DEALER FOCUS LLC. – TERMS AND CONDITIONS
These Terms and Conditions (the “Terms”) are incorporated by reference into all Quotations and Order Forms for Dealer Focus services and products executed by a Customer identified in an applicable Quotation or Order Form. The Dealer Focus services and products to which Customer subscribes in a Quotation or Order Form will collectively be referred to as the “Software Offering” and “Service Offering” herein. These Terms, including the Quotation and Order Forms, any schedule or addenda thereto, and all associated terms of use within the Software and Service Offerings, will collectively be the entire agreement (the “Agreement”) by and between Dealer Focus and Customer (the “Parties”).
1. Software and Service Offerings
1.1 Access and Use. Subject to and conditioned on (i) Customer’s compliance with the terms and conditions of the Agreement, and (ii) Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Software and Service Offerings under the rights granted to Customer pursuant to this Agreement (“Authorized Users”) compliance with the terms and conditions of this Agreement, Dealer Focus hereby grants Customer a non-exclusive, non-transferable, limited license to access the Software Offerings and right to use the Service Offerings during the Term, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement. Such use is limited to Customer’s internal use. Customer will not share or provide access usernames or passwords to any unauthorized third-party and will notify Dealer Focus without delay of any breach of security. Customer is solely responsible for any negligent or reckless actions of its Authorized Users who are granted access to the Software and Service Offerings.
1.2 Ownership. Dealer Focus expressly reserves all rights in the Software and Service Offerings not expressly granted to Customer hereunder. With respect to the Software Offerings, the license grant set forth above does not grant or transfer any ownership rights in any Software Offering. No rights whatsoever in or to any source code are granted by this Agreement.
1.3 Restrictions. The Software and Service Offerings are for use solely by Customer and its Authorized Users. Customer shall not decompile, reverse engineer, disassemble, transfer, assign, distribute, resell, sublicense, copy, rent, or create any derivative work from all or any part of any Software or Service Offering. Customer shall not make all or any part of any Software or Service Offering available to any third party except as expressly contemplated hereunder in the normal course of Customer’s internal use of the Software or Service Offering. Customer shall not circumvent or disable any security or other technological features, or measures associated with any Software or Service Offering. Customer shall not use its access to any Software or Service Offering hereunder to create or develop, or assist another in creating or developing, a product or service that would compete with the Software or Service Offering. Customer shall use the Software and Service Offerings only in compliance with all applicable laws and regulations and in a manner that does not infringe upon the rights of any third-party.
1.4 Right to Suspend. Dealer Focus may suspend Customer’s right to use any Software or Service Offering in the event Customer is in breach of the Agreement and fails to cure such breach within ten (10) days of notice thereof, or immediately in the event Dealer Focus reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of such Software or Service Offering or to prevent an ongoing violation of any applicable law, rule, or regulation. Dealer Focus will use commercially reasonable efforts to notify Customer at least 24 hours prior to any such suspension and will only suspend the Software or Service Offering to the extent necessary to prevent such unauthorized use or violation.
1.5 Implementation Timing. Dealer Focus shall not be responsible for any delay by Customer in implementing any Software or Service Offering, and no such delay shall impact or alter the fees due under the Agreement with respect to such Software or Service Offering. All fees set forth on the Quotation shall become due as set forth therein.
1.6 Change of Services. Customer acknowledges and agrees that Dealer Focus may change or cancel any individual Software or Service Offering at any time by providing notice of such change or cancellation to Customer. Such notice shall not alter the Term of the Agreement except as to a particular Software or Service Offering cancelled by such notice, which, for that purpose, shall be deemed a notice of termination for convenience by Dealer Focus as to such service.
2. Customer Responsibilities.
2.1 Representations. Customer represents and warrants that it is in compliance with all federal and state laws, rules, and regulations and shall remain so throughout the Term. Customer represents and warrants that all data provided to Dealer Focus in connection with the Agreement, meets and satisfies all such laws, rules and regulations, including per the FCC Under 47 C.F.R. § 64.1200 (f)(8). Customer further represents and warrants that it has obtained all necessary consents, including “prior express written consent” (See 47 C.F.R. § 64.1200 (a)(1)-(2)) from each individual whose data will be provided to Dealer Focus to be used in the Software and Service Offerings. CUSTOMER WILL NOT USE THE SOFTWARE OR SERVICE OFFERINGS TO SEND, OR CONTRACT DEALER FOCUS TO SEND ON ITS BEHALF, ANY COMMUNICATION OF ANY KIND, INCLUDING, WITHOUT LIMITATION, VOICE MESSAGES OR TEXT, TO ANY INDIVIDUAL OR WIRELESS DEVICE UNLESS CUSTOMER HAS OBTAINED AN APPLICABLE LEGALLY COMPLIANT “OPT-IN” CONSENT FROM THE APPLICABLE INDIVIDUAL TO RECEIVE SUCH COMMUNICATIONS.
2.2 Opt-Outs. Customer shall promptly inform Dealer Focus of any “opt out” by any individual regarding any type of communication, including a request by any individual to be put on a “Do Not Call” “Do Not Mail” or “Do Not Email” list. Customer is solely responsible for compliance with all requirements related to making “opt out” options available to consumers and for informing Dealer Focus related to any such “opt out” received.
2.3 Non-electronic Data. Customer will provide, in a timely manner and mutually agreed format, any data not available electronically that may be applicable to the delivery of a particular Software or Service Offering, including, without limitation, when applicable Sales, F & I, Parts & Service data.
2.4 Customer Information. Customer will immediately notify Dealer Focus of any personnel changes that may affect Dealer Focus’s ability to provide the Software or Service Offerings. Customer will provide Dealer Focus with thirty (30) days advance notice of any computer system or infrastructure changes that may affect Dealer Focus’s ability to provide any Software or Service Offerings.
2.5 In addition to any responsibilities and obligations of Customer as set forth elsewhere in the Agreement, and without limiting any of the same, Customer shall:
2.5.1 Adopt, maintain, and use reasonable and appropriate security measures to maintain the confidentiality of all Confidential Information, protect the secrecy of all access credentials made available to Customer for use of any Software or Service Offerings under the Agreement, and secure Customer’s access and use of all Software or Service Offerings under the Agreement against malicious code, unauthorized access, or tampering;
2.5.2 Comply with all applicable laws, rules, and regulations;
2.5.3 Obtain and maintain proper and sufficient permissions and authorizations for the use of all third-party data and intellectual property, including, without limitation, all personal data or information of any individual that will be provided to Dealer Focus or used in connection with the Agreement;
2.5.4 Only use Dealer Focus’s Software and Service Offerings in a manner that is consistent with the positive reputation of Dealer Focus and its Software and Service Offerings in the marketplace and preserves for Dealer Focus the goodwill associated with Dealer Focus and its Software and Service Offerings;
2.5.5 Not take any action or inaction designed to, that is reasonably likely to, or actually does harm the reputation of Dealer Focus or its Software and Service Offerings, or the goodwill associated with any of Dealer Focus’s trade names, trademarks, or service marks;
2.5.6 Cooperate with Dealer Focus as reasonably requested to facilitate Dealer Focus’s performance of its obligations under the Agreement, including providing reasonable access to Customer’s systems, data, and facilities; and
2.5.7 Make all decisions related to the appropriateness of data supplied to Dealer Focus for use in connection with any Software or Service Offering provided to Customer under this Agreement, and to the appropriateness of the use of such data pursuant to any Software or Service Offering provided to Customer under this Agreement. For all Software and Service Offerings, Customer shall be solely responsible for its compliance with all privacy and consumer protection laws relating to this Agreement, including Telephone Consumer Protection Act (“TCPA”), Graham-Leach-Bliley Act, the CAN-SPAM Act, and all other applicable laws similar thereto or otherwise relating to consumer privacy, security, or protection. Customer acknowledges and agrees that Dealer Focus will be relying on Customer with regard to compliance with such laws including, without limitation, the selection of consumers with whom to communicate, the selection of communications targeted to such consumers, and receiving and tracking any opt-outs from any end consumer. Customer will ensure it has all necessary permission to disclose consumer information to Dealer Focus and authorize Dealer Focus to process Customer data as required and contemplated hereunder. Customer shall be solely responsible for any violation of applicable consumer protection laws to the extent Customer authorized or requested Dealer Focus’s Software or Service Offerings to communicate to Customer’s current, prospective, or former end consumers.
