THESE TERMS AND CONDITIONS (these “Terms”) govern the provision of services by Cardone Automotive Resources (“CARS”).
In consideration of the fees and payments set forth in Section 4 hereof, and subject to the terms hereof, CARS hereby grants to Client a nonexclusive license to use the Software for the purposes set forth on the relevant Sales Order(s), by an unlimited number of in-house web browser users on a single instance of the Software supplied by CARS. Client will not utilize the Software for any purpose which conflicts with any applicable law. This license is not transferable. The Software is licensed, not sold. CARS is the sole and exclusive owner of the Software. All rights not expressly granted hereunder are hereby by expressly reserved by CARS. Client may not use the Software or any Interface (as defined below) other than as specified in this Agreement without the prior written consent of CARS, and Client acknowledges that additional fees may be payable on any change of use approved by CARS. Client shall have public internet access and Microsoft Internet Explorer 9.0 or higher.
Client hereby authorizes CARS to perform various functions with Client-supplied legacy and current ongoing sales data, service area data, inventory data, manufacturer data, as well as third party data (“Client Data”), including without limitation customer information relating to previous sales and/or service transactions, and CARS may use one or more third party providers to transmit, process and/or store Client Data. Without limiting the obligation to comply with all applicable laws and regulations, Client shall provide its customers with notice of its privacy practices in such a manner as to secure from its customers all necessary rights to use, share and transfer the Client Data as set forth herein. Client warrants that all privacy notifications, Client permissions and disclosures have been made and secured from the applicable parties, and that Client’s grant of access to Client Data does not violate the rights of any third party and complies with all applicable laws. This Agreement shall be deemed to constitute Client’s written consent to Client’s dealer management system (“DMS”) provider to permit CARS to access data on Client’s DMS. CARS is not responsible for any unauthorized transactions or inquiries, and Client shall indemnify CARS with respect to any claims arising from CARS’s authorized use of Client Data.
Client shall deliver every business day the Client Data via an agreed method to the CARS server. Installations may include deployment of a connectivity solution (an “Interface”) that may be supplied by a third party provider (an “Interface Provider”), which may include Client’s DMS provider. CARS will use its proprietary systems, an Interface and/or approved partner providers, to access the Client Data provided by the Client. If required in order to access the Client Data, Client will provide CARS and/or approved certified partner providers with access credentials so that CARS can be configured to receive the Client Data automatically.
Client agrees that CARS may collect and use technical and related information, including but not limited to Client’s operations that is gathered periodically to facilitate the provision of Software and updates to Client, and to verify compliance with this Agreement.
If Client, through CARS’s system, receives pre-screen services for the granting of credit, Client will fully comply with all applicable provisions of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., which shall include, without limitation, (a) not divulging the credit criteria used for any program or the meaning of any flag, score or coded or encrypted information to any person (other than the consumer), including without limitation another third party processor, (b) not in any direct mail or telemarketing solicitation referring to any selected criteria or any presumed knowledge of the recipient, (c) providing each written solicitation made to a consumer the statement and disclosure required by Section 615(d) of FCRA, (d) maintaining all criteria used to select the consumer to receive the offer and any requirements of collateral for a two (2) year period, (e) not storing, compiling, maintaining or retaining any credit/pre-screen list for any purpose other than as allowed by law and (f) ensuring each consumer that qualifies receives an offer of credit, as outlined in Section 615(d) of FCRA.
As used herein, “Confidential Information” is defined as any information, whether written or verbal, of either party hereto (the “Disclosing Party”), which is disclosed to or observed by the other party (the “Receiving Party”) in connection with or as a result of the transactions contemplated by this Agreement and which, at the time of disclosure is marked as being “Confidential” or “Proprietary,” or is reasonably identifiable as confidential information of Disclosing Party. Such Confidential Information may include, but is not limited to, databases, trade secrets, business plans, forecasts, projections or analyses, software, hardware or system designs, specifications, manufacturing processes, documentation, code, architecture, structure or protocols and other intellectual property. All copies of such information made by Receiving Party shall also be considered as “Confidential Information.”
