MASTER SERVICES AGREEMENT
Last updated: March 2023
The terms and conditions of 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 that may be listed on one or more fully executed order forms (each, an “Order”). Notwithstanding the foregoing, the parties acknowledge and agree that any services, goods, and/or products provided to Customer as part of or in connection with the Products, whether or not itemized or documented in an Order, are subject to these Terms. 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 the 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 these Terms.
1.3 Suspension and Termination. 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. The Products themselves and/or Customer’s use of the Products in any way that violates the Agreement or any law or regulation; 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 to perform services on behalf of Customer in connection with Customer’s obligations under this Agreement and who will be bound by these Terms; (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, the performance, the capacity or the results of any performance, capacity, pilot or 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 Availability and Use of 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 reserves the right to discontinue providing any Product upon sixty (60) days prior written notice to Customer; provided, however, DealerSocket will make best reasonable efforts replace any such Product with a product functionally similar to the Product being replaced, at no additional cost to Client, for the remainder of the then current term. 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.
2.5 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.
2.6 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.
2.7 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, agents or individual contractors (“Users”) and will only permit Users to access and use the Products in accordance with these Terms 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.
3.4 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:
|Windows 10||1.6GHz (x64)||4GB||20GB|