3. Third Party Software
3.1 Definition. “Third-Party Software” means computer software programs or other products or services providing application functionality, proprietary to third parties which are embedded in, accessed through, or designed to be used in conjunction or association with a Software or Service Offering.
3.2 Third-Party Software Terms. Where Customer elects to obtain access to Third Party Software in connection with any Software or Service Offering hereunder, such Third-Party Software will be identified on the applicable Quotation document and will be made available to Customer by Dealer Focus in connection with Dealer Focus’s Software and Service Offerings hereunder. All Third-Party Software is made available to Customer solely pursuant to the terms and conditions provided by the applicable third party with respect to such Third-Party Software. Dealer Focus makes no representations or warranties of any kind with respect to any Third Party Software and Customer agrees that Dealer Focus shall have no responsibility, liability, or obligation with respect to the Third Party Software except solely to make the applicable Third-Party Software available to Customer as set forth herein. Customer should refer to the terms and conditions applicable to each Third-Party Software before using it. Any warranty regarding Third-Party Software is solely as made by the applicable third party to which the Third-Party Software is proprietary.
4. Data Access Terms
4.1 Access. THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA. Customer agrees to have Dealer Focus access Customer’s systems or systems maintained on Customer’s behalf for the storage of data related to Customer and its customers, including, where applicable Customer’s dealer management system (collectively, Customer’s “DMS”), to obtain the data necessary to provide services hereunder. Customer hereby authorizes Dealer Focus to access Customer’s DMS to retrieve data to perform services and provide Software Offering functionality hereunder. Customer shall execute such forms and provide such approval and direction to Customer’s third-party data provider as that provider may require to authorize and facilitate Dealer Focus’s access to Customer’s DMS for the purposes set forth herein.
4.2 Purpose. Dealer Focus may access Customer’s DMS and retrieve and use data solely to perform services for Customer, to integrate with or facilitate the functionality of the Software and Service Offerings, and to improve its Software and Service Offerings. Dealer Focus will not use data accessed from Customer’s DMS for any other purpose except as expressly authorized herein or by Customer in writing. Dealer Focus will comply with all restrictions relating to DMS access and data retrieval and use specified in the Agreement.
4.3 Restriction. Customer shall not cause any data to be provided or made available to Dealer Focus unless Customer has obtained all necessary authorizations and permissions with regard to such data to: (i) provide such data to Dealer Focus hereunder; and (ii) authorize Dealer Focus to process such data in connection with undertaking the activities contemplated hereunder. Customer represents and warrants that Dealer Focus may copy, store, process, distribute, display, and use any data provided or made available to Dealer Focus by Customer hereunder for the purposes and in connection with the activities contemplated hereunder.
4.4 DMS Changes by DMS Provider. The Parties acknowledge that in the event of changes by a DMS provider, a Software or Service Offering may lose integration with a particular DMS. In the event the Software or Service Offering does not maintain integration with Customer’s DMS, Dealer Focus shall have thirty (30) days to regain integration with the applicable DMS. In the event Dealer Focus does not regain integration between the Software or Service Offering and Customer’s DMS within such thirty (30) day period, Customer hall have the option to terminate the Agreement with regard to the applicable Software or Service Offering by providing notice to Dealer Focus of its intent to so terminate. Such termination shall be effective as of the date of Customer’s notice. Dealer Focus shall have no further liability or obligation to Customer regarding such Software or Service Offering following or as a result of such termination.
4.5 Monthly Data Acquisition fee/DMS Integration Costs. Any integration cost listed in the Agreement is due upon activation, regardless of when Customer actually begins using the integration. In the event of any increase in integration costs, Customer agrees to be responsible for such costs. Customer acknowledges that the Monthly Data Acquisition fee arises from integrating the Software or Service Offerings with Customer’s Data Management System (“DMS”) and is necessary to Dealer Focus’s ability to provide the Software or Service Offerings. Notwithstanding any verbal or written understanding or agreement to the contrary, Customer acknowledges that Monthly Data Acquisition fees, and associated DMS Transaction Fees (as defined below) may be increased at any time by invoice, regardless of Term duration, and Customer will pay all Monthly Data Acquisition fees as invoiced. Customer’s use of Software or Service Offerings on certain DMS types may be subject to an additional fees per DMS transaction processed by the Software or Service Offerings (the “DMS Transaction Fee”). Any alterations to the product or package selections of Software or Service Offerings will incur change fees.
4.6 Non-Interfaced DMS. Customer acknowledges and agrees that in the event Customer uses or switches to a DMS with which Dealer Focus does not maintain an active interface, that may render features of certain Software or Service Offerings inoperable and may result in additional costs if full interface is able to be provided and desired.
4.7 Notice of DMS Change. Customer must provide Service Provider with at least thirty (30) day notice prior to changing DMS providers. Customer acknowledges that failure to provide such notice may result in the Software or Service Offering continuing to operate based off inaccurate DMS data through no fault of Dealer Focus’s. Further, Customer understands and agrees that failure to provide such notice may result in Dealer Focus invoicing Customer additional data integration fees arising from Dealer Focus re-establishing integration with Customer’s new DMS provider.
4.8 Non-CDK and Non-Reynolds and Reynolds DMS Integration. If Customer maintains a non-CDK or non-Reynolds and Reynolds DMS, then Dealer Focus’s integration of the Software Offering to Customer’s DMS may be via a third party DMS integration provider. By signing the Dealer Focus Quotation for Software Offerings, Customer states that Customer has the authority to make the request, and Customer authorizes Dealer Focus or its third party DMS data integration provider DealerVault, to access Customer’s system for the Software Offerings in the Quotation via modem and/or network to DealerVault’s computer system for the purpose of doing work on Customer’s behalf. Customer agrees that DealerVault will not be held liable for any system related issues not directly related to the programming request. Information on Customer’s system is proprietary to Customer and will not be viewed and/or altered without Customer’s consent. DealerVault will have access to Customer’s system within the specified parameters of this Agreement and all work requested will be Customer’s sole property and will not be removed and/or altered without Customer’s consent. DealerVault will be using the software licensed by Customer for the sole purpose of this Agreement. Customer acknowledges and agrees that by executing this Third Party Work Agreement it has read and agrees to the terms and conditions contained in the End User License Agreement, which is located at https://www.dealervault.com/terms-and-conditions. Customer further acknowledges and agrees that the terms of said End User License Agreement are fully incorporated and included in this Third-Party Work Agreement and are binding on the Parties hereto.
