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EXHIBIT D

RESELLER SUBLICENSE AGREEMENT

Last modified May 30, 2019

 

IMPORTANT: THE FOLLOWING TERMS OF SERVICE APPLY TO YOUR USE OF THE PLATFORM AND SERVICES. PLEASE READ THEM CAREFULLY TOGETHER WITH THE ORDER AND THE PRIVACY POLICY. In addition to agreeing to these Terms of Service, before you are entitled to use the Platform, as defined below, you must enter into one or more separate orders ("Order(s)") with the Company governing payment and use parameters for the Platform. These Terms of Service together with such Order(s) are collectively referred to as the "Agreement".

DealerSocket, Inc. (together with its affiliates, "Company") is an authorized reseller of the proprietary Internet-based customer interaction management software solution, as well as any modifications, enhancements, and/or derivative works thereof, including the websites used in connection with the foregoing (the "Platform"), owned and operated by Conversica, Inc. (“Conversica”). Company also provides associated services in connection with the Platform (the "Services").

These Terms of Service apply to any user of the Platform, which includes the entity completing and submitting the Order and/or registration information ("Customer") for the Platform account as well as each Authorized User (defined in Section 1).  If Customer does not accept all terms of the Agreement and Privacy Policy, then Customer may not access or use the Conversica Platform or Services.

