THE INDIVIDUAL OR ENTITY (“CUSTOMER”) EXECUTING ANY ORDER FORM, WORK ORDER, STATEMENT OF WORK, CONFIDENTIAL PROPOSAL, OR PROPOSAL (“ORDER FORM”) THAT INCORPORATES THIS MASTER SERVICES AGREEMENT (COLLECTIVELY, THE ORDER FORM AND THIS MASTER SERVICES AGREEMENT, ARE THE “AGREEMENT”) AGREES THIS AGREEMENT GOVERNS ALL ACCESS TO, AND THE PROVISION OF, THE SERVICES BY LIGHTYEAR DEALER TECHNOLOGIES, LLC dba DEALERBUILT, INCLUDING ITS AFFILIATES OR SUCCESORS, (“DEALERBUILT”) TO CUSTOMER. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE CUSTOMER HAS SIGNED AND ENTERED INTO ANY ORDER FORM WITH DEALERBUILT (“EFFECTIVE DATE”). Customer and DealerBuilt may be referred to herein, individually, as a “party” or collectively as the “parties.”
a. “Customer System” means all of the Customer’s leased or owned computer network, hardware, computer software, hosted solutions, and custom applications used at, or in connection with, any location from which Customer conducts its business.
b. “Customer Materials” means all of the software, specifications, content, or other Customer-provided materials, including the Customer System.
c. “DealerBuilt Property” means any confidential or proprietary materials in which DealerBuilt or its suppliers have an intellectual property interest and/or proprietary works of authorship, pre-existing or otherwise, including, without limitation, computer programs, methodologies, templates flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, administrative records, and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge, or data, and any derivatives thereof, which have been originated, developed, or purchased by DealerBuilt, a parent or affiliate of DealerBuilt, or by third parties under contract to DealerBuilt or to a parent or affiliate of DealerBuilt.
d. “Deliverable” means any deliverable specifically identified in a Work Order to be furnished by DealerBuilt to Customer.
e. “Force Majeure Event” means any event which is caused by or a result of a government law or order, action by any governmental authority, judicial or government decree, regulation, or other direction not the fault of the impacted party, communication line failure, 911 system failure, or 911 call inadequate response or failure, power failure and any natural disaster or act of God, war, terrorism (or threats of terrorism), invasion, hostilities, insurrection, riot, the order of any civil or military authority, explosion, fire, flood, earthquake, weather, lockouts, strikes, labor stoppages, or slowdowns or other industrial disturbances, the unavailability of personnel due to injury, sickness, death, pandemic, or termination of employment, either voluntary or involuntary or, without limitation, any other cause beyond the impacted party’s reasonable control.
f. “Services” means the services described in any applicable Work Order (as defined below). “Services” may also include any follow-up consultation or other services provided to the Customer by DealerBuilt, at its discretion, for which no separate written Work Order has been executed. Unless otherwise agreed by DealerBuilt in writing, “Services” specifically excludes, without limitation, any repair, replacement, maintenance, adjustment, or modification of the Customer System.
g. “Software Products” means software and other programming licensed by Software Publishers.
h. “Software Publisher” means a third party who licenses software to Customer or its agents.
i. “Work Product” means tangible and intangible personal property developed or purchased solely for or by Customer according to the terms of this Agreement and specifically identified as Work Product in a Work Order. Work Product does not include any DealerBuilt Property.
2. Purchase of Services. Customer may, from time to time, purchase Services from DealerBuilt by executing a written statement of work, scope of work, request for managed services, or other Order Form (each, a “Work Order”). Work Orders will specify the Services to be performed, any Deliverable, project schedule, any Work Product, applicable fees, and any additional terms and conditions. No Work Order will be effective unless and until executed by both parties. Once executed, all such Work Orders are hereby expressly incorporated in, and subject to, the terms of this Agreement. The Services shall be provided in material accordance with the provisions of this Agreement. Unless explicitly provided otherwise in a Work Order, in the event of a direct conflict between the body of this Agreement and a Work Order, the terms in the body of this Agreement will govern.
a. Confidential Information. During the course of this Agreement, each party may disclose to the other certain non-public information or materials relating to a party’s products, intellectual property, business, marketing programs and efforts, and other confidential information and trade secrets (“Confidential Information”). Notwithstanding the foregoing, Confidential Information does not include information that: (i) is or becomes publicly available through no breach by the receiving party of this Agreement; (ii) was previously known to the receiving party prior to the date of disclosure, as evidenced by contemporaneous written records; (iii) was acquired from a third party without any breach of any obligation of confidentiality; or (iv) was independently developed by a party hereto without reference to Confidential Information of the other party. If Confidential Information is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, that party receiving such subpoena or order shall promptly inform the other party in writing and provide a copy thereof, and shall only disclose that Confidential Information necessary to comply with such subpoena or order. Except as expressly provided herein, the receiving party will not use or disclose any Confidential Information of the disclosing party without the disclosing party’s prior written consent, except disclosure to and subsequent uses by the receiving party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving party’s obligations under this Section. Subject to the foregoing nondisclosure and non-use obligations, the receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. Neither party shall remove or alter any proprietary markings (e.g., copyright and trademark notices) on the other party’s Confidential Information.
b. Login Credentials & User Passwords. User login credentials must be kept up-to-date and attributable to named individuals within Customer’s account (generic email aliases may not be used). User login credentials cannot be shared or used by more than one user. Customer is solely responsible for keeping Customers’ and/or users’ account name, password, and any other login credentials confidential. Customer is responsible for any and all activities that occur within Customer’s account, whether authorized by Customer or not. Customer must notify DealerBuilt immediately of any unauthorized access or use of Customer’s account. Company will not be held responsible or liable for any losses due to lost or otherwise compromised passwords.