4.9 Data Aggregation and Anonymization. Customer acknowledges that Dealer Focus is in the business of developing and providing proprietary data products and that the Software and Service Offerings may be enhanced for Customer’s benefit, and in furtherance of the business purpose of this Agreement, by Dealer Focus’s use of Customer data in an aggregate and anonymized manner, including data that is derived from “Nonpublic Personal Information” (as defined in Title V of the Gramm-Leach-Bliley Act, and Cal. Civ. Code § 1798.140 of the California Consumer Privacy Act) (“NPI”), and which no longer constitutes NPI under the GLBA or CCPA after aggregation and deidentification. Further, Customer data and information related to Customer’s and its end consumer’s use of the Software and Service Offerings may be aggregated and anonymized for Dealer Focus’s use in enhancing the Software and Service Offerings, such as (i) compiling statistical and performance information related to the provision and operation of the Software and Service Offerings, and (ii) to identify effective end consumer engagement strategies (“Resultant Data”). Customer hereby consents to Dealer Focus’s use of Customer data and Resultant Data as described herein, solely in an aggregated and anonymized form.
5. Fees and Payment
5.1 Fees Due. Payment of all non-recurring fees set forth in the Agreement are due from Customer on a Net 30 basis from the Effective Date except only as expressly agreed to the contrary in the Agreement. In the case of recurring fees identified as recurring on a particular timed basis, such recurring fees are due from Customer on the date of each recurrence (for example, a fee identified as “monthly” or “per month” would recur once every calendar month on the monthly anniversary of the Effective Date, with comparable recurrence for calendar quarters or years). In the case of recurring fees identified as recurring and accumulating based on a count of usage (for example, fees identified as “per impression” or “per piece” or “per call”), Dealer Focus will invoice Customer once per calendar month for the accumulated fees and the applicable fees shall be due on a Net 30 basis from the date of such invoice. Dealer Focus and Customer may agree to include any timed recurring fees in such monthly invoice, in which case such timed recurring fees shall be due on a Net 30 basis from the date of such invoice as well, in lieu of being due as set forth above. Dealer Focus’s invoicing of certain fees may be provided via Customer’s OEM parts statement. Fees arising from Software and Service Offering training and travel expenses may be invoiced separately.
5.2 Payment Process. Customer shall make payment to Dealer Focus in U.S. Dollars to the address set forth on the face of the Agreement or such other address as Dealer Focus may designate in writing from time to time. All amounts paid pursuant to the Agreement are non-refundable.
5.3 Late Payments. Any fees not paid when first due shall be subject to a late payment fee of $50.00 or one percent (1%) per month from the date first due, whichever is greater. In addition to any other remedies that may be available, in the event that any fees due from Customer remain unpaid fifteen (15) or more days after the date first due, Dealer Focus may, after having provided Customer written notice and ten (10) days to cure such overdue payment, without further notice or opportunity to cure and without liability or decrease in fees due, suspend performance of, or Customer’s access to and right to use, any or all services and suspend Customer’s access to any or all Software and Service Offerings. Any Software or Service Offering so suspended shall be subject to a five hundred dollar ($500) reconnection fee, along with payment in full of all outstanding balances and late payment fees or interest, and Dealer Focus shall have no obligation to lift any such suspension until all such fees and charges have been paid in full.
5.4 Fee Increases. Customer acknowledges and agrees that Dealer Focus may pass through to Customer any increases in Dealer Focus’s third party costs incurred in the provision of any Software or Service Offerings to Customer under the Agreement. Dealer Focus may increase the recurring costs associated with any Software or Service Offerings in its discretion at any time by providing thirty (30) days written notice to Customer of such price increase. Such price increase shall be applicable upon and after the first recurrence or invoice following such notice period. Dealer Focus makes no representation that any non-recurring fee rates will be available for subsequent or renewal terms and the non-recurring fees associated with any Software or Service Offerings, whether newly obtained or in any renewal term, shall be as specified by Dealer Focus in a quotation for such new or renewal term.
5.5 Taxes. Unless otherwise noted, the fees set forth in the Agreement 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 (collectively, “Taxes”). Customer agrees to pay all Taxes on the Software or Service Offerings that are required by law to be paid except for any Taxes based on Dealer Focus’s income, property and employees.
5.6 Fees Varying By Usage or Count Delivered. Where the quotation identifies recurring fees that are based on a count of usage or amount actually delivered, Dealer Focus will invoice Customer for the actual usage or delivered count and Customer agrees to pay the applicable fees for the actual count of usage or amount delivered. In such case any total fee set forth on the quotation is an estimate based on the estimated count provided by Customer and Customer agrees that the actual count will govern.
5.7 Co-Op Disclaimer. Dealer Focus makes no representation regarding reimbursing Customer for OEM co-op funds, or for Customer’s eligibility for OEM co-op funds.
6. Data Privacy and Security
6.1 Privacy and Safeguarding of Customer’s Data. Dealer Focus will use commercially reasonable efforts to safeguard the privacy and security of all data provided or made available to Dealer Focus hereunder, including adopting and maintaining appropriate administrative, physical, and technical safeguards designed to prevent the destruction, loss, or unauthorized access or alteration of the data. Dealer Focus will share Customer’s data as permitted by law, and with authorized third parties only as necessary to perform the Software and Service Offerings and ancillary services ordered by Customer in a Quotation, or to enable third party services that Customer contracted for with its third parties. Further, Dealer Focus may share certain Customer data related to use of Software and Service Offerings with Customer’s brand OEM as applicable or as requested by Customer’s OEM. Dealer Focus’s Privacy Policy is available at www.dealerfocus.com/privacy.
6.2 Customer Privacy and Security. Customer, on its behalf and on behalf of its Authorized Users, represents, warrants and covenants to DealerFocus that in connection with accessing and using the Software and Service Offerings (i) all transmitted data from its DMS and technology ecosystem will be free from viruses or embedded code that could damage or disable the Software and Service Offerings, (ii) it will secure its point of sale devices and implement appropriate data security controls over its data environment, (iii) it will not perform or allow the unauthorized exhibit, presentation, recording, storage or capture of any Software and Service Offerings content, and (iv) as required by law, it has provided required notices to its end consumers that Customer is disclosing the end consumer’s information to Dealer Focus, and notice that Dealer Focus will disclose end consumer information to necessary third party service providers to carry out the purpose of the dealings between Customer and Dealer Focus.
6.3 Compliance. Dealer Focus will comply with all Customer instructions regarding the treatment or handling of Customer data, including instructions related to compliance with applicable laws, rules, or regulations. Dealer Focus will comply with all applicable laws, rules, and regulations relating to the privacy and security of Customer’s data as possessed or processed by Dealer Focus hereunder.
6.4 California Data Privacy. Dealer Focus, in providing Software and Service Offerings to Customer pursuant to Quotations or Order Forms (the “Dealer Focus Service Agreements”), Customer acknowledges itself as a covered business under the California Consumer Privacy Act, and Dealer Focus’s role as a Service Provider as defined therein.
