The customer submitting the VinSolutions Subscription Form through this website ("Customer") agrees that Customer's use of any products or services (the "Service" or "Services") offered by VinSolutions, Inc. ("VinSolutions") will be subject to these standard terms and conditions (this "Agreement").
1. Agreement and Services.
This Agreement governs Customer's use of all Services ordered from VinSolutions by Customer from time to time. These Services will be identified on invoices (each, an "Invoice") issued to Customer. Subject to Customer's payment of any applicable Fees (as defined below), VinSolutions will provide to Customer the Services identified in each Invoice. As further specified in the applicable Invoice, the Services may consist of professional services, such as, but not limited to, website development and hosting services, and/or access to online products and services (including any hardware or equipment provided by VinSolutions) that VinSolutions may make available to its customers from time to time via this website or any other digital platform (collectively, the "VinSolutions Site").
2. Access to VinSolutions Online Services.
2.1. Grant of Rights.
Subject to Customer's compliance with the terms of this Agreement, including, without limitation, the restrictions set forth in Section 2.2 below, VinSolutions grants to Customer and its Authorized Users a non-exclusive, non- transferable, limited license, during the Term of this Agreement, to access and use the Services on and through the VinSolutions Site, solely for the purpose of enhancing, managing, distributing, and displaying data and photos relating to motor vehicles Customer has in inventory or may acquire (collectively, "Inventory Data") via the Internet. Customer shall be responsible for compliance with, and any breach of, this Agreement by Customer's Authorized Users. For purposes of this Agreement, "Authorized Users" means (a) Customer's employees, officers, directors and/or contractors who access any Services on behalf of Customer, and (b) if Customer obtains website development and/or hosting services from VinSolutions, the end users of Customer's website(s).
2.2. Restrictions on Use.
Customer acknowledges and agrees that the Services are licensed for use at a single dealer location/rooftop, and Customer shall not use the Services for more than one dealer location or rooftop unless Customer enters into a separate agreement with VinSolutions. Notwithstanding anything to the contrary in this Agreement, Customer may not (i) provide, disclose, make available or allow access to, or permit use of any Service by any third party; (ii) modify, adapt, translate, or create derivative works based upon, the underlying software code of any Service; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any Service (including source code provided by any Third Party Licensor (as defined in Section 3.4, below), except to the extent Customer may be expressly permitted to do so under applicable law; (iv) use any Service to provide services to a third party; (v) use any Service or the services provided by any Third Party Licensor (as defined in Section 3.4, below) in a manner not authorized under this Agreement; or (vi) disclose any passwords or other security information related to the Services or any integration between the Services and any Third Party Licensor (as defined in Section 3.4, below) technology.
3. Data Rights.
3.1. Inventory Data.
Customer acknowledges that certain Services will require VinSolutions, its Affiliates (as defined in Section 9.1, below) and/or its service providers to access, store and manage Customer's Inventory Data. If Customer requests any such Service, Customer agrees that VinSolutions, its Affiliates and/or such service providers may access Customer's dealer management system for purposes of acquiring Inventory Data for use for their respective business purposes, which may include, without limitation, performing VIN decoding/enhancement, distributing Inventory Data, and preparing and distributing statistical analyses based on the Inventory Data. Customer alone is responsible for ensuring the accuracy and integrity of the Inventory Data. Customer must notify VinSolutions immediately of any problems with the Services or any errors in the Inventory Data. VinSolutions may be required by law, rule or regulation to make the following disclosure: NOTICE TO NORTH CAROLINA DEALERS: THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.
3.2. Performance/Transaction Data.
Customer may use the Services to manage leads, transactions, and other customer interactions in connection with the operation of its motor vehicle dealerships and to assess and enhance the performance of its marketing efforts (collectively, this data is referred to as the "Performance/Transaction Data"). Customer hereby grants to VinSolutions and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Performance/Transaction Data in any manner or medium, now known or hereafter developed, for VinSolutions' and its Affiliates' business purposes, and (ii) to prepare statistical analyses based on such Performance/Transaction Data ("Statistical Data"), which VinSolutions and its Affiliates may use to improve their services and may combine with other similar data from other customers and disseminate and otherwise use in aggregate form.