c. Privacy Notice. Notwithstanding anything to the contrary in this Agreement, DealerBuilt’s privacy notice (“Privacy Notice”) explains how DealerBuilt handles Customer Content (as defined in the Privacy Notice) and other data processed by the Services. Customer agrees to publish its own privacy notice or policy that complies with applicable law and takes into account the processing activities it has engaged DealerBuilt to provide. For more information on how personal data is handled in connection with the Services, as well as information on rights to access, correct, and lodge a complaint regarding the handling of personal data, please refer to the Privacy Notice.
d. Sensitive PII. Customer understands and acknowledges that the Services are not configured to process, receive, and/or store Sensitive PII. “Sensitive PII” means: (i) protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); (ii) ”nonpublic personal information” as defined under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); (iii) data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”); (iv) card holder data under the Payment Card Industry Data Security Standard; (v) personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation (the “special categories of personal data” identified in Article 9 of GDPR); or (vi) social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, criminal records, or insurance numbers, passport numbers, or other highly sensitive personally identifiable information. As such, Customer agrees not to, and not to permit users to, transmit, request, provide DealerBuilt with access to, submit, store, or include any Sensitive PII through the Services. Customer agrees that DealerBuilt may terminate this Agreement immediately, without refund, if Customer is in violation of this clause.
4. Performance of Services. DealerBuilt shall perform the Services for the Customer during the Term of this Agreement. During the Term, Customer shall provide DealerBuilt with reasonable cooperation, access to relevant personnel, access to the Customer System, and sufficient workspace and adequate conditions required to perform the Services. Unless expressly provided otherwise in a Work Order, Customer is solely responsible for obtaining all Customer System components relevant to the performance of the Services. DealerBuilt may suspend performance of the Services if any of the following occur:
a. the premises on which the Customer System is to be installed or is already installed do not meet the manufacturer’s specifications,
b. the Customer System, in whole or in part, is defective or is not otherwise in good operating condition,
c. the Customer makes alterations, additions, or modifications to the Customer System or any portion thereof that interferes with its normal and satisfactory operation,
d. the Customer has breached any license or user agreement term to which the Customer System, or any portion thereof, is subject; or
e. the Customer asks DealerBuilt to take any action that would, in the exercise of DealerBuilt’s sole discretion and judgment, result in the breach of any license, law, or user agreement.
a. Work Product. On payment in full by Customer of all amounts owed under an applicable Work Order and provided that the Customer is otherwise not in breach of its obligations under the terms and conditions of this Agreement or such Work Order (such time being referred to herein as the “Passage of Title”), all Work Product, if any, under such Work Order shall become and shall thereafter be the property of Customer, and DealerBuilt assigns to Customer all of DealerBuilt’s rights, including intellectual property rights, in such Work Product, exclusive of any component including or derived from DealerBuilt Property. Customer hereby authorizes DealerBuilt, at any time prior to the Passage of Title, to file financing statement(s) or take other actions to perfect its interest in the Work Product. In the event of a default by Customer hereunder, in addition to, and not in substitution of, any other rights DealerBuilt may have at law or in equity, DealerBuilt shall have the right to enter upon any location where Work Product is located and to take possession of, remove, or render inoperable any Work Product. Customer shall allow DealerBuilt access to any such Work Product located on its own property and grant permission for DealerBuilt to enter upon the property of others for the purpose of carrying out its rights described herein. Notwithstanding the foregoing or any other provision of this Agreement, DealerBuilt may retain in perpetuity a copy of all Work Product and Deliverables for its own internal purposes.
b. DealerBuilt Property. This is not a work-for-hire agreement, as that term is defined under the United States Copyright Act. Except for the limited license granted below, DealerBuilt retains all rights, title, and interest in and to the DealerBuilt Property. Upon payment in full by Customer of all fees due under the relevant Work Order, to the extent that any DealerBuilt Property is incorporated into any Deliverables (including Work Product), DealerBuilt grants to Customer a royalty-free, worldwide, non-transferable, non-exclusive, internal use, perpetual license to use, modify, and prepare derivative works of such DealerBuilt Property and to use and display such DealerBuilt Property, but only to the extent required to utilize the Deliverables in accordance with all limitations in this Agreement and as may be set forth in the relevant Work Order. Customer may not separately use or exploit the DealerBuilt Property apart from the Deliverable. Customer assumes sole and exclusive liability for any damages or claims that may arise from its breach of the foregoing license or any derivative works or modifications it creates of the Deliverables. Nothing in this Section shall be deemed to permit Customer to disclose, provide access to, sublicense, disassemble, decompile, reverse engineer, modify, create derivative works of, or transfer any DealerBuilt Property to a subsidiary, affiliate, or third party without prior, written consent of DealerBuilt. Furthermore, nothing herein shall be construed as limiting DealerBuilt’s ownership of any patent, copyright, or other intellectual property or trade secret rights in any information developed independently of this Agreement, even though such information may have been used in connection with DealerBuilt’s performance of its obligations under this Agreement. Nothing herein shall prohibit DealerBuilt or its affiliates or any of their employees or subcontractors from providing similar services to others and/or from using or disclosing to others the general knowledge, skill, and experience that they have developed over the years, including the general knowledge, skill, and experience that DealerBuilt and they develop under this Agreement.
c. Software Products. All Software Products remain the exclusive property of the Software Publishers and use of those products is governed by the Software Licenses, as defined below. Customer is responsible for compliance with all terms and conditions, including license scope, in all Software Licenses. The Software Products are not part of the Work Product or DealerBuilt Property.
