DEALERSOCKET MASTER SERVICES AGREEMENT
Last updated: March 2022
This Master Services Agreement (“Terms”) establish the general terms and conditions between DealerSocket LLC on behalf of itself and any affiliate(s) listed on an Order (collectively, “DealerSocket”) and Customer that are applicable to DealerSocket’s provision of its, and its affiliates and subsidiaries’, products and services (collectively, the “Product” or “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”. Each party acknowledges and understands that these Terms may be updated from time to time without notice to Customer and Customer’s continued use of Products shall represent Customer’s consent to amended, canceled, or modified Terms.
1. TERMINATION OR CANCELLATION
1.1 Dependent Products. A Product marked as “Coterminous” has the same term length as the program or application upon which such Product is dependent. Upon termination or cancellation of a Product under this Agreement, all Coterminous software programs and applications dependent upon such Product will also terminate.
1.2 Cancellation of an Order. Either party may cancel an Order by providing notice to the other party, subject to any applicable conditions specified in the Order. Notice of cancellation must be in accordance with Section 10.12 of these Terms. Any Orders that are not cancelled, or terminated under this provision, will continue in full force and effect under the terms of the Agreement.
1.3 Suspension. DealerSocket may immediately suspend Customer’s account or cease to provide the Products without notice if:
a. There is material risk to the security or performance of any Products or any aspect of DealerSocket’s software programs and applications;
b. Customer’s 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.
Suspension under this provision will not relieve Customer of its obligations to pay any amounts due.
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 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, or comparable proceeding.
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 2.1 will immediately cease. Upon termination or cancellation of an Order by either party, the licenses granted under Section 2.1 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. This payment constitutes
liquidated damages reflecting a reasonable measure of actual damages and is not a penalty. Upon request of Customer, DealerSocket will return, delete or destroy all Personal Data (defined in Section 3.4).
2. PRODUCTS AND SERVICES
2.1 Grant of License. Subject to Customer’s compliance with the Agreement, including timely payment of all fees owed, 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.
2.2 License from Customer. Customer agrees that DealerSocket is an “authorized integrator” (or words of similar import) under applicable law. Customer grants DealerSocket a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, and display Customer Data to the extent necessary to perform its obligations, including, but not limited to, developing, modifying, improving, supporting, customizing, and operating the Products. DealerSocket may use, copy, transmit, index, model, and aggregate (including with other customers’ data) Customer Data for the purpose of (1) developing, improving, or customizing the Products, and (2) publishing, displaying, and distributing anonymous information (i.e., information where Customer or its customers are not capable of being identified) derived from Customer Data.
2.3 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.
2.4 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. For the dealership management system (“DMS”) Product, DealerSocket will install the Product according to a mutually agreed upon schedule, but in no event later than four (4) months from the execution date of the Order Form or otherwise as agreed upon by the parties in writing.
2.5 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.
2.6 Products. Products may be subject to usage rates, overage charges, or additional limitations or restrictions listed on an Order Form or as described on www.dealersocket.com/licensing. The foregoing does not apply to all DealerSocket Products. 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.
2.7 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.
2.8 Security. DealerSocket will implement reasonable and appropriate measures designed to secure Customer Data (as defined in Section 5.1 below) against unauthorized third-party access. Customer will maintain procedures for the secure 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.
2.9 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 allow for the use of data.
2.10.1 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.
2.10.2 In connection with DMS Products, Customer will automatically be subscribed to a Software Maintenance Program. Enrollment in the Software Maintenance Program entitles the Customer to telephone support and all new releases of the on-site Service modules provided Customer is then current on payment and enrolled in the Software Maintenance Program. Enrollment does not include on-site visits to a Customer’s location.
2.11 Training. Solely as a convenience to Customer, DealerSocket may make certain training available to Customer upon installation or implementation of Products. The type, amount, and period of availability of training offerings varies by Product and are subject to change without notice. Customer acknowledges that it bears responsibility for arranging any and all training for any User, including any additional training for new Users added to Customer’s account after installation or implementation of the Products. Customer acknowledges that certain training may be subject to additional fees. Subject to Section 9.1 of these Terms, the terms and conditions of any training to be provided to Customer by DealerSocket will be set forth in the applicable Order.
2.12 Hosting. With the exception of on-site deployment of DMS Product, the Products will be hosted on a server that is maintained by DealerSocket or its designated third-party supplier or data center.
2.13 Subcontracting. DealerSocket may engage one or more subcontractors to perform some of its obligations under this Agreement; provided, however, that any such subcontractor will be under confidentiality and information security obligations at least as protective as those in this Agreement.
2.14 Customer’s Use of YouTube Services. If Customer Uses any content from YouTube, Customer agrees to be bound by YouTube’s Terms of Service located at https://www.youtube.com/t/terms.
2.15 Product-Specific Terms. If applicable to Customer’s subscription, Customer agrees to abide by these additional product-specific terms for third-party data found at www.dealersocket.com/terms-third-party-data/.
