Enterprise End User License Agreement
ENTERPRISE END USER LICENSE TERMS AND CONDITIONS
(Effective September 2020)
- LICENSE; LICENSE RESTRICTIONS. Except for the License to the Product as set forth in the License Agreement, no rights or licenses, whether express, implied or statutory, are granted in or to the Product and all rights not specifically granted by Company hereunder shall remain exclusively with Company. Customer shall not, and shall not permit any User or other person or entity to: (i) copy, disassemble, decompile, decode, adapt or reverse engineer the Product; (ii) rent, lease, lend, sell, sublicense, or otherwise make available the Product to any third party; (iii) allow individual consumers or customers of Customer, or any other third party to access or use the Product; (iv) modify, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Product; (v) bypass or breach any security device or protection used for or contained in the Product; (vi) remove, delete, alter, obscure, or otherwise change the proprietary rights or other symbols, notices or marks relating to the Product; (vii) use the Product in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates applicable law; or (viii) use the Product, in whole or in part, for the purposes of (1) benchmarking or competitive analysis; or (2) any other purpose that is to the Company’s detriment or commercial disadvantage.
- INTELLECTUAL PROPERTY. Customer agrees that Company exclusively owns all right, title, and interest in and to the: (i) Product and (ii) History Data (as defined below), including any and all intellectual property rights related to any of any of the forgoing (collectively, the “Company Property”). Customer (i) agrees that Company has the right to use, and will also be the owner of, any content provided by Customer or its Users to Company hereunder and used in the Product or otherwise displayed on or by Company’s servers (“Content”) and (ii) represents and warrants that the Content does not and will not infringe or misappropriate the intellectual property rights of any third party or otherwise violate the laws or regulations of any governmental authority. Nothing in the Contract gives the Customer any right, title or interest in or to the Company Property. Customer hereby agrees that use of the Product generates usage data, which includes information related to users’ actions while using the Product, including VINs, and history information on deletion of vehicle personal information (collectively, “History Data”). For the avoidance of doubt, History Data does not include the name or identity of the Users or the name of Customer or its affiliates. Customer hereby agrees and consents to the Company’s collection of the History Data. Company shall have the right, at Company’s sole discretion, to use the History Data including to sell, publish, display or otherwise disclose History Data to third parties or otherwise use the History Data to develop or offer additional products and services that may be sold by Company. Customer further agrees to report to Company any alleged or actual infringement upon the rights of Company with respect to the Product, to the extent that such infringement relates to the use of the Product by Customer, or its Users.
- TERMINATION;EFFECT OF TERMINATION. In addition to any termination rights in the License Agreement, either Party may terminate this Contract for cause if the other Party is in material breach of this Contract, and the breaching Party fails to cure this breach within thirty (30) days following receipt of written notice describing the breach; provided, however, that the foregoing will not be deemed to extend the time period for any payment. Company may also terminate this Contract immediately upon written notice to Customer if Customer fails to pay the Monthly Fees then due within five (5) days following written notice of the late payment. Upon termination of this Contract, the licenses granted to Customer under the Contract shall terminate without further action required by either Party. and Customer shall (i) immediately cease using the Company Property and all other confidential information or data obtained from Company and shall not permit any Users, persons or entities to use or access any of the forgoing and (ii) promptly return any copies of the Product which exist in tangible form or shall, at the request of Company, destroy such copies. Notwithstanding any other provision of this Contract, the provisions of Sections 3, 5, 6(b) through 11 hereof shall survive any expiration or termination of this Contract, and any defined terms used in such Sections.
- PAYMENT TERMS. Customer shall pay Company the Monthly Fees in accordance with the payment terms set forth in the License Agreement. If Customer fails to make any payment when due then, in addition to all other remedies that may be available to Company, Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law. If such failure continues for 45 days following written notice thereof, then, in addition to the Company’s right to terminate the Contract under Section 4, Company may: (i) disable Customer’s use of the Product (including by means of a disabling code, technology or device); and/or (ii) withhold, suspend or revoke its grant of a license hereunder.
- LIMITED WARRANTY AND DISCLAIMER.