3.3. Proprietary Rights in Customer Data.
Subject to the licenses granted pursuant to Sections 3.1 and 3.2, above, as between the Customer and VinSolutions, Customer will own and retain all right, title and interest in and to all Inventory Data and Performance/Transaction Data (collectively, "Customer Data") provided or made available to VinSolutions, or otherwise collected or received by VinSolutions, in connection with Customer's use of the Services.
3.4. Third Party Licensor Rights.
For purposes of this Agreement, “Third Party Licensor” means a Third Party that has granted VinSolutions certain rights in connection with operation of, or integration with, the Services (e.g., dealership management system integration rights). Customer acknowledges that Services provided under this Agreement may include access to products that contain program code owned by Third Party Licensors. A Third Party Licensor may enforce this Agreement as a third party beneficiary solely with respect to use of any such Third Party Licensor’s technology; and neither Customer nor VinSolutions may modify or terminate any of Customer’s obligations in a way that would impact the rights of any such Third Party Licensor adversely.
3.5. Data Privacy and Information Security.
Each party will comply with all applicable legal obligations relating to privacy, security, integrity, and confidentiality of data collected from Customer, except for aggregated data that does not enable identification of the Customer’s individual retail customers and any other extracted data ("Customer Information"), which obligations may include the Gramm-Leach-Bliley Act and its implementing regulations ("GLBA''), the Personal Information Protection and Electronic Documents Act of Canada ("PIPEDA"), the laws of any state of the United States, and the laws of any province of Canada. Each party will, at a minimum, implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to: (a) ensure against any anticipated threats or hazards to the security or integrity of the Customer Information; and (b) protect against unauthorized access to or use of the Customer Information that could result in substantial harm or inconvenience to the Consumer or the individual who is the subject of Customer Information. Each party may disclose Customer Information, when required, pursuant to any federal or state law or regulation or rules or regulations of any governmental agency. These provisions shall apply during the term and after the termination of the Agreement.
4. Term; Termination.
The term of this Agreement will commence as of the date on which Customer assents to this Agreement by clicking the "I Agree" button on the VinSolutions Site and will remain in effect unless and until terminated as set forth below ("Term").
4.2. Termination for Cause.
VinSolutions may terminate this Agreement and/or cancel any Service(s) ordered under an Invoice at any time in the event of a material breach by Customer that remains uncured for a period of five (5) days following Customer's receipt of written notice of such breach from VinSolutions. Customer may terminate this Agreement at any time in the event of a material breach of the terms of this Agreement by VinSolutions that remains uncured for a period of thirty (30) days following VinSolutions' receipt of written notice of such breach from Customer.
4.3. Termination for Convenience.
Without limiting Section 4.2, above, either party may terminate this Agreement and/or cancel any Service(s) at any time, with or without cause, upon thirty (30) days' prior written notice to the other party. For avoidance of doubt, the cancellation of any Service will not terminate this Agreement nor cancel any other Service unless expressly stated in the applicable notice of termination or cancellation.
4.4. Effects of Termination.
Upon expiration or termination of this Agreement or any Order Schedule, (i) Customer's right to use the Services will immediately terminate, and (ii) all unpaid Fees outstanding from Customer will become immediately due and payable. Sections 2.2, 3, 4.4, 6, 7, 8, 9, 10, 11, 12 and 14 will survive any termination of this Agreement.
5. Fees; Payment.
Customer will pay VinSolutions the fees specified in each Invoice ("Fees"). Payments are due monthly in advance. If Fees are to be paid for by credit card, VinSolutions may charge the credit card as of the first business day of the first month after Customer requests the corresponding Services, and on the first business day of each subsequent month thereafter, unless Customer cancels the applicable Service in accordance with Section 4.3, above. If Customer is to be invoiced for payment, Customer will be invoiced for all Services monthly, in advance. All amounts paid by Customer pursuant to this Agreement are non-refundable. Late payments may bear interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, if lower. If Customer fails to make payment when due, Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by VinSolutions in collecting such amounts. Customer will be responsible for and will pay all Taxes that are imposed on the Fees paid or Services provided hereunder. “Taxes” means any direct or indirect federal, state, and/or local sales, use, excise, withholding, stamp or similar taxes and any duties, tariffs, levies and other similar governmental assessments or charges, but excluding income tax assessed against the actual or potential income of VinSolutionsIf Customer cancels any Service that was priced by VinSolutions as part of a bundle of Services, but does not cancel all of such Services, VinSolutions may adjust the Fees for the remaining Services. By accessing and/or using any Service after such adjustment, Customer agrees to pay the adjusted Fees for such Service.
