly, direct or cause the direction of the management and policies of another legal entity (including but not limited to Subscriber or aM) through any means, including but not limited to the direct or indirect ownership of at least 50% of the controlled entity’s voting securities.
“Controlled Dealership” means a Dealership controlled by Dealer Group. For purposes hereof, “control” shall mean, as to each such entity, the power to, directly or indirectly, direct or cause the direction of the management and policies of such entity through ownership of at least 50% of such entity’s voting securities.
“Dealership” means an entity that is primarily in the business of selling automobiles, trucks, SUVs and/or other motor vehicles.
“Fees” shall mean the fees payable by Subscriber to aM for accessing and using the Services. Unless expressly agreed to otherwise, any applicable Fees shall be set forth in Subscriber’s Terms Document.
“Franchise”shall mean the business referred at the Specified Location set forth in a Services Agreement or otherwise at the address at Subscriber ordinarily operates such business.
“Normal Business Hours” shall mean 9:00 am EST to 10:00 pm EST of each calendar day.
“Services” shall mean, collectively, the Services described in the applicable Terms Document and this ToS. The Services are part of a platform maintained and operated by aM and/or its Affiliate(s) designed to allow Subscriber and other automotive dealerships to predict customer behavior, understand driving factors and deploy tailored solutions to customers efficiently and cost-effectively, allowing Subscriber and other automotive dealerships to solve operational and workflow challenges, utilizing analytical, predictive methods for identifying, generating and prioritizing customer behavior, deploying cloud-based software to increase the flexibility of data management, reporting and decision-making, streamlining internal operational effectiveness and centralizing the storage and accessibility of historical and current data for ease-of-use.
“Specified Location” is the location specified on the applicable Terms Document as the specific location of the business in connection with which Subscriber is accessing and using the Services. In the event that the Specified Location is not included on this Services Agreement, any postal address provided for Subscriber shall be deemed to be the Specified Location unless Subscriber has notified aM otherwise in writing. If no postal address has been included and Subscriber has not otherwise provided the Specified Location in writing, aM shall have the right to determine the Specified Location using such reasonable means as it sees fit, and aM’s determination shall be binding.
28.2 Interpretation A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation, limited liability company, or other body corporate, wherever and however incorporated or established. Words in the singular shall include the plural and vice versa. A reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to “writing” or “written” includes electronic mail.