Receiving Party will retain the Confidential Information in confidence and use the Confidential Information for the sole purpose of engaging in the transactions contemplated by this Agreement and will not otherwise appropriate such Confidential Information to its own use or to the use of any other person or entity. Confidential Information shall only be disclosed (a) to Receiving Party’s employees, agents and consultants to the extent that such persons have a specific need to know the Confidential Information for the purposes contemplated herein and have agreed to abide by confidentiality restrictions comparable to Receiving Party’s obligations hereunder or (b) pursuant to the lawful requirement or request of a Governmental Agency, or as required by applicable law (provided that the party making the disclosure has given notice to the other party and has made a reasonable attempt to obtain a protective order limiting disclosure and use of the information so disclosed). Receiving Party shall promptly advise Disclosing Party in writing if it learns of any unauthorized use or disclosure of Confidential Information by any of its employees or former employees.
Notwithstanding any other provisions of this Agreement, Confidential Information shall not include information which (i) is or becomes publicly known through no wrongful act of Receiving Party; or (ii) is obtained from a third person who is not prohibited from transmitting the Confidential Information to Receiving Party by a contractual, legal or fiduciary obligation to Disclosing Party; or (iii) is independently developed by Receiving Party without breach of this Agreement.
All Confidential Information disclosed shall remain the property of Disclosing Party, and all documents and other materials shall remain the property of Disclosing Party. Upon request of Disclosing Party, Receiving Party will return to Disclosing Party or destroy all copies of Disclosing Party’s Confidential Information.
The parties each acknowledges that the Confidential Information derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use and that this Agreement constitutes efforts that are reasonable under the circumstances to maintain the secrecy thereof. The parties further each acknowledges that the Confidential Information may constitute trade secrets within the meaning of and pursuant to the Uniform Trade Secrets Act contained set forth at California Civil Code §3426, et seq., and specifically, without limitation, California Civil Code §3426.1.
Receiving Party acknowledges that Disclosing Party will be irreparably harmed if Receiving Party’s obligations under this section 3 are not specifically enforced and that Disclosing Party would not have an adequate remedy at law in the event of an actual or threatened violation by recipient of its obligations. Therefore, Receiving Party agrees that Disclosing Party shall be entitled to seek injunctive relief against any actual or threatened violations or breaches by Receiving Party, its employees, or agents without the necessity of Disclosing Party posting bond or other security or showing actual damages or showing that monetary damages would not afford an adequate remedy.
Fees and Payment Terms
For the web-based deployment of the Software, the monthly license, maintenance and support fee for the CARS services and all included modules, exclusive of any applicable taxes, is as set forth on the Sales Order(s). CARS services and all related modules are subject to termination by written notice to Client if any CARS invoice is more than 30 days past due.
Unless otherwise agreed in writing, this Agreement shall remain in effect for 90 days after the initiation of the CARS services, and thereafter continue on a month to month basis unless and until terminated by not less than 30 days’ written notice from either party.
This Agreement and all rights to use or access the Software and any Interface will terminate immediately upon Client’s breach of any material provision of this Agreement.
Whether or not requested by CARS, Client shall promptly delete and remove all Software from its systems upon the expiration or termination of this Agreement and shall return all materials to CARS.
Client understands and agrees that, for administrative purposes, CARS may retain Client Data on CARS’s system for a reasonable period of time following the end of the term of this Agreement.
Each party will comply with all applicable legal obligations relating to privacy, security, integrity, and confidentiality of Client Data, except for aggregated data that does not enable identification of Client’s individual retail customers, which obligations may include the Gramm-Leach-Bliley Act and its implementing regulations, the Personal Information Protection and Electronic Documents Act of Canada, the laws of any state of the United States, and the laws of any province of Canada.
Each party will, at a minimum, implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to: (a) ensure against any anticipated threats or hazards to the security or integrity of Client Data; and (b) protect against unauthorized access to or use of Client Data that could result in substantial harm or inconvenience to Client or any individual who is the subject of the Client Data.