5.2. Overage Charges.
In addition to regular monthly service Fees, Customer may be subject to overcharge charges in connection with usage of Customer's call recording and tracking, MMS, text messaging, or cellular data plans in connection with Customer's use of the Services under this Agreement. If Customer purchases one of these Services, the monthly usage limits will be set by the product package in effect at the time of purchase. If Customer exceeds the set limit of the product package, Customer will automatically be enrolled in the next highest product package for the month in which the overage occurs. All fees associated with the next highest product package will be applied as overage fees for that particular month and Customer will be obligated to pay such amount. Overage charges will be applied on a month-to-month basis and will not automatically enroll Customer in any level of product package beyond the month in which the overage charges were incurred. By purchasing any product package with a set limit of monthly usage, Customer consents to being temporarily enrolled in the next highest product package in order to pay for any overage charges that occur for any given month.
6. Representations and Warranties.
6.1. Customer Warranties.
Customer represents and warrants that (i) it is a legal entity duly organized, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it has all rights necessary to provide the Customer Data and any other materials (including any trademarks, service marks, logos, photographs, images, graphics, audio, video, or other creative materials (collectively, "Customer Materials")) provided or made available by Customer, and that such Customer Data and Customer Materials do not and will not infringe any rights of any third party, including, but not limited to, any contractual rights, copyright, trademark or trade secret rights or any right of privacy or publicity, (iv) Customer's use of the Services will comply with all applicable laws, rules and regulations, including, without limitation, any privacy laws; and (v) to the extent Customer purchases website hosting services from VinSolutions, Customer will provide VinSolutions with a written privacy statement to post on such website that complies with applicable law and that contains any terms that VinSolutions may, from time to time, provide to Customer for inclusion in such privacy statement.
VINSOLUTIONS AND ANY THIRD PARTY LICENSOR MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND VINSOLUTIONS AND ANY THIRD PARTY LICENSOR MAKE NO WARRANTIES THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE OR RELIABLE RESULTS; OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE.
Customer will indemnify, defend and hold harmless VinSolutions, its Affiliates, successors and assigns, and all of their respective officers, directors, employees and agents from and against any and all claims, losses, demands, causes of action, debts or liabilities, including reasonable attorneys' fees, arising out of a third-party claim resulting from (i) any breach or alleged breach of Customer's obligations, representations or warranties under this Agreement, (ii) Customer's use of the Services, or (iii) any claim that any Customer trademarks, service marks, trade names, logos or other content or materials furnished by Customer for use in connection with the Services, including, without limitation, any Customer Data and any Customer Materials (including, if Customer obtains any website development and hosting services from VinSolutions, any content or advertising posted on such website by Customer's end users), but excluding any content provided by VinSolutions, (a) misappropriates any third party's confidential information, (b) violates any applicable law, rule or regulation, (c) libels any person or entity, or (d) otherwise violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any right of privacy or publicity.
8. Limitation of Liability.
IN NO EVENT WILL VINSOLUTIONS, ITS AFFILIATES, SUBSIDIARIES, OR ANY THIRD PARTY LICENSOR BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VINSOLUTIONS', ITS AFFILIATES AND ITS AND THEIR LICENSORS' TOTAL LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING THROUGH CUSTOMER FOR ANY CLAIM ARISING OUT OF VINSOLUTIONS' PERFORMANCE UNDER THIS AGREEMENT OR ITS PROVISION OF THE SERVICES HEREUNDER WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO VINSOLUTIONS WITH RESPECT TO THE SERVICE(S) OUT OF WHICH THE CLAIM ARISES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Proprietary Rights.
