Effective Date: January 1, 2023
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
Modifications to this Agreement: From time to time, DealerRock may modify this Agreement. Unless otherwise specified by DealerRock, changes become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Service Order Form after the updated version of this Agreement goes into effect. DealerRock will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service through any online provisioning, registration or order process or (b) the effective date of the first Service Order Form, as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
These Terms of Service (the “Agreement“) is entered into by and between DealerRock, a Delaware Limited Liability Company (“DealerRock“or “Provider“) and the person or entity placing an order for or accessing the Service (“Customer” or “you“). In consideration of the terms and conditions set forth below, the parties agree as follows:
1. Provision of Service. DealerRock will make the Services and Software available to Customer pursuant to this Agreement, the Supplemental Terms (where applicable), the applicable SOF, and the Documentation, and provide such Services in accordance with this Agreement, and laws and government regulations applicable to DealerRock’s business, during each Subscription Term. During the Subscription Term, DealerRock grants to Customer a limited, non-exclusive right to access and use the Services and Software only for its internal business purposes, for up to the number of Users included in the Service Plan or otherwise noted in the SOF, including the right to download, install and use the Mobile Apps in connection with the authorized use of the Services.
2. Responsibilities of Customer
a. Customer Account. Customer may need to register for an Account in order to place orders or access or receive the Services. Customer agrees to keep its Account information current, accurate and complete so that DealerRock may send notices, statements and other information to Customer via email or through its Account, which notifications will be subject to this Agreement and the Privacy Notice. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify DealerRock promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. DealerRock and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
b. Use Restrictions. Customer agrees not to use the DealerRock Technology (as defined below) to: (i) process data on behalf of any third party other than Customer’s Users and End Users; (ii) send unsolicited communications, junk mail, spam, or other forms of duplicative or unsolicited messages in violation of spamming or other laws; (iii) use the Service or DealerRock Technology in violation of applicable law (iv) store or transmit any content that infringes upon any third party’s intellectual property rights; (v) interfere with or disrupt the integrity or performance of the Services and their components; (vi) post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (vii) post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (viii) track cookies, ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law.
In addition, Customer will not: (ix) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the DealerRock Technology available to any third party other than Users and End Users, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (x) modify, adapt, or hack the DealerRock Technology or otherwise gain or attempt to gain unauthorized access to the DealerRock Technology, its related systems or networks; (xi) falsely imply any sponsorship or association with DealerRock; (xii) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of DealerRock Technology.
3. Customer Data
a. Use of Customer Data. As between the parties, Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the DealerRock Technology. Subject to the terms of this Agreement, Customer hereby grants to DealerRock and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Services, Software, Mobile Apps, and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to DealerRock under this Agreement. Customer agrees not to upload any Customer Data containing electronic patient health records or information (“ePHI“) unless Customer has entered into a business associate agreement with DealerRock, which will govern the parties’ respective obligations with respect to any ePHI uploaded by Customer to the Services, Software, or Mobile Apps (“BAA“). Upon mutual execution of a BAA, the BAA is incorporated by this reference into this Agreement and is subject to its terms. If Customer is permitted to submit ePHI data into the Service, Software or Mobile App, then Customer may submit such data to DealerRock and/or the Service only by uploading it as Customer Data. Unless a BAA is in place, DealerRock will have no liability under this Agreement for ePHI supplied by Customer or any User or End User, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations. Customer agrees not to upload credit cardholder data to the Service, Software or Mobile App unless Customer’s SOF expressly states that Customer is purchasing the PCI-compliant version of such offerings.
b. Data Security. DealerRock will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. DealerRock measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that DealerRock and its Affiliates will process Customer Data in accordance with applicable data protection laws, this Agreement, including the DPA, and the Privacy Notice.