d. Feedback. Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to DealerBuilt with respect to its products and services, including the Services. Feedback is voluntary and DealerBuilt is not required to hold it in confidence. DealerBuilt may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer hereby grants DealerBuilt an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with DealerBuilt’s business, including the enhancement of the Services and provision of services and products to its other customers.
e. Aggregated Data. Customer grants DealerBuilt a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty-free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Customer’s use of Services (the “Aggregated Data”) for DealerBuilt’s business purposes, including the provision of products and services to DealerBuilt’s customers; provided the Aggregated Data is combined with similar data from Provider’s other customers and does not include (directly or by inference) any information identifying Customer or any identifiable individual. The Aggregated Data will not be considered Customer’s Confidential Information.
a. Customer is responsible for the items listed below. Any failure or delay by Customer in performing these obligations will require payment of additional fees to DealerBuilt and delay performance of the Services.
b. Unless otherwise specified in a Work Order, Customer shall be responsible for preparing a suitable installation site, backing up all electronically stored data during the Term, and installing and connecting its product(s) within Customer’s environment compatible to the manufacturer’s specifications and as may be described in more detail in the Work Order.
c. Customer acknowledges that for DealerBuilt to perform the Services, Customer must make certain personnel or other resources available to DealerBuilt in a timely manner. The Customer agrees that it will cooperate in providing information or personnel upon DealerBuilt’s request. The Customer acknowledges that its failure to do so may prevent DealerBuilt from meeting milestones as designated in a Work Order.
d. Customer assumes responsibility for all content, material, messages, or data made available or transmitted, whether publicly posted or privately transmitted, in connection with the Services (“Content”) and for its compliance with all applicable federal, state, and local laws, regulations, ordinances, and codes, and acceptable use policies of any third-party vendors or web sites. Customer, and not DealerBuilt, is fully responsible for all Content that it uploads, posts, transmits, or otherwise makes available via the Services. Customer further agrees that it will not upload, post, or otherwise transmit:
i. any Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
ii. inappropriate Content that is illegal, harmful, unwanted, inappropriate, objectionable, confirmed to be criminal misinformation, or otherwise poses a threat to the public. All Content must be legal across all 50 U.S. states, the District of Columbia, and all Canadian provinces, as applicable;
iii. SPAM (i.e., unwanted messages such as but not limited to unsolicited bulk commercial messages);
iv. marketing content sent to recipients on paid or rented lists (of any form) or sent to list brokers (of any form) for distribution by them;
v. any Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content;
vi. fraudulent or misleading messages;
vii. any Content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
viii. any Content that infringes any rights of privacy or publicity. Customer is responsible for compliance with all applicable privacy laws, including but not limited to the Children’s Online Privacy Protection Act (COPPA), the Gramm-Leach-Bliley Act of 1999 (GLBA for financial privacy), the Telephone Consumer Protection Act (TCPA) affecting phone calls made with automated dialers, and applicable European Union Directives;
ix. any Content to falsely impersonate any person or entity, or falsely state or otherwise misrepresent its affiliation with a person or entity; DealerBuilt shall have the right to monitor Customer’s use of the Services to ensure compliance by Customer with its obligations under this Section 6;
x. other Content not allowed by U.S. carriers (e.g. T-Mobile, Verizon, and AT&T) and Canadian carriers, such as high-risk financial services (payday loans, short term-high interest loans, third-party mortgage loans, student loans, third-party auto loans, cryptocurrency), third-party lead generation services, debt collection or forgiveness, “get rich quick” schemes, illegal substances, prescription medications, gambling, and certain categories without proper age gating procedures (i.e. firearms, alcohol, tobacco (including vaping)); or
xi. in DealerBuilt’s sole judgment, messages or Content that are objectionable or that restrict or inhibit any other person from using or enjoying their device or email or other communications service, or that may expose DealerBuilt or others to any harm or liability of any type.
e. The Customer assumes full responsibility to back up and/or otherwise protect all data against loss, damage, or destruction.
f. Customer must keep records relating to all use and distribution of all Software Publisher software licenses (the “Software License”). Customer represents and warrants that Customer has title to or has a license or the right to use or modify the Software License or right to permit DealerBuilt to use, access, or modify any Software License that Customer has requested DealerBuilt to use, access or modify as part of the Services. It is Customer’s responsibility to independently ensure that ALL Software Licenses in use by Customer are properly licensed. DealerBuilt will not promote the use of, or knowingly support software which is not properly licensed by Customer.
g. DealerBuilt has the right, at Customer’s expense, to verify compliance with the Software License terms. Customer must promptly provide any information reasonably requested by DealerBuilt or any independent auditor retained by DealerBuilt in furtherance of the verification, including access to systems running the Software License and evidence of licenses for the Software License that Customer uses. Customer agrees to complete DealerBuilt’s self-audit process, which DealerBuilt may request at any time.
h. Assistance with software audits or Software Licensing compliance matters are billable at DealerBuilt’s then-current hourly rates. If the number of Software License deployments in Customer’s environment exceeds the number of Software Licenses (“Excess Software License Deployments”) in any given month, DealerBuilt will invoice Customer for Excess Software License Deployments at then current rates. Furthermore, if verification of the DealerBuilt audit reveals any unlicensed use of the Software License, at Customer’s own expense, Customer must immediately order and purchase sufficient licenses to cover its use. Customer agrees to pay DealerBuilt within ten (10) days of receipt of any invoice.
