DEALERSOCKET TERMS OF SERVICE

(Last Updated November 2019)

 

These Terms of Service (“Terms”) establish the general terms and conditions between DealerSocket, Inc. (“DealerSocket”) and Customer applicable to DealerSocket’s provision of products and services (collectively, the “Products”) to Customer as listed on one or more fully executed order forms (each, an “Order”) (the Terms and Order are collectively referred to as the “Agreement”).

 

1.     TERMINATION or CANCELLATION

1.1      Dependent Products. Upon termination or cancellation of a Product pursuant to the Agreement, all software programs and applications dependent upon such Product will automatically terminate. A Product marked as “Coterminous” has the same term length as the program or application upon which such Product is dependent.

1.2       Cancellation of an Order. Either party may cancel an Order by providing notice to the other party, and subject to any conditions specified in such Order. Notice of cancellation by Customer must be sent by email to notices@dealersocket.com. Notice of cancellation by DealerSocket (or suspension or termination as outlined in Sections 1.3 and 1.4 respectively) will be in accordance with Section 10.12. Any Orders that are not cancelled, or terminated as outlined herein, will continue in full force and effect under the terms of the Agreement.

1.3      Suspension. Suspension under this Section 1.3 will not relieve Customer of its obligations to pay amounts due to DealerSocket.  DealerSocket may immediately suspend Customer’s account or cease to provide the Products without notice if any of the following occur:

a.      A material risk to the security or performance of any Products or any aspect of DealerSocket’s software programs and applications;

b.     Use of the Products in any way that violates the Agreement; or

c.      Customer does not pay an invoice within 30 days of the invoice due date.

1.4      Termination for Cause. Notwithstanding anything to the contrary, either party may immediately terminate any Order by providing written notice to the other party if either of the following occur:

a.      The other party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable breach or provide a written plan of cure acceptable to the non-breaching party within 30 days of being notified in writing of such breach; or

b.     The other party becomes insolvent, generally stops paying its debts as they become due, or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days after commencement of one of the foregoing events).

1.5      Result of Termination or Cancellation. If DealerSocket terminates any Order for cause (as set forth in Section 1.4 above), DealerSocket will notify Customer and immediately discontinue Customer’s access to the Products and the licenses granted under Section 2.9 will immediately cease. Upon termination or cancellation of an Order by either party, the licenses granted under Section 2.9 will immediately cease and Customer will pay DealerSocket an amount equal to the aggregate fees due, in accordance with Section 9, through the end of the term in which the cancellation notice becomes effective. Customer acknowledges this payment constitutes liquidated damages reflecting a reasonable measure of actual damages and is not a penalty. Customer will reimburse DealerSocket for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting amounts due DealerSocket hereunder.

2.     PRODUCTS AND SERVICES

2.1      Grant of License. Subject to Customer’s compliance with the Agreement, including timely payment of all fees owed to DealerSocket, DealerSocket hereby grants Customer a non-transferable, non-exclusive, limited license to use the Products identified in any Order solely for the internal business purposes of Customer and only during the term of such Order. Customer agrees that DealerSocket is an “authorized integrator” (or words of similar import) under applicable law.

2.2      Restrictions on Use. Customer must use the Products only for their intended purpose. Customer must not itself, nor through any affiliate, employee, consultant, contractor, agent or other third party: (a) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Products; (b) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer, copy, or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure, or other elements of the Products, in whole or in part, for any purpose; (c) allow access to, provide, divulge or make available the Products to any individual or entity other than Customer’s employees or individual contractors who have a need for such access and who will be bound by the terms of the Agreement; (d) write or develop any derivative works based upon the Products; (e) modify, adapt, translate or otherwise make any changes to the Products; (f) disclose or publish, performance or capacity statistics or the results of any benchmark test performed on the Products; (g) impede, disable or otherwise undermine any license manager or other component designed to track Customer’s usage of the Products; or (h) otherwise use the Products in a manner not expressly permitted.

2.3      Set-up and Implementation. Customer must adopt procedures to ensure the accuracy of input data, examine and confirm results prior to use, adopt procedures to identify and correct Customer or user errors and omission, and provide an authorized primary and a backup point of contact who will coordinate communication and activities and make or facilitate making decisions during the implementation and post-implementation. DealerSocket is not liable for any delay or other liability arising out of Customer’s failure to comply with any of the foregoing.

2.4      Structure. Each Order will state the name of the Products being licensed pursuant to such Order, all pricing information, the respective fees, and any additional payment terms for each specific Product delineated in that Order.  These Terms are hereby incorporated into and are considered to be a part of each Order. To the extent any terms or conditions of an Order conflict with these Terms, the terms of the Order will control.