CARS covenants to notify Client promptly in writing in the event of a breach, or suspected breach, of security of any such confidential information. Client assumes responsibility for disabling access to any unauthorized users, including without limitation past employees.
Each party may disclose Client Data, when required, pursuant to any federal or state law or regulation or rules or regulations of any governmental agency. These provisions shall apply during the term and after the termination of this Agreement.
Disclaimer of Warranty
THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THE SERVICE IS (A) FREE OF DEFECTS OR ERRORS, (B) VIRUS FREE, (C) ABLE TO MEET ANY REQUIREMENTS OF CLIENT OR ANYONE ELSE, (D) ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, (E) MERCHANTABLE, (F) FIT FOR A PARTICULAR PURPOSE OR (G) NON-INFRINGING. CLIENT UNDERSTANDS THAT CARS HAS NO CONTROL OVER THE CONTENT TO WHICH CLIENT MAY BE EXPOSED DURING USE OF THE SERVICE AND/OR SOFTWARE, AND CLIENT ASSUMES THE ENTIRE RISK OF USING THE SERVICE AND/OR SOFTWARE.
Limitation of Liability
NEITHER CARS NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, DIRECTORS, AND AGENTS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS AND LOST DATA, IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IN THE EVENT THAT CARS HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. CARS’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY WITH RESPECT TO USE OF THE SOFTWARE AND/OR SERVICE SHALL BE THE REPLACEMENT OF ANY SOFTWARE FOUND TO BE DEFECTIVE.
CARS shall indemnify and hold harmless Client for any and all liabilities as a result of claims or suits due to, because of, or arising in any way out of CARS’ operations, including, without limitation, personal injury, property damage or intellectual property infringement or other claims (the “CARS Claims”). Except with respect to the CARS Claims, Client shall indemnify and hold harmless CARS for any and all liabilities as a result of claims or suits due to, because of, or arising in any way out of a breach of this Agreement by Client or the operation of Client’s business, including, without limitation, personal injury, property damage or intellectual property infringement.
Objectives and Claims
CARS can make no guarantees as to the amount of projected revenue or profits to be generated by the business relationship contemplated by this Agreement, nor has it provided Client with statements concerning a range of earnings. Client acknowledges and recognizes that the business relationship contemplated by this agreement involves normal business risks and that its success will be dependent upon a number of factors that CARS may not have influence or control over.
This Agreement may be amended or altered only by execution of a written agreement signed by all the parties hereto.
The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof and the Agreement shall be construed in all respects as if such invalid or unenforceable provision had been omitted.
This Agreement contains the entire understanding of the parties relating to the subject matter hereof and supersedes any prior oral or written agreement or understanding of the parties.
Any dispute, question or difference arising between the parties to this Agreement in connection with this Agreement or otherwise in regard to the relationship of the parties hereto by virtue of the terms in this Agreement, including the construction and scope of this Agreement, that cannot be amicably resolved between them, shall be finally settled in accordance with Commercial Arbitration rules and regulations of the American Arbitration Association (“Association“) then in effect by one or more arbitrators mutually selected by the parties from the commercial panel of the Association. The arbitrator(s) to be appointed shall be English speaking persons. The arbitrator(s) shall have the power to extend time for pronouncing the award with the consent of the parties. Judgment upon an arbitration may be entered in any court having competent jurisdiction thereof, and shall be binding, final and non-appealable. The arbitrator(s) shall have the power to award any and all remedies and relief whatsoever that is deemed appropriate under the circumstances, including, but not limited to, money damages and injunctive relief.
In the event that any dispute, question or difference arising between the parties to this Agreement are NOT settled via Arbitration, this Agreement and all transactions contemplated hereby shall be governed by, construed and enforced in accordance with the laws of the State of Florida, without regard to its conflicts of laws provisions. The UN Convention for the international sale of goods is hereby expressly excluded. Each party irrevocably agrees that only a state or federal court located in Florida shall have jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement, and the parties herein submit to the personal jurisdiction and venue of any such courts.
Updated December 1, 2018