3. CUSTOMER REPRESENTATIONS AND OBLIGATIONS
3.1 Authorized Users. 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 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. DealerSocket reserves the right to update the end-user license agreement at any time without prior notice to Customer or Users. Each User will be assigned a single-user login credential (“User Credentials”). User Credentials must 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. In the event of suspicious activity, DealerSocket may, but is not required to, suspend Authorized User accounts until Customer verifies the authorized User. Customer must immediately take all necessary steps, including providing notice to DealerSocket, to effect the termination of User Credentials for any User that no longer requires access or has had User Credentials compromised.
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.
3.3 Acceptable Use 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 comply with all applicable laws and regulations, including without limitation the Federal Trade Commission Act (15 U.S.C. §45), the US CAN-SPAM Act of 2003 (15 U.S.C. 7701) and any other national, state, or local restrictions regarding the use of email, and 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, including any lawful consent or permission required for such communications . 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 fraudulent, libelous, defamatory,
3.4 Personal Data. The Parties agree that for personal information input by Customer into a DealerSocket product (“Personal Data”), DealerSocket is the service provider or processor of the data. “Personal information”, “service provider” and “processor” shall have the meanings provided under applicable privacy laws for similar concepts. DealerSocket certifies that it understands it is prohibited from the following and will comply with the restrictions:
(I) Selling Personal Data received from Customer;
(II) Retaining, using, or disclosing Personal Data for any purpose other than the business purpose specified in this agreement; and
(III) Retaining, using, or disclosing Personal Data outside of the direct business relationship between the parties.
(IV) Combining Personal Data with personal information received from or on behalf of another person or collected from its own interaction with the data subject other than to perform business purposes permitted under the applicable Privacy Laws.
DealerSocket commits to following Customer’s instructions relating to data processing as set out in this agreement and assist Customer in meeting its obligations under the applicable Privacy Laws. DealerSocket will ensure that each person processing Personal Data is informed of the confidential nature of the data. For subcontractors requiring access to Personal Data, DealerSocket shall enter into a written agreement requiring the same level of protection of Personal Data as required of DealerSocket under this agreement. DealerSocket will answer reasonable assessments by Customer to evaluate DealerSocket’s technical and organizational measures for protection of data. Instructions by Customer to DealerSocket concerning rights exercised by a data subject must be provided through a webform under the “Exercise Your Rights” link at DealerSocket.com.
3.5 Do Not Call List. Customer may elect to use the Do Not Call List feature of DealerSocket, as applicable by Product. It is the sole responsibility of Customer to purchase the list(s) 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 own compliance obligations.
3.6 DealerSocket Hosted DMS. In the event that Customer subscribes to DealerSocket Hosted DMS Product, Customer is responsible for providing an internet connection that meets the following criteria:
• Business-class cable or better provided by a high-quality provider. DSL connections are not recommended.
• At least 100mbps download and at least 15mbps upload speeds.
• Very low to no latency.
• A static public internet address for each Customer location connecting with the DealerSocket Hosted server.
3.7 Hardware. As a convenience, DealerSocket may sell third-party hardware for on-site deployment of Products. Hardware will be shipped FOB Origin. DealerSocket makes no warranties or guarantees related to any third-party hardware, and it is Customer’s sole responsibility for the maintenance and service of any such hardware. DealerSocket is not liable for any hardware malfunction or failure. Customer’s sole remedy for any hardware issues shall be directly with the manufacturer. In the event Customer provides its own hardware for on-site deployment, DealerSocket does not guarantee that such hardware can be successfully utilized in the installation. Installation of hardware components and the operating system software on the fileserver will be made by DealerSocket personnel. The Buyer will be responsible for the unpacking and placing of each item of equipment in the desired location and providing electrical service and ethernet cable to each workstation. On-site hardware is required to be compatible with a currently supported operating system. It is the customer’s responsibility to update on-site hardware in accordance with technical refresh guidelines established by the standard 4-year warranty timeframe. DealerSocket reserves the right to stop supporting on-site deployments in favor of a DealerSocket Hosted solution after appropriate (1 (one) year’s) notice. Any return of hardware to DealerSocket must be done through requesting a return authorization, and unless it was defective as received, must be in good working order, in original packaging, and will be subject to a restocking fee of thirty-five (35) percent.
3.8 Minimum PC Hardware / Software Requirements: DealerSocket’s AMPS® software requires a minimum PC hardware configuration to operate correctly. The minimum hardware specification for all PCs running the AMPS® software is as follows:
In addition, the AMPS® software will run only under the following Microsoft operating systems: Windows 10 Home/Pro 64-bit® version. Certain features of AMPS may require the current version of Microsoft Office®. Auto/Mate may, at its sole option, discontinue support for any of the Microsoft products listed here at any time after Microsoft ends support for those products. Both DealerSocket Hosted and on-site installations require uninterrupted internet connectivity. PCs are required to have monitors that support a resolution of 1280x720 or better. Certain features may require higher resolution monitors.