2.5      Products. Products may be subject to usage rates, overage charges, or additional limitations or restrictions as described on www.dealersocket.com/licensing. Access to the Products is limited to the version of the Products available in DealerSocket’s production environment. DealerSocket regularly updates the Products and reserves the right to add or remove any feature or to substitute functionally equivalent features or software in the event of unavailability, end-of-life, changes to software requirements, or vendor availability. DealerSocket may collect data associated with Customer’s use of the Products to analyze product functionality and improve feature enhancements. In the course of providing and maintaining the Products, it is sometimes necessary for DealerSocket to transfer Customer Data to a third party, such as for hosting purposes. By using the Products, Customer consents to such sharing of Customer Data. A list of third parties with whom Customer Data is shared may be provided to Customer upon request.

2.6      Environment. DealerSocket will provide Customer online access to and use of the Products via the internet.  Customer is solely responsible for obtaining and maintaining at its own expense all equipment needed to access the Products, including but not limited to procuring, installing and operating Customer’s computers, hardware, communication lines, internet connectivity, mobile devices, wireless carrier service, bandwidth and any operating systems required for the Customer’s use of the Products.

2.7      Security. DealerSocket will implement reasonable and appropriate measures designed to secure Customer Data (as defined in Section 5.1 below) against accidental or unlawful loss, access or disclosure.  Customer will maintain commercially reasonable security procedures for the transmission of data to DealerSocket.  Customer must notify DealerSocket immediately of any suspected security breach regarding transmissions to or from DealerSocket.  Customer will not: (a) breach or attempt to breach the security of the Products or any network, servers, data, computers or other hardware relating to or used in connection with the Products, or any third party interfacing with any part of the Products; or (b) use or distribute through the Products any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Products or the operations or assets of another customer of DealerSocket or any third party. Customer will comply with the user authentication requirements for use of the Products. Customer will specify, in writing, one or more individuals who will be authorized by Customer to administer Customer’s access to and use of the Products on behalf of Customer.  Customer will only permit authorized Users (as defined in Section 3.1 below) to access and use the Products. DealerSocket has no obligation to verify the identity of any person who gains access to the Products by means of an access ID.  Customer is solely responsible for monitoring its Users’ access to and use of the Products. DealerSocket will not be liable for any damages incurred by Customer or any third party resulting from failure of a User to comply with the Agreement. Customer must immediately take all necessary steps, including providing notice to DealerSocket, to affect the termination of an access ID for any User if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred.

2.8      Customer Data Format. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of the data that it inputs into the Products.  All such data must be provided to DealerSocket in a reasonable commercial format that is widely used within the industry.  Customer acknowledges that data not submitted in such a format may result in additional fees for conversion to the correct format or other actions provided by DealerSocket on Customer’s behalf to allow for the use of data.

2.9      Support. In connection with customer relationship management (“CRM”) Products, Customer will have unlimited access to the DealerSocket University and Knowledgebase. With regard to Products, Customer may call the DealerSocket support center during the standard hours of operation as listed at https://dealersocket.com/support.

2.10   Training. Solely as a convenience to Customer, DealerSocket may make certain training available to Customers upon installation or implementation of Products listed on an Order. The type, amount, and period of availability of training offerings varies by Product and is subject to change without notice to Customer. Customer expressly acknowledges that it bears all responsibility for arranging any training for any User of the Products, including any additional training for new Users added to Customer’s account after installation or implementation of the Products. Customer acknowledges that certain training, including training for new Users, may be subject to additional fees as determined by DealerSocket.

2.11   Hosting. The Products will be hosted on a server that is maintained by DealerSocket or its designated third-party supplier or data center.

2.12   Product-Specific Terms. Customer agrees to abide by these additional product-specific terms if applicable to Customer’s subscription:

i.   Customer’s Use of N.A.D.A. Data. If Customer subscribes to the N.A.D.A. data as part of the Products, Customer agrees:

a.     Customer acknowledges that the license to use N.A.D.A. Valuations granted hereunder will not permit Customer to market, sublicense or utilize the N.A.D.A. Valuations independent of the Products.

b.     Customer agrees that the NADASC database of Valuations (the ‘‘NADASC Licensed Database’’) will not be used as a data source from which a new valuation data base or valuation system may be created, and that vehicles will be valued individually as needed in the Products.

c.     Except as otherwise provided in the terms of this Agreement, Customer agrees not to reproduce, store in a retrieval system or transmit, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, any vehicle N.A.D.A. Valuations, without the prior written consent of NADASC.