  1. USE OF THE PLATFORM. Company grants Customer and its Authorized Users a limited, nonexclusive, nontransferable license (without a right to sublicense) to access and use the Platform for the Subscription Term of the applicable Order solely for Customer's internal business, customer relations, and management purposes in connection with the Permitted Use in the Territory.  "Permitted Use" means Customer's use of the Platform and Services to manage leads, transactions, and other customer interactions in connection with the operation of Customer's business and to assess and enhance the performance of Customer's marketing efforts, including to send, analyze and respond to communications with Customer's sales leads.  "Authorized Users" are those individuals who are Customer employees or contractors and who Customer authorizes to use the Platform.  Customer is responsible for all use of the Platform by its Authorized Users and agrees that it will not provide or permit access to the Platform (including without limitation, the user interface and reporting) to anyone other than Authorized Users who require such access to do their job.  “Territory” is the United States (excluding U.S. territories) and Canada; provided, however, SMS texting services are not currently available in Canada.  Customer will enable the Platform to access only those systems of Customer or any third party for which Customer has all necessary right and authority.  Customer agrees and acknowledges that its use of the Platform and Services may be subject to certain volume and other limits, if and to the extent specified on the applicable Order.  If Customer exceeds those stated usage limits, Customer will be subject to price adjustments or other effects as stated herein and/or the applicable Order.  Customer shall not, and shall not allow its Authorized Users to: (i) copy, reverse engineer, modify, decompile or disassemble the Platform; (ii) attempt to probe, scan, penetrate, breach or test the vulnerability of any system or network or the Platform's security or authentication measures, whether by passive or intrusive techniques; or (iii) monitor the data or traffic on Company's or Conversica’s system or network, other than the data or traffic passing through Customer's account on the Platform.  Customer may use the Platform only for the Permitted Use, in accordance with all applicable laws, rules and regulations (including without limitation, those applicable to privacy, CAN-SPAM, etc.) (collectively, "Applicable Laws"), and in compliance with Customer's applicable privacy policy.  All right, title and interest in and to the Platform and the Services (including any updates, improvements, or modifications thereto or derivatives thereof), as well as the message templates supplied by Conversica and used by or on behalf of Customer through the Platform ("Conversica Materials") will remain Conversica’s sole and exclusive property.  Company will use commercially reasonable efforts to correct or work with Conversica to correct material defects in the Platform that Customer has been brought to Company’s attention, provided that such defects: (a) are sufficiently described in writing and reproducible by Company and/or Conversica, and (b) are not the result of any Platform use not consistent with this Agreement and/or user instructions.
  2. DATA. Customer is solely responsible for providing all lead and customer information to Company and Conversica and/or the Platform through permitted delivery methods (such as batch file delivery, through Customer's configuration of compatible software (e.g. client relationship management software, marketing automation systems etc.), or API). Customer is solely responsible for the completeness and accuracy of all information submitted to Company and Conversica, including through the Platform. Customer must ensure that (X) all content, data and information provided by Customer was/is collected, stored and used in compliance with the applicable Customer privacy policy and in compliance with all Applicable Laws; (Y) it has all necessary rights and express consents from each of the leads, customers, and other individuals whose information is submitted to the Platform sufficient to entitle Company and Conversica to contact and interact with such individuals and use the Customer Data as contemplated hereunder and to operate the Platform and provide the Services; and (Z) the Customer Data (i) does not infringe, misappropriate or violate any intellectual property or other rights of any third-party, (ii) is not defamatory, harmful to minors, obscene or pornographic, (iii) is scanned using industry standard methods to protect it against viruses or programming routines intended to damage the Platform or Services, or surreptitiously intercept or expropriate any data or information; (iv) is not false, misleading or inaccurate; or (v) does not contain any Protected Health Information (as defined by HIPAA and applicable regulations), any financial, credit card or other payment information, or any information of any person under the age of 13. Company and Conversica may take remedial action if any Customer Data violates this Section, however neither Company nor Conversica has any obligation to review any Customer Data for accuracy, compliance or potential liability.  As between Company and Conversica on the one hand, and Customer on the other, Customer will own all information and data arising from Customer's use of the Platform, including the client relationship management data, client systems data and data generated through communications in whatever form or medium between the Platform and Customer's sales leads and/or customer interactions and/or Authorized Users through the Platform and/or Services (collectively, the "Customer Data").  For purposes of clarity, Customer Data does not include Conversica Materials.  Customer grants to Company and Conversica during the Term of this Agreement and for thirty (30) days thereafter, the right and license to access and use the Customer Data (including the personally identifiable information submitted to the Platform or collected in providing the Services to Customer) as necessary to provide the Platform and the Services to Customer hereunder.  In addition, Customer grants to Conversica the worldwide perpetual, irrevocable, royalty-free right and license to collect, store, access, distribute, sublicense, modify and use aggregate or anonymized data derived from Customer Data ("Derivative Data") in connection with Conversica’s business operations, such as to improve its services, and may combine the Derivative Data with other data from customers and third parties.  As of the Effective Date of this Terms of Service, Conversica is certified under the EU-US Privacy Shield and the Swiss-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce ("EU-US Privacy Shield"). During the Term, Conversica agrees to comply with either the applicable requirements of EU-US Privacy Shield certification, or with another EU approved transfer mechanism.