i. DealerBuilt will monitor Customer’s software usage regarding any Software Publisher on an ongoing basis to verify Customer’s compliance with the license terms for the Software License. DealerBuilt may engage an independent auditor, which will be subject to a confidentiality obligation. Any information collected in the DealerBuilt self-audit will be used solely for purposes of determining compliance. This verification will take place during normal business hours and in a manner that does not unreasonably interfere with Customer’s operations. DealerBuilt has the right to use software license tracking tools to provide the Services and to monitor Customer’s compliance with the terms of this Agreement. Even though DealerBuilt has the right to monitor Customer’s usage of software on an ongoing basis, DealerBuilt is not obligated to monitor Customer’s network for Software License compliance. Customer is responsible for any outcomes and consequences for its own software usage and/or Software License compliance. Customer acknowledges that Microsoft reserves the right to audit Customer for any use of Microsoft products.
j. Customer shall fully cooperate with DealerBuilt throughout the provision of the Services. Customer shall not uninstall or interfere with the software licensing tracking tools used by DealerBuilt to administer the Service, and Customer shall grant DealerBuilt all appropriate permissions and allow DealerBuilt the ability to implement configurations to allow the software tracking tools to function properly.
k. DealerBuilt and Customer agree to promptly notify the other party upon becoming aware of a confirmed use or disclosure of Customer Information in violation of governing laws and rules or this Agreement.
l. Customer Network Responsibilities:
i. Customer understands that unless otherwise specified herein or in a Work Order, DealerBuilt is not providing networking equipment other than the VPN device required by DealerBuilt.
ii. Customer also understands that it is responsible for providing either existing equipment or new networking equipment if existing equipment is not owned by Customer, or any other networking equipment needed for the DealerBuilt Services. Typical devices needed include, but are not limited to, network switches, edge routers, VPN devices, and firewalls.
iii. Customer responsibility includes managing its network for VPN remote access for which Customer or its agents may need to access. Customer is responsible for providing any necessary equipment for network communications with manufacturer or any other third party.
iv. If specified in the Agreement or a Work Order, DealerBuilt may include one VPN device. That VPN device’s sole capability is to connect the DealerBuilt system to DealerBuilt’s data center and support.
v. Customer is responsible for any wide area networking to connect remote buildings, connectivity for local area networks, and other connectivity. Customer’s responsibilities include fiber connections, internet connections, T-1 connections, or whatever technology is used to connect devices servers, networking equipment, etc.
a. The Service utilizes Twilio for calling and text messaging, and our numbers are provided by Twilio and subject to Twilio’s policies. By using the Service, you agree to Twilio’s Messaging Policy and Twilio’s Acceptable Use Policy. Please refer to Twilio’s policies, guidelines, and articles which outline acceptable use of Twilio’s service, which can be found here: Twilio’s US SMS Guidelines, Twilio’s Privacy Notice, and help articles: U.S. Carrier Penalties for Non-Compliant Messaging, Forbidden message categories for SMS and MMS. Additional requirements for specific Services, including any country-specific requirements, are set forth at Twilio’s Service and Country-Specific Requirements.
b. Prohibited Actions:
i. Customer agrees that it will not use the Service to violate any law, rule, regulation, or third-party right. In addition, Customer agrees not to:
1. Use any misleading or incorrect names, addresses, email addresses, subject lines, or other information in any message created or sent using the Service; or,
2. Share Customer account credentials with anyone.
c. Telephone Communication Compliance Requirements:
i. Customer must comply with all applicable laws in the United States including but not limited to:
1. The FTC Act’s “Truth in Advertising” Rules and Section 5 of the FTC Act 15 U.S.C. § 45;
2. The Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227;
3. The FCC Telemarketing Regulations implementing the TCPA, 47 C.F.R. § 64.1200, and FCC declaratory rulings and orders;
4. Telemarketing Consumer Fraud and Abuse Prevention Act (the Telemarketing Act), 15 U.S.C. §§ 6101 et seq.;
5. The FTC’s Telemarketing Sales Rule (TSR) implementing the Telemarketing Act, 16 C.F.R. §§ 310.1 et seq.;
6. The National Do-Not-Call Registry established by the Federal Communications Commission, 47 C.F.R. § 64.1200, and the Federal Trade Commission, 16 C.F.R. § 310.4, which can be accessed at https://www.donotcall.gov;
7. State Do-Not-Call Registries;
8. State telemarketing and do-not-call laws and regulations that impose additional requirements as well as more restrictive requirements than the federal laws and regulations referenced above;
9. State laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording, as some states require you to obtain consent from all parties to record a conversation;
10. applicable carrier guidelines or wireless industry guidelines and standards including, without limitation, the Cellular Telecommunications Industry Association (CTIA) Messaging Principles and Best Practices, the CTIA’s Short Code Monitoring Handbook, and the Mobile Marketing Association’s Consumer Best Practices (collectively, CTIA Policies).
ii. U.S. carriers have more stringent policies for sending communications through their networks and services. Note that the consent requirements defined by the CTIA and Twilio’s Messaging Policy are in addition to the minimum requirements defined by the TCPA. This means the consent requirements for sending SMS messages through U.S. carrier networks may exceed what may be legally required under TCPA. For more information on consent requirements, see Twilio’s Messaging Policy and Twilio’s Article on SMS Compliance and A2P 10DLC in the US.
d. Customer agrees that at DealerBuilt’s sole option and without further notice, DealerBuilt may use technologies and procedures, such as filters, that may terminate any services or communications, including but not limited to unsolicited advertisements, transmitted in violation of applicable law, without delivering them. DealerBuilt may immediately terminate Customer’s right to use the Services without liability of any kind in the event of a breach of the terms of Sections 6 or 7, including but not limited to any applicable laws.