d.     Customer acknowledges and agrees that the NADASC Licensed Database, the N.A.D.A. Valuations, and all enhancements and derivative works therefrom, are the sole property of NADASC, and are subject to a claim of valid copyright. Customer acknowledges that NADASC has created the N.A.D.A. Valuations and the NADASC Licensed Database at great time and expense and that the N.A.D.A. Valuations and the NADASC Licensed Database contain confidential and proprietary information protected by copyright and trade secret laws. Customer further acknowledges that certain of its employees will become familiar with the NADASC Licensed Database, and that NADASC may suffer great harm if Customer, or its employees disclose the NADASC Licensed Database to a third party in violation of this Agreement. Customer, therefore, agrees to: (a) hold the NADASC Licensed Database in strict confidence; (b) disclose the NADASC Licensed Database only to Customer’s employees to whom knowledge is required for its proper use hereunder; (c) cause such employees to hold the NADASC Licensed Database in strict confidence; and (d) take steps to prevent the accidental or otherwise unauthorized disclosure of the NADASC Licensed Database. The confidentiality obligations of Customer contained in this paragraph will survive termination of this Agreement.

e.     Customer agrees that it will not use the Licensed Products to interrogate and encode Vehicle Identification Number (VIN) information for any purpose other than valuing used cars and trucks. This restriction includes, but is not limited to, using the Licensed Products to generate motor vehicle registration, title statistics or vehicle population statistics derived from motor vehicle information. Notwithstanding the foregoing, Customer will be permitted to use the Licensed Products and the N.A.D.A. Valuations to generate other data not prohibited herein.

f.     Customer further acknowledges and agrees that any misuse of NADASC’s trademarks hereunder may cause irreparable harm to NADASC, and Customer agrees that NADASC may be entitled to equitable relief to protect its interests therein, including the entry of an injunction against Customer barring any such improper use.

g.     Except as otherwise set forth herein, nothing in this Agreement will give Customer any interest or license in any trademark, logo or trade name owned or licensed by NADASC, and Customer specifically agrees to refrain from using any NADASC trademark without the express written approval of NADASC.

ii.  Customer’s use of Black Book® Data. If Customer subscribes to the Black Book data as part of the Products, Customer agrees:

a.  Except as otherwise expressly permitted herein, Customer will not, and will not allow others to directly or indirectly (i) copy or reproduce in any form or medium all or any part of the data contained in the electronic version of the printed periodicals entitled: the Black Book® Official Vehicle Identification Guide, the Black Book® Official Used Car Market Guide, the Black Book® Official Used Truck and Van Guide, and the Black Book® Official Old Car Market Guide (the ‘‘Black Book Database’’) (except as specifically enabled by the System); (ii) create any derivative work from, or adaptation of the Black Book Database; (iii) assign, transfer, sell, or otherwise publish, communicate, distribute or display to third parties, in any form or medium all or any part of the Black Book Database other than in the Licensed Products; (iv) create or provide any valuation guides or services based in whole or in part on the data from the Black Book Database, alone or in combination with any other data; (v) download the Black Book Database to PCs or any other computer or electronic device or store the Database in a retrieval system; or (vi) make the Black Book Database or related documentation available to any third party using any medium unless specifically provided for in this Agreement.

b.  Customer acknowledges that the license granted to Customer by DealerSocket to use the Black Book Valuations is personal, nontransferable and nonexclusive. Black Book is a third party beneficiary of this Agreement and may enforce its rights hereunder directly against Customer. Failure of Black Book at any time to enforce its rights under this Agreement will in no manner affect its rights at a later time to enforce the same.

c.  Customer agrees that Black Book owns all rights, title and interest in and to the Black Book Valuations including all literary property rights, copyrights, trademarks, trade secrets, trade names or service marks, including goodwill and all rights, title and that all rights, title and interest will remain with Black Book and use of the Black Book Database by Customer or any information therein by any person or firm other than Customer or its employees is prohibited. Customer will keep confidential the Black Book Database and use its best efforts to prevent and protect the contents of the Black Book Database from unauthorized disclosure, copying or use. The Black Book Database is protected by copyright, registered U.S. Patent Office Reg. No. 767893.