6.4.1 Dealer Focus understands and agrees that to the extent the California Consumer Privacy Act applies to any Software and Service Offerings it provides to Customer pursuant to the Dealer Focus Service Agreements, that Dealer Focus is prohibited from: 1) retaining, using, or disclosing California resident end consumer Personal Information that it receives in delivering the Services to the Client under the Dealer Focus Service Agreements, for any purpose other than performing the Business Purpose of the Software and Service Offerings as outlined in the Dealer Focus Service Agreements, or as otherwise permitted by the California Consumer Privacy Act; and 2) retaining, using, or disclosing California Personal Information for a commercial purpose other than providing the Software and Service Offerings specified in the Dealer Focus Service Agreements. For the avoidance of doubt, capitalized terms used in the paragraph not defined in this Agreement are used as defined by the California Consumer Privacy Act. Dealer Focus’s Privacy Policy is available at www.dealerfocus.com/privacy.
6.4.2 “California Consumer Privacy Act” means California Civil Code 1798.100-1798.199, as amended from time to time, and also includes any regulations or other guidance issued by the California Attorney General’s office that is related to the statute. “California Personal Information” means the personal information, as defined by the California Consumer Privacy Act, of any natural person who is a California resident that Dealer Focus processes pursuant to the work that it performs under the Dealer Focus Service Agreements. California Personal Information does not include any information that is temporarily or permanently excluded from coverage under the California Consumer Privacy Act.
6.4.3 Dealer Focus certifies that it understands the California Consumer Privacy Act’s restrictions and prohibitions on selling personal information and retaining, using, or disclosing personal information outside of the Parties’ direct business relationship, and it will comply with them.
6.4.4 Customer will at all times process its end consumer data deletion requests upstream in its own DMS environment before processing such requests downstream with Dealer Focus. Customer acknowledges and understands that Dealer Focus’s services under the Agreement actively rely upon pulling Customer’s end consumer data from each enrolled rooftop’s DMS, and any Customer data deleted from Vendor’s services that remains in a Customer’s DMS will automatically be reimported to Dealer Focus’s services. Customer will be solely liable to the extent that Customer data fails to be deleted from Dealer Focus’s systems, is re-imported to Dealer Focus’s systems, or is otherwise mis-processed by Dealer Focus’s systems arising from Customer’s lack of compliance with this Section.
7. Confidentiality
7.1 Definition. “Confidential Information” means any confidential or proprietary information of a party disclosed or made accessible to the other party in the course of performance under this Agreement, including, without limitation, trade secrets, software code, algorithms, confidential know-how, confidential business information (including but not limited to; screen layouts, program flow, business logic, business plans, customer lists, vendor lists, strategic alliances, marketing strategies, and planned new products and services) and other information which a party considers to be proprietary or confidential. Confidential Information, however, does not include information which (i) is or becomes generally available to the public (other than as a result of disclosure or dissemination by the receiving party), (ii) is or becomes available to the receiving party on a non-confidential basis from a single source (other than the disclosing party) that is not bound by an obligation of confidentiality relating to the information, (iii) has been independently acquired or developed by the receiving party without violating any obligation to the disclosing party, or (iv) was rightfully in the possession of the receiving party prior to receipt from disclosing party.
7.2 Obligations as to Confidential Information. Each party receiving Confidential Information of the other party (such party, for such purposes, the “Receiving Party”) shall: (i) limit access and use of the Confidential Information of the other party (such party, for such purposes, the “Disclosing Party”) to those of Receiving Party’s employees and agents that require such access and use in connection with this Agreement and who are bound by confidentiality provisions no less restrictive than those in this Article 3; (ii) not disclose or permit the disclosure of Disclosing Party’s Confidential Information to any third party, unless first authorized in writing by the Disclosing Party; (iii) protect the confidentiality and secrecy of the Disclosing Party’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care; and (iv) not use the Disclosing Party’s Confidential Information for any purpose except as required to perform its obligations under the Agreement or as otherwise expressly permitted pursuant to the Agreement. Receiving Party shall take appropriate action with its employees, or authorized third parties, to satisfy its obligations hereunder. The obligations set forth above in this Section 3.2 shall survive termination of the Agreement and continue thereafter for a period of five (5) years, except that for Confidential Information that consists of a party’s Trade Secrets, the obligations under this Section 3.2 shall extend for as long as such Confidential Information remains a trade secret under applicable law. Nothing in this Agreement is intended or shall be interpreted to limit, modify, or supersede any right or obligation related to any trade secret under applicable law. Either party may disclose the existence and general nature of the Agreement, but may not, without the prior consent of the other party, disclose the specific terms of the Agreement.
7.3 Mandatory Disclosure. Nothing in this Article shall prevent a Receiving Party from disclosing Confidential Information in compliance with a lawful order of a court, administrative tribunal, or regulatory or law enforcement agency with applicable jurisdiction provided that the Receiving Party: (i) where legally permissible, provides prior notice to the Disclosing Party of the legal obligation to disclose; (ii) takes reasonable measures to disclose only the minimum amount of Confidential Information necessary to comply with the obligation; (iii) takes reasonable measures to limit the further use or disclose of the disclosed Confidential Information through an applicable protective order or comparable means; (iv) where legally permissible, provides the Disclosing Party the opportunity to object or otherwise intervene to prevent or limit the disclosure; and (v) where legally permissible, cooperates reasonably with Disclosing Party as requested by Disclosing Party in obtaining relief to prevent or minimize the disclosure.
7.4 Return of Confidential Information. Upon termination of the Agreement, and at any time upon written request of the Disclosing Party, each Receiving Party agrees promptly to return to the Disclosing Party any Confidential Information of the other party together with all full or partial copies thereof and any transcripts, notes, or other materials made therefrom or embodying any of the other party’s Confidential Information; or, at the Disclosing Party’s election, to destroy such items and deliver to the Disclosing Party written certification that such materials have been destroyed.
8. Intellectual Property
8.1 Ownership. Except as expressly set forth in the Agreement, Customer acknowledges and agrees that as between Customer and Dealer Focus, Dealer Focus is the sole owner of all right, title, and interest in and to: (i) all Software or Service Offerings provided or made available to Customer pursuant to the Agreement, whether licensed to Customer or provided as a service, together with all additions, modifications, developments, or enhancements of any of the same; (ii) all Software or Service Offerings provided or made available to Customer pursuant to the Agreement, together with all additions, modifications, developments, or enhancements of any of the same; (iii) all technology, software, products, program code, designs, methods, ideas, concepts, know-how, techniques, modules, components, generic documents or templates, tools, or other information developed, improved, modified, or used by Dealer Focus in performing its obligations pursuant to the Agreement; (iv) all brands, trade names, trademarks, and service marks used by Dealer Focus in connection with its Software or Service Offerings except as set forth in the Third-Party IP Section of this Agreement; and (v) all data or content provided or used in connection with any Software or Service Offering pursuant to the Agreement except as set forth in the Customer Data Section of this Agreement. Dealer Focus reserves all rights in all of the foregoing not expressly granted to Customer pursuant to the Agreement, and Customer agrees not to claim or assert any interest therein. Any use of any of the foregoing without the express authorization of Dealer Focus is strictly prohibited. Customer may have feedback, suggestions, or comments that Dealer Focus or its related third parties may elect to incorporate, in whole or in part, into its software, products, services and related intellectual property. Dealer Focus and its related third parties shall own exclusively and in perpetuity all worldwide right, title and interest in and to any enhancements suggested by Customer. Customer hereby assigns all of their right, title and interest in any such enhancements suggested to Dealer Focus or its third parties. Customer will execute such documents as may be deemed reasonably necessary to accomplish the objectives of this paragraph.