e. Email Communication Compliance Requirements
i. To use the Service, Customer must comply with the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM), which means that each commercial e-mail sent using the Service must contain:
1. header information that is not false or misleading;
2. a valid physical postal address of the sender;
3. a clear and conspicuous identification that the message is an advertisement or solicitation;
4. a clear and conspicuous explanation of how the recipient can opt-out of future communications from the sender;
5. an opt-out mechanism that complies with applicable law, which must be honored within ten business days of receipt.
ii. Customer is responsible for complying with the content prohibitions as set forth in CAN-SPAM.
f. SMS and Text Message Communication Compliance Requirements:
i. Customer agrees to implement and follow industry guidelines when sending SMS or text messages. Specifically, Customer must comply with all of the applicable guidelines published by the CTIA, including but not limited to the CTIA Short Code Monitoring Handbook (Version 1.7 or later) and the CTIA Messaging Principles and Best Practices (2019 version or later.
ii. DealerBuilt does not allow Customer to use the Services to send SMS or text messages regarding:
1. credit repair programs, debt collection, debt consolidation, or debt reduction;
3. risk investment opportunities; or
4. third-party recruitment or job-seeking services.
g. Customer represents, warrants, and covenants that contact information will be collected from individuals who have provided prior express consent required by law or regulation (including, but not limited to the TCPA and Do Not Call List requirements).
8. Service Terms.
a. DealerBuilt may locate servers containing Software Products (“Servers”) on Customer’s premises (“Customer Facility”) solely to provide the Software Products to Customer, provided that the Servers remain under the day-to-day management and control of DealerBuilt. Customer is responsible for any damage to the Server while installed at the Customer Facility. Customer shall identify all Servers using the Software Products at Customer’s Facility. Customer agrees not to install Software Products on Customer servers without the written permission of DealerBuilt. Customer also agrees not to move or repurpose any Server without the written permission of DealerBuilt. Customer acknowledges and agrees that DealerBuilt has the right to use software license tracking tools to provide the Services and to monitor Customer’s compliance with the terms of this Agreement. Upon request of DealerBuilt, Customer will promptly identify the number of Servers located at each Customer Facility and the Software Products installed on such Servers or allow DealerBuilt to identify the information onsite. Customer shall not access, maintain, or otherwise use the Software Products in violation of this Agreement or any Software Publishers’ Software Licenses. Customer is responsible for all of its obligations under this Agreement regardless of the physical location of the Servers involved in providing the Service. Customer will be responsible to the Software Publisher for any unauthorized installation, use, copying, access, or distribution of the Software Products by Customer.
b. The Software Products are licensed on Customer Servers on a month-to-month basis under the applicable Software Publisher’s licensing programs (e.g., Microsoft SPLA). All Software Products licensed and provided by DealerBuilt are not perpetual licenses, and the Software Product licenses are not owned by the Customer. Only Customer Servers listed in this Agreement or that are pursuant to an applicable change order are covered by the terms of this Agreement. Software Publisher licensing does not extend to any other Customer Servers or devices that may be present on the Customer’s network. Customer’s Server must remain under the day-to-day management of DealerBuilt to maintain Customer’s licensing status under this Agreement. Any Software Publisher license on Customer Servers located at Customer’s onsite location shall be limited to the applicable Software Publisher licensing program (e.g., Microsoft Windows Server licensing only), and such Software Publisher licensing does not include licensing for any other products that may be present on Customer’s Server. Customer understands and agrees it will be responsible for all Software Publisher licensing after any suspension and/or termination date.
c. DealerBuilt requires a 36-month minimum term for monthly software support Services. Customer can choose which Software Product licenses it would like to purchase. If Customer desires to conduct a trial of a Software Product and the Software Publisher permits a trial, DealerBuilt will facilitate the trial at no charge. Use of the Licensed Product will be disabled at the end of the trial. If Customer desires to license the Software Product, it will be charged a one-time up-front fee, plus the monthly software maintenance fee would be increased by the appropriate application amount plus any applicable sales tax. DealerBuilt reserves the right, in its sole discretion, not to refund initial fees on orders canceled by Customer. DealerBuilt will use reasonable efforts to deliver the Software Product on or before the date specified in the relevant Work Order.
a. Customer Obligations. Customer shall maintain a minimum of One Million Dollars (US $1,000,000) in insurance coverage through its respective carriers. Such insurance must include, at a minimum, commercial general liability and first-party cyber liability.
b. DealerBuilt Obligations. DealerBuilt agrees to maintain during the Term, professional liability insurance, including errors and omissions coverage, with aggregate limits of at least One Million Dollars (US $1,000,000). Customer’s insurance shall be primary over DealerBuilt’s insurance. Customer agrees to waive and to require its insurers to waive any rights of subrogation or recovery as to DealerBuilt, its agents, officers, directors, and/or employees.
a. During the Term and for one (1) year thereafter, Customer agrees that neither it nor any of its affiliates or any of their representatives shall, directly or indirectly, for itself or on behalf of another person or entity solicit for employment or otherwise induce, influence, or encourage to terminate employment with, make any offer to, or employ or engage as an independent contractor any employee of DealerBuilt, or any of its affiliates with whom Customer had more than incidental contact, or who became known to Customer in connection with the provision of the Services hereunder.
b. Nothing in this Section 10 shall be deemed to prohibit general solicitations through the media or by a search firm, in either case, that is not directed specifically to any covered employee(s) unless such solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this Section 10.