 

iii.  Customer’s Use of Kelley Blue Book Data. If Customer subscribes to Kelley Blue Book data as part of the Products, Customer agrees:

a.      The new and used vehicle pricing and/or specifications information provided and updated from time to time by Kelley, and all improvements, additions, derivatives and other modifications thereto, and any information pertaining to the foregoing (the “Kelley Data”) are the exclusive property of Kelley and will be considered and treated by Customer as the proprietary information of Kelley (the “Kelley Proprietary Information”). With the exception of authorized users’ use of the Kelley Data through the Licensed Products in accordance with this Agreement, Customer agrees not to, directly or indirectly, disclose, sell or otherwise transfer or exploit the Kelley Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use the Kelley Proprietary Information, or any portion thereof.

b.     Customer acknowledges and agrees that Kelley is the owner of the trade names, trademarks and service marks “Kelley Blue Book,” “Blue Book,” “Bluebook,” and the Kelley Blue Book seal and such other names, marks, and logos and other intellectual property Kelley used, uses or may in the future use in or related to its business, products or services, including, without limitation, all improvements, additions, derivatives and other modifications thereof (“Kelley Marks”) and the Kelley Proprietary Information and Customer agrees that it has no right, title, or interest in any of the Kelley Marks or Kelley Proprietary Information except the right to use the Kelley Marks and the Kelley Proprietary Information in accordance with and subject to this Agreement. Customer further agrees not to challenge or assist with or participate in any challenge, directly or indirectly, of Kelley’s ownership of the Kelley Marks and the Kelley Proprietary Information or any right, title or interest therein or any portion thereof.

3.     Customer REPRESENTATIONS and obligations

3.1      Authorized Users. Customer is responsible for monitoring use of and access to the Products by its authorized employees or individual contractors (“Users”) and will only permit Users to access and use the Products in accordance with the terms of the Agreement and the terms of DealerSocket’s end-user license agreement available at www.dealersocket.com/terms-conditions to which each User will be bound. DealerSocket reserves the right to update the end-user license agreement at any time, in its sole and absolute discretion, and without prior notice to Customer or Users. Each User will be assigned a single-user login credential (“User Credentials”). User Credentials may only be used by a single user, must not be shared with any other individual, and, under no circumstances may any User Credentials be created for or provided to a third-party entity that provides other products or services to Customer dependent on, in connection with, or by accessing any Products. DealerSocket has no obligation to verify the identity of any person who gains access to the Products by means of User Credentials, and DealerSocket may rely on the instructions and actions of Users as being those authorized by Customer. Customer must immediately take all necessary steps, including providing notice to DealerSocket, to affect the termination of User Credentials for any User if there is any compromise in the security of those User Credentials or if unauthorized use is suspected or has occurred.

3.2      Cooperation. Customer must provide DealerSocket with good faith cooperation and access to such information, facilities, personnel and equipment as reasonably may be required by DealerSocket from time to time in order to provide the Products, including, but not limited to, providing security access, information, and software interfaces to Customer’s applications, and Customer personnel. Customer acknowledges and agrees that DealerSocket’s performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder and timely decisions and approvals of Customer in connection with the Products. Customer is responsible for ensuring authorization of instructions from its employees to DealerSocket.  For the avoidance of doubt, any failure by Customer to comply with this section will be considered a material breach of the Agreement.

3.3      Acceptable Use Policy and Compliance with Applicable Laws. Customer acknowledges that DealerSocket does not monitor the content of communications or data of Customer or its Users uploaded in or transmitted through the Products, and that DealerSocket will not be responsible for the content of any such communications or transmissions.  Customer must use the Products exclusively for authorized and legal purposes, consistent with all applicable laws and regulations, including without limitation the US CAN-SPAM Act of 2003, 15 U.S.C. 7701, any other national, state or local restrictions on the use of email, the Telephone Consumer Protection Act of 1991, as well as all other local, state, federal or national law which govern the use of, sending or receiving text messages. Further, Customer must at all times comply with the terms of 18 U.S.C. § 2721, as may be amended from time to time, regarding the authorized use and disclosure of “personal information” and “highly restricted personal information” (as defined in 18 U.S.C § 2725). Customer agrees not to post on any applicable Products any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses or other contaminating or destructive features; (c) violates the rights of others, such as data which infringes on any Intellectual Property (as defined in Section 6.1 below) rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law (including, without limitation, the laws and regulations governing consumer protection and privacy, export control, unfair competition, text messaging, or false advertising). Customer further agrees not to use the Products to solicit users to join or to procure products or services competitive to the Products. DealerSocket reserves the right to delete, move or edit any Customer content that it may reasonably determine, in its sole discretion, violates the Agreement or is otherwise inappropriate for posting. Customer agrees to defend, indemnify, and hold harmless DealerSocket and any of its subsidiaries, affiliates, suppliers, and their directors, officers, agents or employees against any and all liability associated with Customer’s or its Users’ breach of this section.  The references above that specify U.S. laws and regulations are intended to govern U.S. customers only; however, this does not exclude non-U.S. customers from obligations under their own national, provincial, state or local laws.