8.2 No Work Made For Hire. Customer acknowledges and agrees that no work, development, or deliverable pursuant to the Agreement is a work made for hire and that Customer will not have or obtain any ownership of any deliverable from Dealer Focus under the Agreement.
8.3 Third-Party IP. To the extent Customer requires Dealer Focus to use any trademark, copyrighted material, or other intellectual property of any third party in connection with the provision of services to or for Customer, Customer hereby grants to Dealer Focus a non-exclusive, license, for the term of the Agreement, to copy, perform, distribute, create derivative works from, and use such third party intellectual property in connection with Dealer Focus’s performance of its obligations pursuant to the Agreement. Customer represents and warrants that Customer has the written consent from the owner of such third party intellectual property, or a proper license or ownership right sufficient to allow the applicable use and to allow Customer to authorize Dealer Focus to make such use of such third party intellectual property as set forth above. Customer further represents and warrants to Dealer Focus that the use of the intellectual property of any third party as contemplated by the Agreement does not and will not infringe the intellectual property rights of any third party.
8.4 Customer Data. Dealer Focus acknowledges and agrees that as between Customer and Dealer Focus, Customer is the sole owner of all right, title, and interest in and to all data or content provided or made available to Dealer Focus by or on behalf of Customer in connection with this Agreement. Customer reserves all rights in such content and data not expressly granted hereunder. Customer hereby authorizes Dealer Focus to copy, distribute, display, store, process, create derivative works from, and use all such content or data in connection with Dealer Focus’s performance of its obligations pursuant to the Agreement, including internal purposes of Dealer Focus such as operating, maintaining, and improving Dealer Focus’s Software and Service Offerings. Customer also grants Dealer Focus an irrevocable, worldwide, non-exclusive, royalty-free and perpetual license to use, reproduce, distribute, display, process and store aggregated, de-identified data based on Customer’s data. Customer represents and warrants that Customer has all necessary rights and authorizations to provide the content and data to Dealer Focus and to authorize Dealer Focus to copy, distribute, and use such content and data as authorized hereunder. Customer expressly assumes the risk of any violation of law or rights, or any error or omission related to the provision of any data to Dealer Focus or Dealer Focus’s copying, storing, distribution, display, modification, or use of any data as contemplated under the Agreement.
8.5 Restrictions. Customer shall not itself, or permit any third party to, use the process which is used with any services or any variation thereof for any reason whatsoever other than as expressly authorized and contemplated by the Agreement. Customer shall not itself, or permit any third party to, use Customer’s access to Dealer Focus’s Software or Service Offerings hereunder, to develop or offer similar products or services that would be competitive with the Software and Service Offerings offered by Dealer Focus.
9. Indemnification
9.1 Customer Indemnification. Customer shall defend each Customer Covered Claim (as defined herein) and shall indemnify and hold harmless Dealer Focus and its employees, agents, shareholders, officers, directors, successors and permitted assigns (for purposes of this Section, each and collectively the “Indemnified Party”) from and against all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, without limitation, attorneys’ fees and the cost of enforcing any right to indemnification hereunder, arising out of or resulting from any demands, claims, investigations, lawsuits, or other proceedings of any kind made or brought against the Indemnified Party by a third party arising out of or relating to (each a “Customer Covered Claim”): (i) a breach or non-fulfillment of any obligation, representation, warranty of Customer; (ii) a violation of law by Customer; or (iii) the unauthorized copying, disclosure, storing, processing, display or use of any personal information of any individual when such information was provided or made available to Dealer Focus under the Agreement and the applicable copying, disclosure, storing, processing, display, or use was contemplated under the Agreement.
9.2 Dealer Focus Indemnification. Dealer Focus shall defend each Dealer Focus Covered Claim (as defined herein) and shall indemnify and hold harmless Customer and its employees, agents, shareholders, officers, directors, successors and permitted assigns (for purposes of this Section, each and collectively the “Indemnified Party”) from and against all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, without limitation, attorneys’ fees and the cost of enforcing any right to indemnification hereunder, arising out of or resulting from any demands, claims, investigations, lawsuits, or other proceedings of any kind made or brought against the Indemnified Party by a third party arising out of or relating to (each an “Dealer Focus Covered Claim”): (i) an allegation that any Software or Service Offering provided to Customer by Dealer Focus under the Agreement infringes upon a United States copyright, United States patent, or applicable trade secret right of such third party; or (ii) any violation of law by Dealer Focus except to the extent such alleged violation is conduct giving rise to a Customer Covered Claim as set forth in this Agreement.
9.3 Procedure. With respect to all Customer Covered Claims and Dealer Focus Covered Claims (hereafter collectively each such a “Covered Claim”) the Indemnified Party shall promptly notify the Indemnifying Party of any Covered Claim and tender to the Indemnifying Party sole control of the defense and settlement of the Covered Claim at the Indemnifying Party’s expense, provided that the Indemnifying party shall not settle any Covered Claim in a manner that adversely effects the Indemnified Party’s rights without the Indemnified Party’s prior written consent, which will not unreasonably be withheld or delayed. The Indemnified Party shall provide, at the reasonable request of the Indemnifying Party, and at the Indemnifying Party’s expense, cooperation and assistance in the defense of any Covered Claim. The Indemnified Party may, in any event, participate in and observe the proceedings of any Covered Claim at its own cost and expense with counsel of its own choosing. If the Indemnifying Party fails to accept the tender of defense of a Covered Claim in writing within ten (10) days after receiving notice of the Covered Claim from the Indemnified Party, then the Indemnified Party shall have the right to assume the exclusive defense of the Covered Claim at Indemnifying Party’s expense. Any failure or delay by the Indemnified Party in performance of its obligations under this Section 6.3 shall only relieve the Indemnifying Party of its indemnification obligation hereunder to the extent such failure or delay materially prejudices the Indemnifying Party’s ability to defend or settle such Covered Claim.
10. LIMITATIONS AND DISCLAIMERS
10.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THE AGREEMENT, DEALER FOCUS, AND EACH THIRD-PARTY SOFTWARE PROVIDER, DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY SOFTWARE OR SERVICE OFFERING. DEALER FOCUS DOES NOT WARRANT THAT ANY SOFTWARE OR SERVICE OFFERING WILL OPERATE OR BE AVAILABLE WITHOUT INTERRUPTION OR BE ERROR FREE. DEALER FOCUS EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY CONSEQUENCES ATTRIBUTABLE TO OR RELATED TO ANY USE OR NON-USE OF ANY SOFTWARE OR SERVICE OFFERING. CUSTOMER IS SOLELY RESPONSIBLE FOR THE CONTENT AND DATA PROVIDED TO DEALER FOCUS IN CONNECTION WITH THE AGREEMENT AND FOR ANY COPYING, DISTRIBUTION, DISPLAY, MODIFICATION, PROCESSING AND USE OF SUCH CONTENT OR DATA AS CONTEMPLATED IN THE AGREEMENT. DEALER FOCUS IS NOT RESPONSIBLE FOR THE RESULTS OBTAINED THROUGH THE USE OF ANY SOFTWARE OR SERVICE OFFERING AND DOES NOT REPRESENT, WARRANT, OR GUARANTEE ANY PARTICULAR RESULTS. DEALER FOCUS DOES NOT GUARANTEE THE SECURITY OF ANY DATA TRANSMITTED OVER THE INTERNET AND CUSTOMER UNDERSTANDS AND AGREES THAT THE PROVISION OF SOFTWARE OR SERVICE OFFERING VIA THE INTERNET, AND CUSTOMER’S ACCESS OF ANY SOFTWARE OR SERVICE OFFERING VIA THE INTERNET, IS INHERENTLY UNSECURE AND DONE AT CUSTOMER’S SOLE RISK. DEALER FOCUS DOES NOT WARRANT OR GUARANTEE INFORMATION SECURITY IN RELATION TO ANY SOFTWARE OR SERVICE OFFERING.