  3. FEES. Customer will pay all fees set forth in the applicable Order (the "Fees") to Company. Without limiting remedies available to Company or Conversica, Customer agrees and understands that failure to pay all Fees owed when due (including failure of Company to pay Conversica on Customer’s behalf) will entitle Company or Conversica to suspend access to the Platform and terminate the Agreement immediately.
  4. TERM; TERMINATION. The term of this Terms of Service (the "Term") will begin on the date of Customer acceptance of these Terms of Service and will continue for the stated term of any Order entered into by the parties, subject to earlier termination as provided herein and/or in an Order.  Either party may terminate the Agreement in the event of a material breach by the other party, which is not cured within thirty (30) days after receipt of notice describing such breach; provided that any breach of Sections 1 or 2 will have a five (5) day cure period. Notwithstanding the foregoing, this Agreement shall not automatically renew if Company ceases to be an authorized reseller of the Platform, and Company agrees to promptly notify Customer and may terminate this Agreement.  In such event, Customer’s use of the Services shall be subject to Section 11 below.  Notices of termination or non-renewal are effective only if given by a Customer employee with authority to make such election.  Any attempt by Customer to terminate the Agreement except as permitted herein, will be of no force or effect, and Customer will continue to have access to and use of the Platform hereunder. Conversica may disable Customer's access code and suspend its access to the Platform at any time in the event Conversica reasonably suspects there has been a violation of Section 1 or 2, or if the provision of Services and/or use of the Platform results in high levels of complaints or other negative results, as determined by Conversica in its reasonable discretion, and in such event, Conversica will use reasonable efforts to give Customer notice after such suspension.  Upon termination or expiration of the Agreement for any reason (a) Customer and its Authorized Users will cease to have access to and use of the Platform and Services; (b) upon receipt of a Customer request to Company within thirty (30) days of termination or expiration, Company will arrange for Conversica to export the Customer Data to Customer in a mutually agreed format; and (c) Sections 2, the last sentence of this Section 4, and Sections 5 - 9 will survive, as well as any other provisions which by their terms or sense are intended to survive.
  5. LIMITATION OF LIABILITY. EXCLUDING THE PARTIES' INDEMNIFICATION OBLIGATIONS AND EXCLUDING CUSTOMER'S BREACH OF THIS AGREEMENT RESULTING IN THE PLATFORM OR SERVICE BEING "BLACKLISTED", "GREYLISTED" OR OTHERWISE RESTRICTED FROM NORMAL BUSINESS OPERATIONS BY ANY THIRD PARTY (TOGETHER, THE "EXCLUDED MATTERS"), NEITHER COMPANY, NOR ITS AFFILIATES, MEMBERS, MANAGERS, OFFICERS OR EMPLOYEES, OR ANY LICENSOR, INCLUDING CONVERSICA (COLLECTIVELY, "COMPANY ENTITIES"), ON ONE HAND, NOR CUSTOMER, OR ITS AUTHORIZED USERS ("CUSTOMER ENTITIES"), ON THE OTHER HAND, WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING LOST PROFITS, LOST DATA OR DOWNTIME COSTS), ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT ANY WARRANTY OR LIMITATION SHALL FAIL OF ITS ESSENTIAL PURPOSE. EXCEPT WITH RESPECT TO THE EXCLUDED MATTERS, IN NO EVENT WILL THE TOTAL LIABILITY OF THE COMPANY ENTITIES, ON THE ONE HAND, AND CUSTOMER ENTITIES, ON THE OTHER HAND, ARISING OUT OF THIS AGREEMENT EXCEED THE LESSER OF (A) THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (B) $50,000. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, therefore the above limitation may not apply to Customer to the extent prohibited by such local laws and instead liability will be limited to the maximum extent permitted by law.
  6. WARRANTY DISCLAIMER. THE PLATFORM AND SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY ENTITIES DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR ANY PARTICULAR PURPOSE.  COMPANY ENTITIES DO NOT MAKE ANY GUARANTEES, REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY DATA COLLECTED OR TRANSMITTED VIA THE PLATFORM AND/OR SERVICES; COMPATIBILITY OR INTEROPERABILITY OF THE PLATFORM WITH CUSTOMER'S SYSTEMS, INCLUDING WITHOUT LIMITATION CUSTOMER'S CLIENT RELATIONSHIP MANAGEMENT SOFTWARE; OR FOR THE QUALITY OR EFFECTIVENESS OF ANY COMMUNICATIONS THROUGH THE PLATFORM OR SERVICES. COMPANY ENTITIES MAKE NO REPRESENTATION THAT THE OPERATION OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  COMPANY ENTITIES PROVIDE NO ASSURANCES THAT CUSTOMER WILL ACHIEVE ANY SPECIFIC BUSINESS RESULTS FROM USE OF THE PLATFORM AND/OR SERVICES.  CUSTOMER HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN.
  7. INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless the Company Entities from and against any and all damages, losses, costs (including reasonable attorneys' fees), or other expenses arising from third party claims, actions, suits or proceedings against any Company Entity (a) alleging Customer's or its Authorized Users' breach of this Agreement, including allegations of use of the Platform or Services in any manner not permitted hereunder; or (b) in connection with the Customer Data when used by Company Entities as permitted hereunder.  Company agrees to indemnify, defend and hold harmless Customer Entities from and against any and all damages, losses, costs (including reasonable attorneys' fees), or other expenses arising from third party claims, actions, suits or proceedings against any Customer Entity (x) alleging that the Platform when used by Customer and its Authorized Users solely as permitted by this Agreement infringes any U.S. copyright, trademark or trade secret, or (y) alleging Company's breach of Section 2 of this Terms of Service.  The party seeking indemnity ("Indemnified Party") will give the party from whom indemnity is sought ("Indemnifying Party") timely written notice of the claim for which indemnity is sought and control of the disposition thereof; provided, that failure to give timely notice will not relieve the Indemnifying Party of its obligations except to the extent that such untimely notice materially impairs the Indemnifying Party's ability to defend such claim.  The Indemnified Party will cooperate with the Indemnifying Party's reasonable requests (at the Indemnifying Party's expense) in connection with the defense and settlement of such claim. Neither party will settle any claim for which indemnity is sought unless: (i) such settlement includes an unconditional release of the other party from all liability on the claim, or (ii) the other party gives its prior written consent, not to be unreasonably withheld.