- The Company represents and warrants that: (i) it is authorized to grant the rights granted or licensed to Customer under the Contract to the Product; (ii) it will comply with all laws applicable to Company in the performance of its obligations under the Contract; and (iii) Customer’s use and receipt of the Product does not and will not infringe or misappropriate the intellectual property rights of any third party or otherwise violate the laws or regulations of any governmental authority. The representation and warranty in Section 6(a)(ii) shall not apply to the extent that the alleged infringement arises from: (A) use of the Product in combination with data, software, equipment, or technology not provided by Company; (B) Customer’s or User’s modifications to the Product; (C) modifications to the Product made by the Company at the request of Customer; (D) Content; or (E) Customer’s use of the Product not in compliance with the Contract.
- EXCEPT AS PROVIDED IN THIS SECTION 6 OR OTHERWISE IN THE LICENSE AGREEMENT, THE PRODUCT IS OFFERED “AS IS- WHERE-IS” AND WITHOUT ANY WARRANTIES, COVENANTS, CONDITIONS, REPRESENTATIONS, EXPRESSED, STATUTORY, OR IMPLIED BY STATUTE, USAGE, CUSTOM OF TRADE, OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY COMPANY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTIES REGARDING THE QUALITY OF THE PRODUCTS OR THE MATERIALS CONTAINED THEREIN, AND COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES OF DURABILITY, THAT THE PRODUCT AND/OR THE CUSTOMER’S USE OR RECEIPT THEREOF WILL MEET ALL OF THE CUSTOMER’S NEEDS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY LICENSED SOFTWARE, SYSTEM OR OTHER SERVICES, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR FREE.
- Existing Confidentiality Agreement Governs. If a confidentiality agreement or non-disclosure agreement (“Confidentiality Agreement”) exists between Company and Customer covering the Products, this Contract, or the relationship between Company and Customer, the term of such Confidentiality Agreement shall be and is hereby extended to be co-terminus with the Contract, and such Confidentiality Agreement is incorporated herein by reference and shall govern the use and disclosure of any confidential or proprietary information exchanged between Company and Customer.
- No Confidentiality Agreement. If there is no Confidentiality Agreement between Company and Customer covering the Contract or the relationship between the Parties, then the terms of this Section 7(b) shall apply to the Confidential Information (as defined below) given by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”). During the Term, a Receiving Party may be given access (directly or indirectly, in writing, orally or by inspection of tangible objects) to nonpublic business and technical information of the Disclosing Party as a result of the Contract (including, but not limited to, Company Property, business partner names and information and strategic plans), which information is of a nature that a reasonable person would understand it to be confidential and/or has been designated by the Disclosing Party as confidential (the “Confidential Information”). The terms and conditions of the Contract shall be considered Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.
- The Receiving Party agrees to: (A) use or copy the Confidential Information solely as necessary to fulfill its obligations under the Contract, (B) maintain the Confidential Information in strict confidence, using the same degree of care it exercises to protect its own confidential information, but not less than a reasonable degree of care, (C) restrict disclosure of the Confidential Information to those who need to know the Confidential Information to perform their obligations under the Contract and are subject to confidentiality obligations that are at least as restrictive as those contained herein, and (D) not reverse engineer, disassemble or decompile any prototypes, hardware, software or other tangible objects which embody the Confidential Information.
- Notwithstanding anything to the contrary in this Contract, the Receiving Party may disclose the Confidential Information if required by law or legal process, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. All documents and other tangible objects, all electronic files, and all data fixed in any other medium, containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the Disclosing Party, and shall be promptly destroyed or deleted by the Receiving Party, or returned to the Disclosing Party, upon the Disclosing Party’s written request, or upon termination of the Contract. The Receiving Party will not be required to search archived electronic back-up files of its computer systems for Confidential Information of the Disclosing Party in order to purge such Confidential Information from its archived files; provided, however, that the Receiving Party must: (A) maintain its confidentiality under this Contract as if it were still in effect, (B) not use the retained Confidential Information of the Disclosing Party for any other purpose; and (C) such retained Confidential Information shall at all times maintained in accordance with (1) applicable law, and (2) the receiving parties data retention policies.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) THAT RELATE TO THIS CONTRACT AND/OR TO THE PRODUCTS. TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCLUDING ANY GUARANTIES PAYABLE BY COMPANY TO CUSTOMER UNDER THE LICENSE AGREEMENT, COMPANY’S LIABILITY TO THE CUSTOMER WILL BE LIMITED TO ACTUAL DAMAGES INCURRED BY COMPANY AND COMPANY’S TOTAL LIABILITY TO CUSTOMER UNDER THIS CONTRACT OR OTHERWISE FOR THE PRODUCTS OR DAMAGES RELATING TO THIS CONTRACT SHALL NOT EXCEED, IN THE AGGREGATE, ONE MILLION DOLLARS ($1,000,000).