3.4      Do Not Call List. Customer may elect to use the Do Not Call List feature of DealerSocket.  It is the sole responsibility of Customer to purchase the list applicable to its marketing activities and business and to upload the Do Not Call List into the Products using the Do Not Call List import utility.  Customer acknowledges that it assumes full responsibility for Do Not Call List compliance and Customer understands that the Products and Do Not Call List feature are simply tools that may assist Customer in satisfying its compliance obligations.

4.      DEALERSOCEKT RIGHTS, OPBLIGATIONS, AND DISCLAIMERS

 

4.1     General Warranty Disclaimer. DealerSocket makes and the Customer receives no warranties, express, implied, or statutory with respect to the Products provided under the Agreement.  Except as expressly set forth in THE Agreement, the Products are provided “as is,” and “as available’ without warranty of any kind, either express or implied, including without limitation, any warranties concerning the availability, accuracy, usefulness, security or content of information, products or services, any warranties with respect to training services, or any warranties of merchantability, fitness for a particular purpose or non-infringement. Customer assumes all responsibility for the use and results obtained from the Products.  DealerSocket does not warrant that the Products will be free of error, viruses or other malicious code, will be uninterrupted or that all errors will be corrected or that the Products will operate in combination with Customer’s content or applications, or with any other hardware, software, systems, services or data not provided by DealerSocket. Customer acknowledges that the Products may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications.  DealerSocket does not therefore guarantee that Products will be available at all times. DealerSocket is not responsible for any delays, delivery failures, or other damage resulting from such problems. DealerSocket does not provide any warranty or support for Customer’s system deployment, administration, or MODIFICATIONS THEREIN. No oral or written information provided by DealerSocket or its employees or representatives will create any warranty, and this warranty disclaimer supersedes any such information.

4.2      No Tax or Legal Advice.  DealerSocket does not and will not be deemed to provide tax or legal advice in providing the Products. DealerSocket will use reasonable efforts to ensure that the Products are current and accurate but changing tax rates and financial regulations will require interpretation by Customer’s qualified tax and legal professionals. Customer bears full responsibility to determine the applicability of the output generated by the Products and confirm its accuracy. Customer is solely responsible for any liabilities, penalties, or interest related, but not limited, (a) to the proper application of all applicable taxes and fees in sales contracts in any form, whether provided by DealerSocket or not, for the sale, lease or other form of sale of a vehicle to a customer, (b) the proper determination of Customer’s nexus to any jurisdiction, (c) the applicability of taxes for Customer’s Products, (d) Customer’s failure to perform any obligation or responsibility under the Agreement or any other act or omission by Customer.

4.3      Connections over the Internet.  Customer acknowledges that use of or connection to the internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the Products. Accordingly, NOTWITHSTANDING SECTION 2.7, DealerSocket cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the internet.

4.4      Legal Compliance.  Without limiting the generality of the disclaimers in these Terms, DealerSocket, its affiliates and suppliers make no representation, warranty, or guaranty that the licensed Products are compliant with any law, rule, regulation, statute or other legal requirement. Customer bears the sole responsibility for legal compliance relating to the use of the licensed Products.

4.5      Third-Party Products.  Certain Products may include software, information or equipment provided by third parties (“Third-Party Products”). The Third-Party Products are licensed to Customer, not sold, and Customer agrees that Customer and its Users’ use of such Third-Party Products is subject to, and it and its Users must abide by, any end user license agreement related to such Third-Party Products. Nothing in the Agreement prevents such third party from enforcing its rights directly against Customer. DealerSocket may immediately terminate Customer’s subscription in whole or in part to any Third-Party Product if DealerSocket no longer has the right to provide the respective Third-Party Product under an applicable third-party license. Customer will have no remedy against DealerSocket with respect to Third-Party Products, and Customer’s sole remedy for failure of a Third-Party Product will be against such third party. Customer’s license of a Product with third-party integration features will be considered consent to such third-party integration.

4.6      Disclaimer for Third-Party Products. The Products may provide, or third parties may provide, links to other web sites or resources. DealerSocket is not responsible for the availability or accuracy of such external resources. DealerSocket does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Third party software is made available by DealerSocket on an “as is, as available” basis. DealerSocket is not a publisher of the information supplied by Third-Party Products. Any information expressed or made available by third parties is that of the respective authors or distributors and not of DealerSocket.

4.7      Disclaimer for Forms. DealerSocket, through its Products, makes certain documents and forms available for use by Customer. Customer acknowledges that documents and forms accessible in the Products are made available to Customer solely as a convenience to Customer. DealerSocket makes no representations or warranties that any document or form Customer obtains from the Products WILL BE IN COMPLIANCE WITH APPLICABLE LAW OR SUITABLE FOR ANY PARTICULAR USE IN CONNECTION WITH CUSTOMER’S BUSINESS. Customer assumes all responsibility for the use, ACCURACY, SUITABILITY, LEGAL and regulatory COMPLIANCE, and results obtained from the Forms, forms printing, formulas or calculations, modified payment calculations, interest disclosures, modified payoff calculations, fee assessments, use of applicable legal interest rates, add-on rates, or annual percentage rates. Customer agrees to defend, indemnify and hold harmless DealerSocket and its affiliates from any and all claims relating to the use by Customer of the documents and forms, including customized documents and forms, accessible in the Products. 