10.2 Third Party Warranties. Customer acknowledges and agrees that the Software and Service Offerings provided by Dealer Focus under the Agreement may contain or require third party software or services, which shall be provided to Customer through or as part of Dealer Focus’s Software or Service Offerings. DEALER FOCUS MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND WITH REGARD TO SUCH THIRD-PARTY SOFTWARE OR SERVICES. Dealer Focus agrees to pass through or assign to Customer any warranties provided by third parties with regard to such third-party software or services to the extent so assignable.
10.3 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL DEALER FOCUS OR ANY THIRD PARTY SOFTWARE PROVIDER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, COLLATERAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER PECUNIARY LOSS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LOST PROFITS, LOST BUSINESS, LOST GOODWILL, OR LOST DATA, ARISING OUT OF THE USE, OR INABILITY TO USE, ANY SOFTWARE OR SERVICE OFFERING HEREUNDER, OR OTHERWISE RELATED IN ANY WAY TO THE AGREEMENT OR A SUBJECT THEREOF, WHETHER ARISING UNDER THEORIES OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER THEORY, AND REGARDLESS WHETHER DEALER FOCUS OR THE THIRD PARTY SOFTWARE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DEALER FOCUS’S AGGREGATE LIABILITY UNDER ANY PROVISION OF THE AGREEMENT OR OTHERWISE EXCEED THE LESSER OF THE TOTAL AMOUNT ACTUALLY RECEIVED BY DEALER FOCUS FROM CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO LIABILITY, OR $50,000. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS ARTICLE 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.4 Assumption of Risk. Customer acknowledges that use of the Software and Service Offerings represents an assumption of risk and that Dealer Focus, its licensors, affiliates and suppliers do not underwrite or assume Customer’s risk in any manner by providing access to and supporting Customer’s use of the Software and Service Offerings. Customer’s content, correspondence and business dealings with its end consumers through use of the Software and Service Offerings, regardless of whether the content is present within the Software and Service Offerings or accessed via the Software and Service Offerings through third party data providers, are solely between Customer and its end consumers. Customer’s content, correspondence and business dealings with its end consumers includes, without limitation, Customer’s marketing, offers, disclaimers, incentives, finance and tax terms such as: lease transaction calculations, lease rates, lease residual values, lease parameters, lease policies, lease factors, lease paid reserve calculations, finance transaction calculations, finance rates, finance fees, finance paid reserve calculations, finance parameters, finance policies, finance factors, manufacturer incentives, manufacturer rebates, lender incentives, lender rebates, federal taxation calculations, state taxation calculations, county taxation calculations, taxation policies, DMV calculations and DMV fees.
10.5 Legal Compliance. IN NO WAY DOES ANY CONTENT PROVIDED BY SERVICE PROVIDER, ITS LICENSORS, AFFILIATES OR SUPPLIERS, (SUCH CONTENT INCLUDING, WITHOUT LIMITATION, ADVERTISING, MARKETING MATERIALS, OR DISCLAIMERS) CONSTITUTE LEGAL ADVICE. NEITHER SERVICE PROVIDER NOR ITS LICENSORS, AFFILIATES OR SUPPLIERS ARE ENGAGED IN THE PRACTICE OF LAW OR IN PROVIDING LEGAL OR COMPLIANCE SERVICES.
11. Term and Termination
11.1 Term. The term of the Agreement shall begin as of the execution of the Quotation or Order Form document by Customer (the “Effective Date”) and shall continue for the period set forth therein or herein for each applicable Software and Service Offering. The term applicable to each Software or Service Offering may be different and shall only remain in force for the term applicable to that specific Software or Service Offering as set forth in this Agreement. The term of the Agreement as a whole shall continue until the end of the last term to end of any term applicable to a particular Software or Service Offering.
11.2 Initial Term. The initial term of the Agreement for each respective Software or Service Offering shall be as set forth within this Agreement, unless specifically provided otherwise on the Quotation or Order Form document for such Software or Service Offering. For the avoidance of doubt, in the event no term is identified on the Quotation or Order Form document with regard to a particular Software or Service Offering, the initial term of the Agreement with respect to such Software or Service Offering shall be as specified in this Agreement, beginning on the Effective Date.
11.3 Renewal Terms. Except as otherwise provided herein, the term of the Agreement with regard to each Software or Service Offering to which the terms and conditions of this Agreement are applicable shall automatically renew at the end of the then-current term for a renewal term equal in length to the initial term, at Dealer Focus’s then-current standard rates for such offering, unless Customer provides written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term. Collectively, the initial term and all renewal terms shall be the “Term” of the Agreement with respect to the applicable Software or Service Offering.
11.4 Termination for Cause. Dealer Focus may terminate this Agreement immediately by providing notice of termination to Customer, upon the occurrence of any of the following:
11.4.1 Any breach of this Agreement by Customer, which breach continues thirty (30) days after notice thereof to Customer from Dealer Focus;
11.4.2 Any breach of the terms and conditions of this Agreement or the terms of use within the Software or Service Offerings with respect to Customer’s confidentiality obligations or privacy responsibilities as outlined herein and therein;
11.4.3 Any violation of law or Dealer Focus’s intellectual property rights by Customer;
11.4.4 Customer sells or transfers its assets related to its operations in connection with this Agreement, or merges with a third party, without the prior written consent of Dealer Focus to the assignment of this Agreement and agreement from Customer’s successor in such transaction to assume all of Customer’s obligations and liabilities hereunder; or
11.4.5 Customer is adjudicated as bankrupt, or a petition in bankruptcy, reorganization or similar proceeding is filed against Customer and such petition is not discharged within sixty (60) days of such filing, or Customer is dissolved or liquidated.
11.5 Termination for Convenience. Dealer Focus may terminate this Agreement for its convenience upon thirty (30) day notice to Customer.
11.6 Effect of Termination. The termination of this Agreement for any reason shall not terminate any liability or obligation of Customer hereunder which accrues prior to such termination, including, without limitation, Customer’s obligation to pay any amounts that are or become due to Dealer Focus up to the date of termination. Upon termination, Customer’s right to receive or use any and all Software and Service Offerings of Dealer Focus shall immediately cease and all licenses to any Software or Service Offerings granted in the Agreement are immediately revoked. In the event of Dealer Focus’s termination for convenience pursuant to this Agreement, Dealer Focus shall refund to Customer the unused balance of any fees paid in advance for a period or quantity of service or use of any Software or Service Offering applicable to any period after the date of termination. In the event of Dealer Focus’s termination for cause of this Agreement, all unpaid balances and all recurring charges for the remainder of the then-current term at the time of termination shall immediately become due and payable. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief.
12. Automatic Telephone Dialing System. Customer acknowledges and understands that the Marketing Service Offering is a prerecorded customer notification program consisting of triggered variable content electronic and print vehicle service related communications to vehicle owners, based on Customer DMS related consumer transactions and owner-specific vehicle service history information, and requires the use of an Automatic Telephone Dialing System, as that term is defined under the TCPA.