4. Intellectual Property
a. Ownership Rights. Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and DealerRock obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Notice. DealerRock and its licensors retain all right, title, and interest in and to DealerRock Technology. Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services, except (if applicable) for any downloadable Software, in object code format. DealerRock may freely use and incorporate into DealerRock’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to DealerRock products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by DealerRock in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users.
b. Usage Data. Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support, and/or about Customer’s use of the Services, Software, DealerRock’s websites, DealerRock’s APIs, or the DealerRock marketplace (“Usage Data”). Notwithstanding anything to the contrary in this Agreement, DealerRock may collect and use Usage Data to develop, improve, support, and operate its products and services. DealerRock may share Usage Data that includes Customer’s Confidential Information with third parties to the extent necessary to provide the Service and in accordance with Section 7 (Confidentiality) of this Agreement. DealerRock may also utilize Customer Data for its internal business purposes only to the extent such Customer Data has been aggregated and anonymized such that Customer and Customer’s Users and End Users cannot be identified.
c. Updates. DealerRock may update the Services and Software from time to time and Customer may receive notifications of Updates. Any Updates to the Services and Software are subject to this Agreement. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by DealerRock with respect to future functionality or features.
d. Other Services. Certain other services, such as third-party applications, are made available to Customer through the DealerRock settings area. These Third Party Services may integrate with the Services and are not licensed by DealerRock pursuant to this Agreement, but are governed by the third party provider’s terms and conditions and privacy policies that accompany them, which Customer must separately accept. By enabling Third Party Services, Customer understands and agrees that DealerRock is neither responsible for Customer’s use of these Third Party Services, nor does it provide any warranties whatsoever for these Third Party Services. DealerRock is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third Party Services. Customer understands that DealerRock is not responsible for providing technical support for the Third Party Services and that DealerRock is not responsible for the data hosting and data transfer practices followed by the providers of such Third-Party Services.
5. Fees and Payment
a. Fees and Payment. All charges associated with Customer’s Account (“Fees“) are set forth in the applicable SOF or Website, and are due and payable in full within thirty (30) days from the invoice date or as stated in the applicable SOF. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the applicable SOF or Website. Unless otherwise set forth in the SOF, Customer’s subscription to the Services will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 6(b) below. During the Term, the Customer may not reduce their Service Plan or User count.
b. Late Payments. If undisputed Fees are more than thirty (30) days overdue, then, following written notification from DealerRock, DealerRock may suspend Customer’s access to the DealerRock Technology, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full.
c. Payment Disputes. DealerRock will not exercise its rights under Section 5(b) (Late Payments), 6(d) (Termination for Cause) or Section 6(c)(i) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
d. Applicable Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes“). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent DealerRock is legally required to collect the same, will be itemized on the DealerRock invoice. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that the DealerRock receives the amount actually quoted and invoiced. If DealerRock has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides DealerRock with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Term, Termination and Suspension
a. Term. This Agreement is effective as of the Effective Date (or, for online Customers, the date of sign up on the Website) and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant SOF (or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein.
b. Renewal. Unless a party gives written notice of non-renewal at least sixty (60) days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew for a period equal to the previous Subscription Term or one year (whichever is shorter). DealerRock reserves the right to increase the Fees at the beginning of each Subscription Term.
c. Suspension. DealerRock may suspend Customer’s access to the Services, Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by DealerRock to prevent or address the introduction of Malicious Software (as defined in Section 8.b below), a security incident, or other harm to Customer, DealerRock, or DealerRock’s other customers. DealerRock will notify Customer of any such suspension. DealerRock will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or DealerRock Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.
d. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
e. Free Trial Customers. Upon the expiration of Customer’s free trial, DealerRock may immediately suspend Customer’s access to the Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. DealerRock will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.
f. Data Export. Upon termination or expiration of this Agreement or any SOF for any reason, Customer’s access to the Services, Software, Mobile Apps, APIs and other DealerRock Technology will terminate. DealerRock strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. Customer agrees, following the termination or expiration of this Agreement or an unrenewed Subscription Term, that Customer Data will be retained or deleted in accordance with the Supplemental Terms, as applicable to Customer. Where Customer Data is retained by DealerRock and can be exported, and provided that Customer is current on its payment obligations as described in Section 5, Customer may contact DealerRock within fourteen (14) days following the effective date of termination to have DealerRock export Customer’s Customer Data. Customer Data cannot be recovered once it is deleted.