11. Pricing and Payment.
a. The pricing for the Services shall be as set forth in the applicable Work Order. Unless otherwise expressly set forth in the applicable Work Order, Customer shall pay DealerBuilt for its time spent according to its then-current list pricing. Rates are quoted and billed on an hourly basis. In addition, Customer shall pay DealerBuilt for all supplies and consumables, including cables and wires, which DealerBuilt utilizes in the performance of the Services and all applicable taxes, duties, and levies resulting from the Services and/or the supplies and consumables furnished by DealerBuilt, excluding the taxes based on DealerBuilt’s income.
b. Unless otherwise agreed in writing, payment for the Services is due upon receipt. Customer shall pay to DealerBuilt a late payment charge of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, on any unpaid amount for each calendar month or fraction thereof that any payment to DealerBuilt is in arrears. Customer agrees to pay all costs of collection, including court costs and reasonable attorney’s fees, incurred in the collection of any past due amount. Customer acknowledges that DealerBuilt may participate in and retain the benefit of vendor incentive plans, rebate programs, or other programs with, among others, its travel providers wherein DealerBuilt may receive benefits, such as frequent flier miles or other considerations. In addition, if Customer’s account becomes thirty (30) days past due for either up-front fees or monthly fees, DealerBuilt reserves the right to suspend Services and/or disable any or all access to the software and/or support services until payment is made.
c. Any pricing information, estimates, and all other proposed solutions included in this Agreement or the Work Order are based on DealerBuilt’s understanding and assumptions of the requirements and environment represented in the corresponding Work Order and on DealerBuilt being awarded the entire scope of the work being requested (collectively, the “Conditions”). In the event any of the Conditions are not accurate or if any Condition changes or is altered during the term of this Agreement, DealerBuilt shall have the right to terminate this Agreement and any related Work Order immediately upon notice to Customer.
a. DealerBuilt warrants that it will perform the Services in a workmanlike and professional manner. In the event of a breach of the foregoing warranty, Customer will notify DealerBuilt within thirty (30) days of notice of any breach of the foregoing warranty. In such case, DealerBuilt shall, as its sole and exclusive liability and Customer’s sole and exclusive remedy, promptly reperform the non-confirming Services.
b. CUSTOMER UNDERSTANDS THAT DEALERBUILT SHALL BEAR NO RESPONSIBILITY FOR THE PERFORMANCE, REPAIR, OR WARRANTY OF ANY THIRD-PARTY SOFTWARE, INCLUDING SOFTWARE PRODUCTS, OR HARDWARE PRODUCTS THAT MAY BE INCLUDED IN OR REFERRED TO IN THE WORK ORDER OR OTHERWISE FURNISHED AS PART OF THE SERVICES, AND CUSTOMER SHALL LOOK SOLELY TO SUCH THIRD PARTY FOR ALL REMEDIES AND SUPPORT WITH REGARD TO SUCH PRODUCTS OR SERVICES.
c. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF, CUSTOMER AND DO NOT EXTEND TO ANY THIRD PARTY. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN SECTION 12.a, THE SERVICES ARE PROVIDED AS-IS, AS-AVAILABLE, AND WITH ALL FAULTS. IN PARTICULAR, ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR OTHERWISE.
d. DEALERBUILT ASSUMES NO RESPONSIBILITY FOR AND CUSTOMER FULLY RELEASES DEALERBUILT FROM CLAIMS FOR APPLICATION FAILURES, DATA LOSS, OR OTHER HARM, INJURY OR DAMAGE SUFFERED AS A RESULT OF SOFTWARE BUGS OR INCOMPATIBILITIES, SPYWARE, HACKING, OR ANY OTHER UNAUTHORIZED SYSTEM ACCESS, SABOTAGE, OR INFORMATION THEFT.
13. Term. Unless sooner terminated in accordance with Section 13 or 14, the term of this Agreement (“Term”) shall commence on the Effective Date and shall continue until the later of: (a) the three-year anniversary of the Effective Date; or (b) the date on which all Work Orders entered into in connection with this Agreement have expired, been terminated in accordance with their terms, or the parties have completed performance of all of their obligations thereunder. For avoidance of doubt, upon the occurrence of such event, this Agreement shall be deemed expired or terminated without any further action of the parties.
a. by DealerBuilt at any time upon written notice if Customer fails to promptly pay in full to DealerBuilt any amounts, charges, or taxes required to be paid under this or any other agreement with DealerBuilt;
b. by either party at any time in the event of a material breach of the terms hereof by giving the other party ninety (90) days’ written notice stating the nature of the breach. This Agreement and all Work Orders shall then terminate if the breaching party shall fail to cure such material breach within ninety (90) days of receipt of written notice thereof. If the breach is of such a nature that it cannot reasonably be cured within such period, the breaching party shall commence to cure said breach within such period, then diligently prosecute such cure to completion;
c. by either party, at any time in the event the other party becomes insolvent or seeks protection, voluntarily or involuntarily, under bankruptcy or receivership law or executes a general assignment or similar document for the benefit of creditors;
d. by either party, for any reason or no reason, upon ninety (90) days’ written notice to the other party. Termination of this Agreement shall also constitute termination of all Work Orders. Termination does not relieve the Customer’s obligations to pay all accrued fees and amounts under the applicable Work Order, including any fees due throughout the remainder of the Initial Term (as defined in the Work Order) of the Work Order beyond the date of termination, or entitle Customer to any refund of prepaid fees. The termination of any Work Order in accordance with its terms shall not terminate this Agreement or any other Work Order.