12.1 Compliance. DealerFocus agrees to comply with all Customer instructions regarding compliance with applicable laws, rules, or regulations. Dealer Focus will use commercially reasonable efforts to avoid applicable communications with a consumer on Customer’s behalf after receipt of notice from Customer that such consumer has opted out of receiving such communications, or has requested to be added to a “Do Not Call” “Do Not Mail” or “Do Not Email” list as applicable. Dealer Focus shall maintain “Do Not Call” “Do Not Mail” or “Do Not Email” lists specific to Customer and shall use commercially reasonable efforts to check against such lists prior to initiating any communication. Dealer Focus agrees that it shall never override the FTC’s, any states’ or Customer’s specific Do Not call list in performing the services. Without limiting any of the foregoing, Dealer Focus will use commercially reasonable efforts to comply in all respects with all applicable state of federal laws, rules, and regulations including, without limitation CAN-SPAM and Do Not Call.
12.2 When Customer has elected to receive any direct mail Service Offerings as identified on a Quotation, the following additional terms apply:
12.21 Customer on its behalf and on behalf of each of its users, represents, warrants and covenants to Dealer Focus that in connection with direct mail Service Offerings under this Agreement: (i) it will review all mail products produced pursuant to this Agreement, and approve final proof’s prior to mailings; (ii) all review and approval of mail products, is done so by an individual whose signature of approval is set forth with full power and authority and has been duly authorized by all necessary corporate action on the part of Customer; (iii) its mail products will at all times comply with all applicable federal, state, and local laws, rules and regulations, including without limitation, those laws governing terms related to warranties, credit, payment, financing, taxes, promotions, contests and sweepstakes; and (iv) its mail products will not infringe on third party trademarks or copyrights.
12.2.2 In the event Customer terminates direct mail services prior to the printing of a piece, Customer shall still owe the greater of $500 or fifty percent (50%) of the cost of the direct mail.
12.2.3 Dealer Focus will not be liable for any damages or loss of business if a mailing is delayed or cancelled due to non-payment by Customer.
12.2.4 In the event of printer error, where the piece mailed does not correspond to the proof approved, Dealer Focus will only be liable for reprinting and mailing the piece as was approved.
12.2.5 Customer is solely responsible for the contents of a proof once approved by Customer. In no event will Dealer Focus be liable for errors, grammatical, spelling or otherwise, if final proof containing the errors was approved by Customer.
12.2.6 Prices are subject to change without notice due to postage increases and Customer shall be responsible to pay any such increases when invoiced pursuant to the Agreement.
12.3 When Customer has elected to receive telephonic or text message contact services or other telephony Service Offerings, the following additional terms apply:
12.3.1 Customer hereby authorizes Dealer Focus to annually (or more frequently as required by applicable law) register Customer with the FTC Do Not Call Registry and the do not call registry of each applicable state (collectively, “DNC Registration”) so that Customer is authorized to obtain the FTC and each such state’s DNC lists, and Customer agrees to reimburse Dealer Focus for all charges imposed by said governmental agencies for said registrations.
12.3.2 Customer acknowledges that telephone solicitation is regulated pursuant to federal and state law, and any modifications made by Customer to the Policy which are less restrictive than applicable law may be in violation of such law. Customer agrees to comply with all applicable federal and state laws when using the services, including laws that apply in the state where Customer calls using the services are made, as well as laws that apply in states where Customer calls using the services are received. Customer agrees to take reasonable steps to stay informed as to applicable state and federal laws as it applies to Customer’s use of the services.
12.3.3 Customer hereby agrees and acknowledges that Dealer Focus, or a third party designated by Dealer Focus, may record, review and evaluate digitized telephone calls arising from the services for internal quality assurance or at Customer’s request, and may utilize and publish call traffic statistics without identifying Customer.
12.3.4 Customer acknowledges and understands that there are strict legal limitations on the sending of pre-recorded or text messages to wireless phone and other wireless devices. Customer certifies that no calls or text messages will be made to a wireless phone or other wireless device in respect of the services, unless Customer has first received advance written consent from each proposed consumer recipient, which consent complies with applicable law, and which includes transmitting notifications of safety recalls where end consumers are then charged for recall repairs or solicited for paid services.
12.7 Security. Customer shall keep any and all credentials or other means of access to any Dealer Focus Software and Service Offerings confidential. Customer shall be solely responsible for the security of such credentials or means of access and is solely responsible for all information submitted through the services via its assigned credentials.
12.8 Responsibility. Customer further agrees that all marketing and other campaigns designed for use with the services shall be designed solely by Customer, subject to technical support and a help line that may be available from time to time through Dealer Focus. Dealer Focus may provide templates, model scripts, and other design assistance for Customer’s consideration, but Dealer Focus makes no representation regarding the propriety of such templates, model scripts or input for any particular situation. Customer remains solely responsible for its selections and choices regarding campaign design, including the script to be used for any calls. Where applicable, Dealer Focus will provide each proof to Customer for approval. Customer shall notify Dealer Focus of its approval of the proof or of any requested changes as soon as reasonably practicable. Dealer Focus will take no action on any proof until and unless approved by Customer and Dealer Focus shall have no responsibility or liability regarding delayed performance or failures of performance to the extent resulting from Customer’s failure to approve a proof in a timely manner.
12.9 Communication Policies. Customer agrees to abide by all applicable Dealer Focus policies (as such policies may be adopted or amended by Dealer Focus from time to time and provided by Dealer Focus to Customer via Dealer Focus’s website and, upon request, by email) regarding the use of the services to make telephone solicitations or to transmit any electronic mail (e-mail) or text message to consumers (collectively, each a “Message”). Customer shall remain in compliance with the Policies at all times in connection with Customer’s use of all services hereunder. Dealer Focus’s policies in this regard include but are not limited to the following:
12.9.1 Customer shall not use the services to transmit any Message that (i) is obscene, or defamatory or violates any intellectual property rights or any other rights of any third party, (ii) facilitates or promotes violent, discriminatory or illegal activity, (iii) contains any sexually explicit content or images or other image that may be harmful to minors (iv) promotes any pyramid scheme, (v) is false, misleading, or likely to mislead or deceive (including, without limitation, information relating to the source or the author of the message), (vi) contains viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature, or (vii) violates any state, federal or other laws, including without limitation, the CAN-SPAM Act or any other applicable anti-spam law or law prohibiting the sending of unsolicited text messages.
12.9.2 Customer will not utilize the services to transmit any Message in text form to a wireless phone or wireless device to any consumer unless Customer has obtained such consumer’s express prior written consent to receive such Messages. Customer must also provide all Message recipients with the ability to opt-out of receiving future Messages from Customer as follows:
12.9.2.1 by sending a Message to Customer with “stop” (regarding Text Dealer Focus) or “unsubscribe” (regarding Email Dealer Focus), in the text; and
12.9.2.2 via the same mechanism as the recipient consents (or opts-in) to receiving Messages from Customer. Customer must include a prominent description of the opt-out mechanism at the same location and time as Customer provides the recipient an opportunity to consent/opt-in. Customer will not send any Messages to any consumers who have chosen to opt-out of receiving Messages from Customer.