5.     CONFIDENTIALITY

5.1      Confidential Information. “Confidential Information” means all non-public proprietary or confidential information of a disclosing party, in oral, visual, written, printed, electronic, or other tangible or intangible form, whether or not marked or designated as “confidential” or which would reasonably be considered confidential or proprietary in view of its relationship to the whole disclosure. Confidential Information will also include, without designation or limitation: (i) these Terms and any Order, and the course of dealing between the parties; (ii) DealerSocket’s software or hardware Products that may include source code, API data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods; (iii) information relating to the disclosing party’s finances, business, marketing, product development, research and development, technical plans, pricing, competitor information, strategies and methods; (iv) any data, information, or material that Customer or any User enters, inputs, or stores in the Products, including, but not limited to consumer and vehicle information (“Customer Data”). Notwithstanding the above, DealerSocket may aggregate and de-identify data for its use, which data will not be considered Customer Data or Confidential Information under the Agreement. Data fields generated by the Products (such as ID numbers) are necessary for the cohesive interaction of the Products, will not considered Customer Data, and may not be modified by any party other than DealerSocket. Confidential Information disclosed by a subsidiary of the disclosing party or an agent of the disclosing party is covered by these Terms. Confidential Information does not include any information that: (i) entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) became known to the receiving party prior to the disclosing party’s disclosure of such information to the receiving party; (iii) became known to receiving party from a source other than the disclosing party other than by the breach of an obligation of confidentiality owed to the disclosing party; or (iv) was independently developed by the receiving party. 

5.2      The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret the other party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. Neither party may remove any proprietary mark or restrictive notice contained or included in any material provided by the disclosing party. Either party may only access or use Confidential Information to fulfill its obligations under the Agreement.

5.3      The parties agree that the unauthorized disclosure of Confidential Information may cause irreparable harm to the party whose information is disclosed and that such party will be entitled to request injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of posting any bond.

6.    INTELLECTUAL PROPERTIES RIGHTS

6.1      The Products and all equipment, infrastructure, websites and other materials or deliverables provided by DealerSocket, and all Intellectual Property relating to the foregoing, will at all times remain the exclusive, sole and absolute property of DealerSocket or its licensors. “Intellectual Property” means technology, inventions, know-how, designs, formulae, techniques, methodologies, procedures, processes, tools, utilities, ideas, models, templates, content, photographs, audio and video clips, and other works of authorship, software, source code, algorithms, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, and any document or other materials embodying any of the foregoing, whether or not any of the same are patentable or copyrightable. Customer does not acquire any right, title, or interest in or to such Products, or equipment, materials and deliverables, except the limited and temporary right to use them as necessary for Customer’s access to and use of the Products. All rights, title and interest in or to any Intellectual Property relating to the Products and DealerSocket’s trademark, logos, and product names, are reserved and all rights not expressly granted are reserved by DealerSocket and its licensors. Customer must not obscure, alter or remove any copyright, patent, trademark, service mark or proprietary rights notices on any Products or other materials. Any Intellectual Property that DealerSocket conceives independently or pursuant to any Order will belong solely to DealerSocket. The parties mutually acknowledge that DealerSocket owns all right, title and interest in and to such Intellectual Property including without limitation the Intellectual Property rights relating thereto and may use such Intellectual Property in its business operations with other customers, without limitation.  DealerSocket will exclusively own all right, title, and interest to data produced by DealerSocket’s systems and networks in the course of the delivery of the Products.   

7.    LIMITATION ON LIABILITY

EXCEPT FOR LIABILITY UNDER SECTIONS 2, 5, 6, or 8.2 Neither DealerSocket nor any of its directors, officers, employees, contractors, agents, affiliates, successors, assigns, or service providers, will be liable to Customer or any third party for any indirect, incidental, special, exemplary, statutory or consequential damages  in connection with or arising out of the delivery, performance or use of the Products or materials provided by DealerSocket, whether alleged as a breach of contract or tortious conduct, including without limitation negligence, strict liability, loss of business profits, business interruption, loss of business information, loss of use or data, damage to systems or equipment, cost of cover, or other pecuniary loss, even if DealerSocket has been advised of the possibility of such damages. The cumulative liability of DealerSocket to Customer for any claims, whether arising in contract, tort, or otherwise, will not in any event exceed the amount of service fees paid hereunder in the 6-month period preceding the event giving rise to the claim. The foregoing allocation of risk and limitation of liability has been negotiated and agreed by the parties and forms the basis of their willingness to enter into the Agreement.