15. Termination Charges. If any Work Order is terminated early for any reason other than by DealerBuilt in accordance with Section 14.d, then a termination charge shall be due from Customer to DealerBuilt on the termination date. The termination charge for each Service is as set forth on the applicable Work Order. Customer agrees that the damages that would be sustained by DealerBuilt from Customer’s early termination or default of a Work Order or this Agreement cannot readily be determined and that the termination charge constitutes “liquidated damages” and not a penalty. Customer waives any claim that such termination charge constitutes a penalty.
a. IN NO EVENT SHALL DEALERBUILT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PERFORMANCE OR BREACH THEREOF, OR ANY WARRANTY CLAIM, EVEN IF DEALERBUILT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DEALERBUILT’S TOTAL LIABILITY TO CUSTOMER HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE LESSER OF THE TOTAL OF THE AMOUNTS PAID TO DEALERBUILT HEREUNDER BY CUSTOMER OVER THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM OR TEN THOUSAND DOLLARS ($10,000).
b. IN NO EVENT SHALL DEALERBUILT BE LIABLE TO CUSTOMER FOR (a) ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF ANY ANTI-VIRUS SOFTWARE, ONLINE BACKUP SERVICE, BACK-UP SOFTWARE, FIREWALLS, OR OTHER SECURITY-RELATED SOFTWARE OR HARDWARE; (b) ANY DAMAGES RESULTING FROM OR RELATED TO ANY VULNERABILITY IN CUSTOMERS CUSTOMER SYSTEM, INCLUDING AS A RESULT OF HACKING BY A THIRD PARTY; (c) ANY LOSS OF, OR DAMAGE TO, ANY OF CUSTOMERS’ RECORDS OR DATA; OR (d) FAILURE OF AIR-CONDITIONING, HUMIDITY CONTROL, AND ELECTRICAL POWER; PROVIDED THIS SENTENCE SHALL NOT LIMIT DEALERBUILT’S LIABILITY TO THE EXTENT THAT SUCH FAILURE OR LOSS IS CAUSED BY AN ACT OR OMISSION OF DEALERBUILT THAT CONSTITUTES A BREACH BY DEALERBUILT OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OF ITS WARRANTIES UNDER SECTION 12.
c. NO ACTION WHATSOEVER ARISING OUT OF THE TRANSACTIONS OR SERVICES RELATED TO OR UNDER THIS AGREEMENT OR ANY WORK ORDER MAY BE INITIATED BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED, EXCEPT FOR PAYMENTS OWED HEREUNDER.
d. Information security threats are continually changing, with new vulnerabilities discovered on a daily basis. DealerBuilt makes no representations, warranties, guarantees, or legal certifications related to identification of such vulnerabilities. If provided as part of the Services, Customer acknowledges that vulnerability testing does not protect against personal or business loss. DealerBuilt offers no representation, warranties, guarantees, or legal certifications concerning the applications or systems it tests. DealerBuilt does not warrant that the resources tested are suitable to the task, free of other defects, fully compliant with any industry standards, or fully compatible with any operating system, hardware, or other application.
17. Indemnification. Customer will indemnify, hold harmless, and defend DealerBuilt, its affiliates, their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives from and against any and all losses and liabilities suffered, incurred by or asserted against DealerBuilt as a result of, or that arise out of, in connection with, or related to Content, the Customer Materials, the Customer System, Customer obligations under Sections 6 or 7, or any third-party claim resulting from the infringement of any third parties’ trade secret, trademark, copyright, or patent rights by Customer, its affiliates, and representatives. Without limiting the foregoing, Customer agrees to indemnify and hold DealerBuilt harmless against and from any and all liabilities and expenses (including without limitation reasonable attorney’s fees and any surcharges, penalties, damages, or other sums payable to a Software Publisher) which are incurred by DealerBuilt as the result of:
i. Any of the Excluded Claims defined below,
ii. Customer’s unauthorized manufacture, copying, reproduction, distribution, installation, access, modification, or use of any Software Products (including without limitation any piracy or counterfeiting of software or other infringement of or interference with the Software Publisher’s intellectual property rights),
iii. Customer’s failure to stop using, return, or comply with other instructions concerning the Software Products following notice from the Software Publisher or DealerBuilt that the Software Products in question may be the subject of an infringement claim,
v. Customer’s use, access, or modifications of any software that Customer requested that DealerBuilt use, access, or modify as part of the Services infringes any patent, copyright, trademark, trade secret, or other intellectual property right,
vi. Customer’s use, access, or modifications of any software that Customer uses, accesses, or modifies as part of the Services infringes upon any patent, copyright, trademark, trade secret, or other intellectual property right, or
vii. Any claim related to any Software Products licensing and/or any Software Products licensing compliance.
a. Customer agrees to pay any judgments or settlements based on any such claims related to its use of any Software Products.
b. DealerBuilt hereby agrees to indemnify, hold harmless, and defend Customer, its affiliates, and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives from and against any and all claims by a third party that the licensed use of the DealerBuilt Property infringes that third party’s trade secret, trademark, copyright, or patent rights. Notwithstanding the foregoing, DealerBuilt will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the DealerBuilt Property with any hardware, software, products, data, or other materials not provided by DealerBuilt, (ii) modification or alteration of the DealerBuilt Property by anyone other than DealerBuilt, (iii) use of the DealerBuilt Property in excess of the rights granted in this Agreement (iv) use of the DealerBuilt Property after written notice from DealerBuilt to cease use of the DealerBuilt Property, or (v) any specifications or other intellectual property provided by Customer (collectively, the “Excluded Claims”). The provisions of this paragraph state the sole and exclusive obligations and liability of DealerBuilt and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the DealerBuilt Property or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
c. The indemnified party shall: (i) give the indemnifying party prompt written notice of such claim; and (ii) allow the indemnifying party to control and fully cooperate with the indemnifying party (at the indemnifying party’s sole expense) in the defense and all related negotiations. The indemnifying party shall not enter into any stipulated judgment or settlement that purports to bind the indemnified party without the indemnified party’s express written authorization, which shall not be unreasonably withheld or delayed.
18. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from a Force Majeure Event. The party who has suffered or been so affected by a Force Majeure Event shall give notice to the other party within five (5) business days of the Force Majeure Event, and the impacted party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. Delays in delivery due to Force Majeure Events shall automatically extend the delivery date for a period equal to the duration of such events, and any warranty period affected by a Force Majeure Event shall likewise be extended for a period equal to the duration of such event. A Force Majeure Event, however, shall not apply to or extend Customer’s obligation to pay for the Services.
19. Relationship of the Parties. The relationship created hereunder between the Parties shall be solely that of independent contractors. No representations or assertions shall be made, or actions taken that could imply or establish any agency, fiduciary, joint venture, partnership, employment, or other relationship between the Parties with respect to the subject matter of this Agreement. DealerBuilt reserves the right to subcontract with individuals and businesses.
a. Notices. All notices, demands, or other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person, by e-mail, by United States mail, certified or registered with return receipt requested, or by a nationally recognized overnight courier service, or otherwise actually delivered:
If to the Customer:
If to DealerBuilt:
Attn: Michael Wilson, CFO
1225 S Main St, Suite 201
Grapevine, Texas 76051
or at such other address as may have been furnished by such person in writing to the other Parties. Any such notice, demand, or communication shall be deemed given on the date given, if delivered in person, e-mailed, or faxed, or otherwise actually delivered, on the date received, if given by registered or certified mail, return receipt requested or given by overnight delivery service, or three (3) days after the date mailed if otherwise given by first class mail, postage prepaid.
b. Return of Data and Records. Upon request by Customer made within sixty (60) days after the termination or expiration of this Agreement, DealerBuilt will make Customer data available to Customer for export or download for a period of thirty (30) days. After such sixty (60) day period, DealerBuilt shall have no obligation to maintain or provide any Customer data and will thereafter delete or destroy all copies of the data in DealerBuilt’s systems or otherwise in DealerBuilt’s possession or control, unless legally prohibited. DealerBuilt may retain one archival copy of such materials as may be necessary for it to manage its ongoing obligations hereunder.
c. Entire Agreement. This Agreement, including the Work Orders, constitutes the entire understanding of the Parties, and there are no further or other agreements or understandings, written or oral, in effect between the Parties relating to the subject matter hereof. In particular, the parties agree that none of the terms, provisions, or conditions of any invoice, acknowledgment, or other business form or any click-wrap, web-wrap, and similar terms that either party may use in connection with this Agreement apply to or add to any rights, duties or obligations of the parties under (and may not otherwise be read to modify) this Agreement, regardless of any failure of the other party to object to any terms, provisions or conditions. Each party hereby rejects any additional or conflicting terms, provisions, or conditions on any of the other party’s invoice, acknowledgment, or other business form.
d. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile or .PDF transmission shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or .PDF shall be deemed to be their original signatures for all purposes.
e. Interpretation. This Agreement shall not be construed against any party, and no consideration shall be given or presumption made on the basis of which party drafted this Agreement, or any particular provision hereof, or supplied the form of Agreement.
f. Governing Law; Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, exclusive, however, of such State’s rules respecting the choice of law. The parties hereby agree that any suit, action, or proceeding arising out of, or based upon, any claim arising under or relating to this Agreement shall be instituted in the courts of the State of Texas sitting in the City of Grapevine, Texas and/or the United States District Court for the District of Northern Texas, and irrevocably agree that all actions or proceedings arising under or relating to this Agreement, or any agreement or instrument executed hereunder, shall be litigated in such courts, and each party hereby waives any objection to the personal or subject matter jurisdiction of such courts or to the laying of venue of such suit, action, or proceeding therein.
g. Severability. If any provision of this Agreement is declared invalid by any tribunal, then such provision shall be deemed automatically modified to conform to the requirements for validity as declared at such time, and as so modified, shall be deemed a provision of this Agreement as though originally included herein. If the provision invalidated is of such a nature that it cannot be so modified, the provision shall be deemed deleted from this Agreement as though the provision had never been included herein. In either case, the remaining provisions of this Agreement shall remain in effect.
h. Successors and Assigns. This Agreement and all provisions hereof shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the parties hereto, provided that this Agreement may not be assigned by any party without the prior written consent of the other party hereto except that this Agreement may be assigned by either party, without consent, to any of its affiliates or to any person acquiring a material portion of the assets, business or securities of such party, whether by merger, consolidation, sale of assets or securities, or otherwise.
i. Modification; Waiver. Except as otherwise specifically set forth herein, this Agreement may not be modified, terminated, rescinded, discharged, or canceled, nor may any provision be waived without the prior written consent of the party against whom such modification, termination, rescission, discharge, cancellation, or waiver is or may be asserted. No delay or omission by any party to exercise any right or power shall impair any such right or power or be construed to be a waiver thereof. A waiver of any provision of this Agreement on any occasion shall not constitute a waiver of such provision on any succeeding occasion.
j. Electronic Acceptance. This Agreement and associated Order Forms may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Customer’s acceptance will be deemed binding between the parties. Customer acknowledges and agrees it will not contest the validity or enforceability of this Agreement and associated Order Forms, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Computer-maintained records of a party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.