  8. CONFIDENTIALITY; PUBLICITY. "Confidential Information" means: (i) business or technical information, including product plans, designs, source code, finances, marketing plans, business opportunities, personnel, research, development or know-how of the disclosing party and third party information that the disclosing party is obligated to keep confidential; (ii) information designated as "confidential" or "proprietary" or which, under the circumstances taken as a whole, reasonably should be understood to be confidential; and (iii) the financial terms of this Agreement.  In addition, the Platform, all details about the uses, functionalities or other aspects of the Platform (including user interface, screenshots and specific features of the Platform) are Conversica’s Confidential Information, and Customer Data is Customer’s Confidential Information.  Confidential Information shall not include information which: (a) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (b) is or becomes available to the receiving party on a non-confidential basis by a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (c) is developed independently by the receiving party without use of the disclosing party's Confidential Information and by persons without access to such information.  The receiving party shall use measures at least as protective as those it uses for its own confidential information (but no less than reasonable measures) to keep confidential and not to disclose to any third party any Confidential Information of the disclosing party, except to those of the receiving party's agents, representatives and employees (collectively, "representatives") who need to know such Confidential Information, who are informed of the confidential nature of the Confidential Information and who agree to be bound by terms of confidentiality at least as protective as those in this Agreement.  The receiving party shall not use any Confidential Information, directly or indirectly, for any purpose other than as necessary to perform its obligations and exercise its rights under this Agreement.  Each party shall be responsible for any breach of this Agreement by its representatives, which for purposes of Customer will include its Authorized Users.  If a receiving party becomes legally compelled to disclose any Confidential Information, it shall provide the disclosing party with prompt prior written notice to the extent legally permitted and assistance (at the disclosing party's expense) in obtaining a protective order.  Customer grants Company and Conversica the right without compensation to use Customer comments relating to the Platform and Service in connection with testimonials, quotes, for publication, and to use Customer's name and logo in client list and marketing materials.
  9. MISCELLANEOUS. (a) Company and Conversica may modify these Terms of Service at any time and in its sole discretion and will notify Customer of such modification via (i) email to the contact email provided by Customer; (ii) by presenting the new Terms of Service in its entirety at the time Customer next logs into the Platform; or (iii) by posting the revised Terms of Service within the Platform.  Changes to these Terms of Service shall be effective five (5) days after provision of notice by any of the methods provided above regardless of whether Customer actually receives any notification.  Customer is responsible for checking its account on the Platform on a regular basis and for ensuring that any contact information, credit card information or other information that it provides to the Company is current and accurate.  Customer's continued use of the Platform after notice of modifications as provided above shall be deemed to be Customer's continued acceptance of these Terms of Service, including any amendments and modifications. (b) Neither party will be liable for, nor considered in breach of or default under this Agreement on account of any delay or failure to perform its obligations under this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence.  (c) The failure of either party to enforce any provision of this Agreement will not constitute a waiver of such party's rights to subsequently enforce the provision, and a waiver of breach shall not be a waiver of any other or subsequent breach.  A party's remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.  (d) Customer may not assign any of the rights granted under this Agreement without Company's prior written consent, and any attempted assignment without such consent will be null and void.  (e) This Agreement represents the entire agreement between the parties with respect to the matters set forth herein, and supersedes any prior or contemporaneous agreements relating thereto, including without limitation any non-disclosure agreement, PO, vendor registration etc.  If any provision of this Terms of Service conflicts with an Order, the terms of the Order will prevail with respect to the Services ordered under such Order.  (f) This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules.  Each party agrees that any and all actions brought to enforce this Agreement or resolve any dispute arising out of or relating to this Agreement, the Platform or the Services shall be settled by binding arbitration before the American Arbitration Association ("AAA") in accordance with the then current Commercial Arbitration Rules of the AAA, with such proceeding to be conducted in a location to be mutually agreed upon by the parties or as designated by the AAA.  Any award shall be final and binding and judgment thereon may be entered in any court of competent jurisdiction.  Each party will bear its own cost of arbitration.  The foregoing will not preclude any party from seeking injunctive relief in order to protect its rights pending arbitration.  (g) If any provision of this Agreement is held invalid, such determination will not affect the remaining portions of this Agreement, and the affected provisions shall be interpreted and enforced to the full extent possible to carry out the intent of such provision.  (h) Any notice to Company must be in writing to:  DealerSocket, Inc. 7301 N Hwy 161, Suite 400, Irving, TX 75039, Attn: Legal Department, with a copy sent to Conversica, Inc., 950 Tower Lane, Suite 1200, Foster City, CA 94404, Attn: Legal, or such other address as Company and/or Conversica may give notice of pursuant to this section, and such notices shall be sent by U.S. first class registered mail, overnight delivery service or in person.  Conversica may provide electronic notices to Customer by general notice via the Platform and may give electronic notices specific to Customer by email to Customer's email address(es) on record in Customer's account information for the Platform.
  10. THIRD PARTY BENEFICIARY. Customer is hereby notified that Conversica, its successors and assigns are a third party beneficiary under the Agreement, and is entitled to enforce all rights of Company relating to the Platform and provision of related Services under the Agreement, in addition to enforcement by Company.  If Company ceases to be an authorized reseller of the Platform, Company’s rights and obligations under this Agreement with respect to such Services and Platform shall automatically be assigned to Conversica, upon notice by Conversica of such assignment, and so long as Customer continues to comply with the terms and conditions of this Agreement, Conversica will continue to provide Services through the remainder of the Subscription Term for which Conversica has received payment.