8.     INDEMNIFICATION

8.1      By DealerSocket. Subject to the limitation of liability in Section 7, DealerSocket will indemnify and hold harmless Customer from and against any and all liabilities, damages, losses, costs and expenses payable to third parties based upon any claim alleging the Products infringe on a United States patent or copyright, or is a misappropriation of any trade secret (an “Intellectual Property Claim”), provided that Customer: (i) promptly notifies DealerSocket of the claim; (ii) provides DealerSocket with all reasonable information and assistance to defend or settle such a claim; and (iii) grants DealerSocket exclusive authority and control of the defense or settlement of such claim. DealerSocket will have no liability for any Intellectual Property Claim that arises out of Customer’s use of the Products in violation of the Agreement, modification of the Products by anyone other than DealerSocket, or third-party products and services used by Customer in combination with the Products where such combination made the Products infringing. This Section 8.1 states the entire liability of DealerSocket and the exclusive remedy of Customer with respect to the infringement of any Intellectual Property rights by DealerSocket. 

8.2      By Customer. Customer agrees to indemnify, defend, and hold harmless DealerSocket or any of its subsidiaries, affiliates, suppliers, and their directors, officers, agents, or employees against any and all claims associated with Customer’s or Users’ failure to comply with the Agreement. Customer will defend, indemnify and hold DealerSocket harmless from and against any and all liabilities, damages, losses, costs and expenses (including reasonable fees of attorneys and other professionals) payable to third parties based upon any claim alleging that Customer Data, or Customer’s use of any Product, violates or infringes any rights of a third party or violates any applicable law.

9.     BILLING AND PAYMENTS

9.1      Set-up Fees, One Time Fees, and Last Month’s Fees. Upon signing an Order, Customer will be required to pay any set-up fees and one-time fees contained therein, as well as last month’s fees for the Products listed in that Order. DealerSocket will not have any obligation to commence set-up for any Products for which Customer owes and has not paid such fees. Unless otherwise stated in the Order, out-of-pocket, travel, and lodging expenses incurred by DealerSocket in connection with on-site set-up of Customer’s Products will be billed to Customer at cost.

9.2      Payment of Fees. DealerSocket bills in advance for Products. DealerSocket’s billing cycle follows the calendar month. In its discretion, DealerSocket may pro-rate the first month’s fee. Payment is due on the first day of a calendar month. After 30 days, interest will accrue on past due balances at the lesser of 1.5% per month or the highest rate allowed by law. Customer shall reimburse DealerSocket for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting amounts due DealerSocket hereunder that are not under good faith dispute by Customer.

9.3      Fee Increases. Once per year and upon 30 days’ prior written notice, DealerSocket may increase the monthly fees for any Products in any Order, or any other agreement that licenses the Products, by up to 5% or by a percentage equal to the current Consumer Price Index. DealerSocket may increase integration fees or any other third-party component fees included in DealerSocket’s Products in any Order at any time upon 30 days’ written notice.

9.4      Taxes. Customer is responsible for payment of all taxes (excluding those on DealerSocket’s net income) relating to the provision of the Products, except to the extent a valid tax exemption certificate or other written documentation acceptable to DealerSocket to evidence Customer’s tax exemption status is provided by Customer to DealerSocket prior to the delivery of Products.

9.5      Credit Card Payments. All dollar amounts referenced on an Order reflect the cash price for the stated use of the Products.  If Customer elects to pay via credit card, Customer will pay the non-cash price and will need to complete a separate form with DealerSocket authorizing the use of Customer’s credit card to pay the agreed non-cash amounts.

9.6      OEM Programs. If Customer participates in cost-sharing or other promotional programs with an original equipment manufacturer (an “OEM”), then the fees in an Order will be billed in accordance with the agreement that Customer has with such OEM. In the event the OEM discontinues the program for any reason, or Customer or the OEM terminates Customer’s participation in the program for any reason, Customer will be solely responsible for all fees contained in the Order.

10.  MISCELLANEOUS

10.1 Request for Customer Data. Within 30 days after the effective date of termination or cancellation, Customer may request DealerSocket make available to Customer for download a file of Customer Data in comma separated value (.csv) format or in backup file (.bak) format along with attachments in their native format. Upon such request, DealerSocket will provide Customer the requested data; provided, however, that DealerSocket will have no obligation to provide Customer with access to the data if Customer is in breach of any of its obligations under the Agreement, including but not limited to, its payment obligations. DealerSocket will have no obligation to maintain or provide any Customer Data more than 30 days past the effective date of termination or cancellation, and will thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. Requests for Customer Data downloads at any other time will be subject to DealerSocket’s reasonable discretion and additional fees.