7. Confidentiality. Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. Warranties/Disclaimer of Warranties
a. Service Warranty. DealerRock warrants that the Services, Software or Mobile Apps will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, DealerRock will use diligent efforts to correct the Services, Software, or Mobile Apps so the foregoing warranty is met, and if DealerRock is unable to make such corrections in a timely manner, either party may terminate the applicable SOF, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services, Software, and Mobile Apps, modifications to the Services, Software, and Mobile Apps by anyone other than DealerRock or its representatives, or third-party hardware, software, or services used in connection with the Services, Software, and Mobile Apps.
b. Malware Warranty. DealerRock warrants that the Services hosted by DealerRock will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of DealerRock or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).
c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
9. Limitation of Liability
a. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
b. EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED OR PAYABLE TO DealerRock IN THE TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP“).
c. IN THE CASE OF IP CLAIMS AND DATA CLAIMS, DealerRock AND ITS AFFILIATES’ TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“SUPERCAP”).
d. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
e. THE PARTIES AGREE THAT THIS SECTION 9 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SOF.
10. Indemnification
a. Indemnification by DealerRock. DealerRock will defend Customer and its Affiliates, from any third party claim alleging that Customer’s use of the DealerRock Technology as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim“), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by DealerRock (including reasonable attorneys’ fees) resulting from such IP Claim. DealerRock will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the DealerRock Technology by Customer, its Affiliates or Users; (ii) modification of the DealerRock Technology by anyone other than DealerRock or its representatives; or (iii) the combination, operation or use of the DealerRock Technology with other data, hardware or software not provided by DealerRock. If Customer’s use of the DealerRock Technology results (or in DealerRock’s opinion is likely to result) in an IP Claim, DealerRock may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by DealerRock, then either Customer or DealerRock may terminate Customer’s subscription to the Service, whereupon DealerRock will refund Customer, on a pro-rated basis, any Fees Customer has previously paid DealerRock for the corresponding unused portion. The sections above state DealerRock’s entire liability and Customer’s exclusive remedy with respect to an IP Claim.
b. Indemnification by Customer. Customer will defend DealerRock and its Affiliates from any third party claim (“Claim“), and will indemnify and hold harmless DealerRock and its Affiliates from and against any damages and costs awarded against DealerRock and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, or (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.
c. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
11. Miscellaneous.
a. Use of Third Parties for Payment Processing. DealerRock may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for DealerRock. Customer must notify DealerRock of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing DealerRock at support@dealerrock.com.
b. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all SOFs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
c. Entire Agreement. This Agreement, together with any SOF, the Privacy Notice, and Supplemental Terms, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and DealerRock regarding the subject matter hereof. In the event of a conflict between the Privacy Notice, the Supplemental Terms, or any SOF or purchase order and this Agreement, the order of precedence will be, first, the Privacy Notice, second, the SOF, third, the Supplemental Terms, and fourth, this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.
d. Publicity Rights. DealerRock may identify Customer as a DealerRock customer in its promotional materials. Customer may request that DealerRock stop doing so by submitting an email to support@dealerrock.com at any time. Please note that it may take us up to thirty (30) days to process a request.
e. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
f. Survival. Sections 2.b (Use Restrictions), 4 (Intellectual Property), 5 (Fees and Payment), 6 (Term, Termination and Suspension), 7 (Confidentiality), 8.c (Warranty Disclaimer), 9 (Limitation of Liability), 10 (Indemnification), 11.c (Entire Agreement), 11.f (Survival), 11.g. (Notices), 11.j (Governing Law) and 11.k (Dispute Resolution) and 12 (Definitions) will survive any termination of termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
g. Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or US mail to the mailing address provided on the SOF; or (ii) electronic mail to the e-mail address provided for Customer’s Account. The address for a notice to DealerRock is: DealerRock, 25 Town Center Blvd, Suite 104, Crestview Hills, KY 41017 with a copy to support@dealerrock.com by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
h. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify DealerRock at support@dealerrock.com.
i. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to but not limited to, acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event“). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all SOFs on written notice to the non-performing party. If DealerRock is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services, Software or Mobile Apps for the period noted herein, and Customer terminates this Agreement and all SOFs, then DealerRock will provide Customer a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.
j. Governing Law. This Agreement is governed by the laws of the State of Kentucky without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of Kentucky, Kenton County for any claims or dispute relating to this Agreement.
k. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in Crestview Hills, Kentucky. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
l. Export Compliance and Use Restrictions. The Services and other Software or components of the Services which DealerRock may provide or make available to Customer or Users may be subject to U.S. (or other territories) export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS“) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC“) (collectively, “Export Control Laws“). Customer agrees to comply with all the Export Control Laws as they relate to access to and use of the Services, Software, and such other components by Customer and Users. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including Crimea, Cuba, Iran, North Korea, and Syria) (a “Prohibited Jurisdiction“) and Customer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on, or owned or controlled by any party named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not permit Users to access or use the Service in violation of any Export Control Laws, (iv) no Customer Data created or submitted by Customer is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and (v) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Customer’s Users are located. Customer further agrees that Customer will not use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any Customer Data to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which Customer may be subject. Customer acknowledges that the Service(s) and other Software may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Control Laws.
m. Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
12. Definitions.
“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.
“Affiliate” or “Subsidiary” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means, all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services.
“Data Claims” means any claims arising from either (a) a party’s breach of Section 3 (Customer Data), Section 7 (Confidentiality), the DPA, the BAA (if applicable), or the Privacy Notice, where such breach results in the unauthorized disclosure of Customer Data, or (b) breach of Section 2 (b) (Use Restrictions).
“Documentation” means, the then-current, generally available user documentation provided by DealerRock detailing the functionalities of the Software and the Services.
“End User” means, any person or entity other than Customer or Customer’s Users with whom Customer interacts using the Services.
“DealerRock Technology” means, (i) the Services, Software, Mobile Apps, Documentation, DealerRock’s APIs, DealerRock’s website(s) and any content published on the DealerRock’s websites, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) DealerRock’s Confidential Information and (iv) any modifications or derivative works of the foregoing.
“Mobile App” means, the DealerRock-branded Software applications provided by DealerRock to enable access and use of the Services through mobile or other handheld devices (such as apps on iOS or Android devices).
“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).
“Privacy Notice” means, DealerRock’s privacy notice currently at www.dealerrock.com/privacy, as updated from time to time.
“Service Order Form or SOF” means, (i) any service order referencing this Agreement and executed by Customer and DealerRock, or (ii) any online ordering document or process completed by Customer, including any online registration through a Website, each of which detail, the Services subscribed to and corresponding Service Plans, the number of Users authorized to use the Services, Fees payable to DealerRock, the applicable Subscription Term, and any relevant additional terms and conditions. This may also include any change order forms.
“Services” means, the DealerRock software-based service offerings identified on the SOF and any Updates, including any Software, API or Documentation made available by DealerRock with such offering, but excludes any applications or APIs separately provided by third parties.
“Service Plans” means, the pricing plans and other packaged offering limitations for and the applicable Services for which Customer subscribes with respect to any User.
“Software” means the generally available software provided by DealerRock in connection with Customer’s use of the Services, and includes Mobile Apps, but excludes any applications or APIs that are provided by third parties.
“Subscription Term” means, the period stated on a SOF during which Customer subscribes to the Services.
“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by DealerRock to all subscribing customers, but excludes separately priced new products or modules.
“User” or “Agent” means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.