13. Ringless Voicemail Drops Service Offering. The following additional terms are applicable to the Ringless Voicemail Drop Service Offering (“Voice Valet”, “Ringless Voicemail Drops” or “RVM”):
13.1 RVM may in some circumstances make a partial ring or line “tap” or “ping” on a recipient’s phone. RVM’s may be subject to regulatory content restrictions and state and/or federal laws. It is Customer’s responsibility to seek independent legal advice with respect to Customer’s specific use of RVM and to comply with applicable local, state and federal laws and regulations, which may include, by way of example only, a) having prior express written consent to contact all recipients; b) scrubbing all contact lists against national and state do-not-call lists and Customer’s internal do-not-call lists; and c) ensuring that all RVM message content is compliant with applicable laws, including but not limited to clearly providing the true identity of the originator of the message at the beginning of all messages, including return telephone number and address, and providing opt-out options in messages. If Customer has any questions regarding compliance, Customer will obtain independent legal advice before initiating any RVM campaign.
13.2 The RVM Service Offering is provided based on the initial term agreed upon in the Quotation, with a minimum initial term of ninety (90) days notwithstanding an initial term to the contrary in the Quotation, and will automatically renew for successive ninety (90) day terms, unless either party gives the other party ninety (90) days written notice prior to the end of the then-current term. If Customer terminates the RVM Service Offering early, prior to Term expiration, then Customer will pay the remainder of contracted Term, without regard to use of the RVM Service Offering or lack thereof.
13.3 Customer represents and warrants to Dealer Focus that for the end consumer lists Customer selects to receive RVMs, that Customer has received each end consumer’s “prior express consent,” or “prior express written consent” to receive RVMs, as applicable. The terms “prior express consent,” and “prior express written consent” shall have the meaning prescribed by the TCPA, the FCC’s TCPA rules, 47 C.F.R. § 64.1200 et seq., and the FCC’s TCPA decisions.
14. General Terms
14.1 Relationship of the Parties. The Parties are and shall remain independent contractors to one another. Nothing herein, and no act taken in accordance with the Agreement, shall be deemed to establish a partnership, joint venture or agency relationship between the Parties, and neither party shall have the right to obligate or bind the other party in any manner to any third party.
14.2 Survival. All provisions of this Agreement which by their nature are intended to survive the termination of the Agreement (including, without limitation, the provisions of Confidentiality, Indemnification, Limitations and Disclaimers, and General Terms of this Agreement) shall survive such termination.
14.3 Notices. All other notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the Quotation to this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
14.4 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
14.5 Entire Agreement. This Agreement, together with Dealer Focus’s End User License Agreement (“Dealer Focus EULA”), and any end user license agreement required by Dealer Focus’s third party licenses (“Third Party EULA”) for applicable Software and Service Offerings, which Customer will be required to review and accept upon accessing the Software and Service Offerings, and any other applicable Quotation, Sales Order or document related to Software and Service Offerings incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Dealer Focus reserves the right to change, or add new provisions to the Dealer Focus EULA at any time to address new requirements under applicable laws, regulations, or contractual commitments of Dealer Focus, changes in business requirements or otherwise as Dealer Focus deems necessary, in its sole discretion, to protect the Software and Service Offerings, Customer’s end consumer information, or Dealer Focus’s business interests. If Dealer Focus makes any changes to its Dealer Focus EULA, Dealer Focus will provide Customer with notice of such changes by presenting the changed Dealer Focus EULA for Customer’s review and acceptance upon accessing the Software and Service Offerings. Customer’s acceptance of any Dealer Focus EULA at any time after the Effective Date of this Agreement shall constitute acceptance of such new or changed terms. Except as provided in this Section with respect to the Dealer Focus EULA, the Agreement may only be modified with a written amendment expressly referring to the Agreement and executed by each party. Any additional or contrary terms and conditions contained on or in a Quotation or purchase order shall have no effect and are hereby expressly rejected.
14.6 Assignment. Customer may not assign the Agreement or any of Customer’s interests, rights or obligations thereunder, either by written agreement, merger, consolidation, operation of law, or otherwise, without the prior written consent of Dealer Focus which may be exercised in the sole discretion of Dealer Focus. Any purported assignment in violation of the foregoing shall be null and void ab initio. Dealer Focus may assign this Agreement for any reason, in its sole discretion, including statutory assignments such as merger, and Dealer Focus’s rights and/or obligations hereunder, including without limitation assignment of amounts due by Customer to a financial institution, factor or leasing company of Dealer Focus’s choice. Subject to the foregoing, the Agreement shall inure to the benefit of and be binding upon each of the Parties and their respective permitted successors and assigns.
14.7 Force Majeure. Delays or failure of Dealer Focus in the performance of any obligations under the Agreement, including but not limited to operation or performance of any Software or Service Offerings, shall be excused where such a delay or failure is caused by events beyond the reasonable control of Dealer Focus, including, but not limited to, acts of God; explosion, flood, fire, or hurricane; any form of civil unrest; labor strike; government action, order or law; national or regional emergency; non-availability of adequate power; loss and destruction of property; server failures; software glitches; failure of internet service providers; and failure of telecommunications providers.
14.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
14.9 No Waiver. No term or provision of the Agreement shall be deemed waived and no breach excused, unless such waiver or excuse is in writing signed by the party granting such waiver or excusing such breach. No consent to, or waiver of, a breach, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach by such party.
14.10 Severability. In the event any provision of the Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected thereby and shall continue to be valid and enforceable and if, for any reason, any applicable authority finds that any provision of this Agreement is invalid, illegal or unenforceable as written, but by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. If it is determined that any Software or Service Offering cannot be used for one or more applications by Customer as a result of restrictions set forth in applicable law, Customer agrees to comply with all such restrictions, and such restrictions shall not otherwise impact the terms of the Agreement.
14.11 Governing Law, Jurisdiction and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of New York and the United States, but without regard to conflicts of law principles thereof. Jurisdiction and venue for any dispute between the Parties arising under or related to the Agreement shall be exclusively in the United States District Court for the State of NY, or other courts located in Westchester County NY, as applicable, and the judgment of said courts on any matter may be entered in any court having jurisdiction over a party to the Agreement. Each party hereby expressly and irrevocably waives any right that it may have to contest the jurisdiction of such courts or the appropriateness of such venue..
14.12 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under this Agreement, including without limitation, (i) its confidentiality obligations, (ii) obligation to comply with use restrictions on Customer’s use of the Software and Service Offerings, or (iii) Customer’s obligation to maintain the security of its own information technology infrastructure and all access to and use of the Software and Service Offerings, would cause Dealer Focus irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Dealer Focus will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.13 Prior Agreements Superseded. If Customer is subscribing to Software or Service Offerings hereunder for which Customer has any form of prior agreement with Dealer Focus or a company now owned by Dealer Focus for an individual or combination of Software and/or Service Offerings, then the terms applicable to such Software and Service Offerings contained in this Agreement, as applicable, will supersede the terms applicable to such Software and Service Offerings contained in any prior agreement between Customer and Dealer Focus or between Customer and a company acquired by and now owned by Dealer Focus, as of the Effective Date of this Agreement.
14.14 Order of Precedence. In the event of any inconsistency or conflict between the provisions in the general terms and conditions of this Agreement and the provisions of any Quotation or any sales form providing Dealer Focus’s Software and Service Offerings to Customer, (other than an exception expressly set forth as such in a Quotation), the provisions in the terms and conditions of this Agreement will prevail. In the event of any inconsistency or conflict between the statements in the body of this Agreement and the statements in Dealer Focus’s click-through End User License Agreement, the statements in Dealer Focus’s End User License Agreement shall control the business relationship between Dealer Focus and Customer.