10.2 Compliance by Customer. Without prejudice to DealerSocket audit rights pursuant to this section, upon DealerSocket’s request Customer will document and certify that its’ use of the Products is in full conformity with the use rights granted under the Agreement. During the term of any Order and for a period of one year following its termination or cancellation, Customer must maintain and make available to DealerSocket, upon ten days’ written notice, records sufficient to permit DealerSocket or DealerSocket’s independent auditor to verify Customer’s compliance with the Agreement. Customer agrees to provide access to personnel, systems, and information in a timely manner as requested by DealerSocket to complete the compliance verification. If the audit reveals Customer is not in compliance with the Agreement, Customer agrees to reimburse DealerSocket’s reasonable costs and expenses of such verification process (including, but not limited to the fees of an independent auditor), and Customer will promptly cure any noncompliance, including, without limitation, payment of all Product fees accrued during the period of noncompliance. The rights and remedies provided in this section are in addition to any other rights DealerSocket may have at law or equity or under the Agreement.

10.3 Survival. Sections 1.5, 2.2, 4.2, 4.7, 4.8, 5, 6, 7, and 8.2 will survive termination or cancellation of any Order.

10.4 Assignment.  The Agreement is binding upon and will inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns. No party may assign the Agreement or any of its rights and obligations hereunder without the prior written consent of the other party; provided, however, that DealerSocket may assign the Agreement and all of its rights and obligations hereunder as part of a merger or sale of substantially all the assets or stock of DealerSocket.  Any assignment by Customer in violation of this section is null and void.

10.5 Reference.  Customer agrees to be available for reference calls, site visits, publication interviews, marketing case studies and other potential activities.

10.6 Entire Agreement and Modifications.  Each party acknowledges that it has read the Agreement and agrees that the Agreement is the complete and exclusive statement of the parties and supersedes and merges all prior proposals understandings and agreements, oral or written, including but not limited to any conflicting terms in any prior written contract, between the parties relating to the subject matter hereof, including without limitation, the terms of any customer request for proposal or the standard printed terms on any customer purchase order.  No modification, amendment or supplement to the Agreement or an Order will be binding upon the parties hereto unless made in writing and duly signed by the authorized representatives of both parties.

10.7 Choice of Law; .  The Agreement will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to principles of conflicts of law. Venue for any litigation will be in the courts of appropriate jurisdiction in Irving, Texas. The prevailing party will be entitled to receive from the other party its attorney’s fees and costs incurred in connection with any action or proceeding.

10.8 Severability Waiver.  In the event any provision hereof is deemed invalid or unenforceable by any court or governmental agency of competent jurisdiction, such provision will be deemed severed from the Agreement and all remaining provisions will be afforded full force and effect as if such severed provision had never been a provision hereof.  No consent or waiver, express or implied, by any party to or of any breach by the other in the performance by the other of its obligations hereunder will be deemed or construed to be a consent or waiver to or of any other breach in the performance by such other party of the same or any other obligation of such party hereunder.

10.9 Dispute Resolution. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, the parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by confidential negotiations between persons who have authority to settle the controversy. All such negotiations shall be treated as compromise and settlement negotiations for purposes of the relevant rules of evidence. If the parties cannot reach an amicable resolution through this process within 20 business days, the parties may, if mutually agreeable, attempt to settle the dispute by mediation to take place in Dallas, Texas, at the JAMS Dallas Resolution Center. Any costs associated with mediation other than a monetary settlement shall be shared equally by the parties.

10.10 Non-solicitation. To the maximum extent permitted by law, during the term of any Order and for 12 months thereafter, neither Customer nor DealerSocket will knowingly solicit or hire for employment or as a consultant, any employee or former employee of the other party who has been actively involved in the subject matter of the Agreement.

10.11 Force Majeure.  Neither party will incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of the Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this provision, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, explosions, any law or direction of any governmental entity, emergencies, civil unrest, viruses or denial of service attacks, telecommunications failure, or failure of the internet or internet service provider. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

10.12 Notices.  With the exception of cancellation notices by Customer which must be sent by email to notices@dealersocket.com, any notice required or permitted under the Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person and address set forth in the signature block of the Order. Notices will be considered to have been given at the time of actual delivery in person, two business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service, provided in each case that delivery in fact is affected. Either party may change its contact person and address for notices by means of notice to the other party given in accordance with this section.