4. DEALERSOCKET RIGHTS, OBLIGATIONS, AND DISCLAIMERS
4.1 General Warranty Disclaimer. DEALERSOCKET MAKES AND THE CUSTOMER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE PRODUCTS AND HARDWARE (AS APPLICABLE) PROVIDED UNDER THE AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, OR OTHERWISE GOVERNED BY THIRD-PARTY WARRANTIES DEALERSOCKET DOES NOT CONTROL, THE PRODUCTS AND HARDWARE 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 provide tax or legal advice in providing the Products. DealerSocket will use reasonable efforts to ensure that the Products are current and accurate; however changing tax rates and financial regulations are Customer’s responsibility and 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. ADDITIONALLY, FOR ANY PRODUCT DEPLOYED ON-SITE, CUSTOMER IS SOLELY RESPONSIBLE FOR ANY AND ALL INFORMATION SECURITY PRACTICES RELATED TO ITS LOCAL NETWORK.
4.4 Legal Compliance. 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. DealerSocket may immediately terminate Customer’s subscription to any Third-Party Product if DealerSocket no longer has the right to provide the Third-Party Product. 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, nor is it 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.
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. With regards to any form or template provided by Customer for use with DMS, Customer represents and warrants that it has the full and complete right, permission, and/or license to use any such form or template. 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 accessible in the Products.
5.1 Confidential Information. “Confidential Information” means all non-public proprietary or confidential information of a disclosing party, 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) 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 use any data, including elements of Customer Data, as long as such data is de-identified in such a way that a person or entity cannot be identified, 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 without the use of the other party’s Confidential Information in violation of this Agreement.
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.
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.
5.4 Notwithstanding the foregoing, (i) any party may provide a copy of this Agreement to any local, state, or federal regulatory or administrative agency or authority when requested to do so under subpoena or other compulsion of applicable law by such agency or authority, and when such request is in the ordinary course of business, and pursuant to prosecution of the functions and offices of such agency or authority; (ii) any party may disclose this Agreement in any judicial proceeding to enforce the terms of this Agreement against any other party; (iii) any party may provide a copy of this Agreement in response to any civil, criminal or administrative proceeding initiated by or against such party; (iv) any party may provide a copy of this Agreement to its accountant or tax professional to seek accounting or tax advice, and to the Internal Revenue Service if necessary for tax purposes, to any auditor or reinsurer, or to any insurer (and their counsel, reinsurers, auditors or regulators); and (v) any party may disclose or discuss the Agreement with its lenders, investors, accountants, and attorneys.
6. INTELLECTUAL PROPERTY 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, anything containing a copyright or trademark mark, 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 in accordance with these Terms as necessary for Customer’s access to and use of the Products. Customer must not obscure, alter or remove any DealerSocket copyright, trademark, service mark or proprietary rights notices. 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
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 DAMAGES RESLTING FROM 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.
8.1 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. Notwithstanding the foregoing, 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’ violation of any terms of 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. Customer will be required to pay any set-up fees and one-time fees contained in any Order, as well as last month’s fees for the Products listed as set forth in that Order or otherwise set forth herein. DealerSocket will not have any obligation to commence set-up for any Products for which Customer owes and has not paid such fees in full. Unless otherwise stated in the Order, out-of-pocket, travel, and lodging expenses (“Travel Expenses”) incurred by DealerSocket in connection with on-site set-up or installation of Products will be billed to Customer at cost; any estimated Travel Expenses will be billed as outlined on an Order, with any additional expenses beyond the estimate being billed after installation. Any one-time deposit fees for are non-refundable.
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. Unless otherwise agreed on an Order, 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. Upon Customer’s written request, DealerSocket will provide documentation related
to any increase. DealerSocket may increase integration fees, postage 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.
10.1Request 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 a format to be determined by DealerSocket. 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 its payment obligations. Otherwise, DealerSocket may delete all Customer Data in its systems. 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 (10) 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, 2.3, 4.2, 4.7, 4.8, 5, 6, 7, and 8.2 will survive termination or cancellation of any Order. Any provisions of this Agreement, that by their nature or terms are applicable after termination, will survive termination or cancellation of any Order and/or the Terms.
10.4 Assignment. 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. 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. Notwithstanding the foregoing, Customer understands and agrees that these Terms may be updated from time to time without notice to Customer and that Customer shall be governed by the most current version of these Terms as available.
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.
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. DealerSocket shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of a Force Majeure Event. A Force Majeure Event shall mean any causes beyond DealerSocket’s reasonable control, including labor disputes, civil commotion, war, riots, fires, floods, earthquakes, inclement weather, governmental regulations or controls, pandemics, epidemics, local disease outbreaks, public health emergencies, quarantines, casualty, strike, the unavailability of labor or materials to the extent beyond the control of DealerSocket, embargoes, civil strife, acts of terrorism, or acts of God, in addition to any and all other events, regardless of their dissimilarity to the foregoing, deemed to render performance of the Agreement impracticable or impossible
under law, in which event DealerSocket shall be excused from its obligations for the period of the delay. Financial hardship and economic conditions are not Force Majeure Events.
10.12 Notices. With the exception of cancellation notices by Customer which must be sent by email to [email protected], any notice required or permitted under the Agreement or required by law must be in writing and must sent by first class registered mail or 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, with a copy to [email protected]. Notices will be considered to have been given two business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service. 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.