- Each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and its affiliates, and each of its and their respective employees, directors, officers, agents, shareholders, successors and assigns (each, an “Indemnified Party”), from and against all third party damages, penalties, costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnified Party resulting from: (i) the Indemnifying Party’s breach or violation of any of the terms of this Contract (including any representation or warranty); (ii) the Indemnifying Party’s violation of applicable law (including those related to data security and privacy); or (iii) the Indemnifying Party’s gross negligence or willful misconduct.
- With respect to any indemnification under this Section 8 the Indemnified Party must give prompt written notice to the Indemnifying Party of any action that the Indemnified Party seeks indemnification.; provided that the Indemnifying Party will only be relieved of its obligations if and to the extent that it has been actually prejudiced by the Indemnified Party’s failure to give notice as required, (ii) the Indemnifying Party will have sole control of the defense thereof and any related settlement negotiations; provided that any settlement or compromise which requires any admission of liability, affirmative obligation or any contribution from the Indemnified Party must be expressly approved in advance in writing by the Indemnified Party, and (iii) the Indemnified Party will use commercially reasonable efforts to cooperate with the Indemnifying Party and at the Indemnified Party request and expense may facilitate such defense or settlement using counsel of its choosing in connection with the defense of any such claim.
- BRANDING. Notwithstanding anything to the contrary in this Contract, Customer agrees that “powered by Privacy4Cars” will be stated whenever Customer (or any of its employees, agents, or contractors) refers to, or issue statements with respect to, the Product including, without limitation, all references or statements made orally, in writing, or otherwise. If there is a reference or a statement related to the Product in writing, Customer agrees that “powered by Privacy4Cars” must prominently displayed in English. Furthermore, Customer hereby grants to Company the right and license to use Customer’s name and logo for marketing and sale purposes, including the right to list Customer as a client on its internet properties and other promotional and sales materials.
- AUDIT RIGHT. Customer shall keep complete, true and accurate books and records of account containing reasonable particulars that may be necessary for the purpose of showing the amounts payable to Company hereunder and for the purpose of showing compliance with all other obligations under the Contract and applicable laws and regulations relating hereto (collectively “Records”), including, without limitation, any documentation or systems used to track and verify the VIN for each vehicle that Customer or its Users deleted electronically stored personal information from whether or not using the Product (“Deletion Records”). Customer shall make available all such Records during the Term and for two (2) years following the end of the calendar year to which they pertain for inspection and copying by Company or its agents, upon reasonable notice. No less than twice each twelve (12) month period during the Term, Customer agrees that Company will have the right, upon request, to audit the Deletion Records to verify that all of the vehicles and related VINs that Customer and its Users have deleted personal information from matches the number of deletions from the Product. Customer agrees to provide Company and its designees reasonable access to Customer’s facilities for the purpose of conducting audits and inspections of the Records and Deletion Records pursuant to this Section 11; provided, however, Company agrees that such access will not disrupt Customer’s ability to conduct its business in the normal and usual manner. Customer shall promptly pay Company for any underpayment discovered and confirmed by Customer. Should any inspection of the Records lead to the discovery of a discrepancy in reporting to Company of 5% or $1,000, whichever is greater, then, in addition to any other amounts due to Company, Customer will pay the reasonable cost of the audit and inspection.
- MISCELLANEOUS. Except as may be set forth in the License Agreement, the Contract and all disputes arising hereunder will be governed and construed in accordance with the laws of the State in the United States where Customer is located (and if Customer is not located in the United States, then the State of Georgia) without regard to choice of law principles. The provisions of the Contract shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, and permitted successors and assigns. Customer may not assign the Contract or the rights and obligations hereunder, whether in whole or in part, to any third party without the prior express written approval of Company. Any purported assignment in violation of this Section 12 shall be null and void. No waiver by either Party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Contract. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Contract. The Contract constitutes the entire agreement between Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written discussions, understandings, representations and agreements. These Terms and Conditions may not be modified unless agreed in a writing signed by an authorized representative of Company. Each Party shall be excused for delay in the performance of any obligations hereunder (other than payment obligations) when such delay is the result of or attributable to the elements, acts of God, acts of governmental authority, epidemics, pandemics, travel restrictions, strikes, lock-outs, labor troubles, failure of power, riots, insurrection, war, delays in transportation, or any other cause beyond their reasonable control.
***End of Enterprise End User License Terms and Conditions***
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