9.1. Rights in VinSolutions Online Services.
The Services constitute the intellectual property of and are owned by VinSolutions, its Affiliates and/or any Third Party Licensor, and VinSolutions, its Affiliates and/or any Third Party Licensor retain all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to the Services. The structure, organization and code of the Services are valuable trade secrets and Confidential Information of VinSolutions, its Affiliates and/or any Third Party Licensor. Any user name or password provided to or created by Customer for use in connection with the Services are Confidential Information of VinSolutions and may not be shared with any third party without the prior written authorization of VinSolutions. Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights in any Services and all rights not expressly granted are expressly reserved by VinSolutions, its Affiliates and/or any Third Party Licensor. Customer may not remove or authorize or permit its Authorized Users to remove or obscure any proprietary rights legends from the Services. Without limiting the generality of the foregoing, if Customer obtains website development and hosting services from VinSolutions, Customer acknowledges that VinSolutions owns all right, title, and interest in the code underlying any website it provides and in the design of such site, including any templates used in connection with such design ("Templates"). Customer is receiving only hosting services from VinSolutions with regard to the operation and display of such website solely during the Term and will not obtain any intellectual property rights from VinSolutions in connection with the operation and display of such website. Customer acknowledges that use of the Template is not exclusive to Customer, and that VinSolutions may operate websites for other customers using the same Templates. For purposes of this Agreement, "Affiliate" means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, VinSolutions, where "control" means the power to direct or cause the direction of the management and policies of such other entity, whether through the ownership of voting securities, by contract or otherwise.
VinSolutions, its Affiliates and/or its or their licensors own and retain all rights in any trademarks, service marks, trade names and logos, and all related products and service names, marks, and
slogans used by VinSolutions in connection with the Services, including, without limitation, VinSolutions, VinStickers, VinPower, VinManager, VinLink, VinBuddy, VinCamera, VinDecoder, VinBrochures, FindAutos, MotoSnap, MotoBlast, MotoFactory and PoliceBook are VinSolutions and excluding only any Customer trademarks, service marks, trade names and logos provided by Customer for use in connection with any website hosting and development services provide by VinSolutions. Any other trademarks, service marks, trade names or logos contained within any Services are owned by their respective owners.
10.1. Definition of Confidential Information.
For purposes of this Agreement, "Confidential Information" means the terms and conditions of this Agreement, and all non-public information about VinSolutions' business or activities that is marked or designated by VinSolutions as "confidential" or "proprietary" at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information will include, without limitation all VinSolutions business (including pricing), financial, technical and other similar information.
10.2. Use of Confidential Information.
Customer agrees that during the Agreement Term and for three (3) years thereafter: (i) it will not disclose to any third party any Confidential Information disclosed to it by VinSolutions except as expressly permitted in this Agreement; (ii) it will not use any Confidential Information disclosed to it by VinSolutions except as necessary to perform its obligations under this Agreement; and (iii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of VinSolutions in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, Customer may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to request confidential treatment or a protective order before such disclosure; and (b) on a "need-to-know" basis to its legal counsel, accountants, employees and agents who are obligated to maintain the confidentiality of such information. Customer agrees that it shall remain liable for the compliance by such persons with the terms of this Agreement. Upon termination or expiration of this Agreement, or at the request of VinSolutions, Customer shall (at its option) return the Confidential Information to VinSolutions, or destroy it and, upon VinSolutions' request, certify that it has taken such action.
Except as otherwise provided herein, any notice provided pursuant to this Agreement will be in writing, and will be sent by U.S. mail, postage prepaid, certified mail return receipt requested or by overnight courier addressed (if to Customer) to the address set forth on the Subscription Form or (if to VinSolutions) to VinSolutions, Inc., Attn: Vice President/General Manager, 6405 Metcalf Avenue, Cloverleaf Building #3, Suite 400, Overland Park, Kansas 66202 or to such other address as maybe provided by notice by the applicable party in accordance with this Section. Copies of notices to VinSolutions also will be sent to Cox Automotive, Inc., 6205 Peachtree Dunwoody Rd, Atlanta, GA 30328 Attn: Vice President and General Counsel. Notices will be effective upon receipt.
12. Governing Law/Venue.
This Agreement and performance hereunder will be governed by the laws of the State of Georgia, without regard to its conflicts of laws rules. The parties hereby agree that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement will be an appropriate federal or state court located in Fulton County, Georgia.
Customer may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights is void. VinSolutions may subcontract to any third party all or any part of the Services being provided by VinSolutions to Customer pursuant to this Agreement.
14. Changes to Agreement.
VinSolutions reserves the right to modify the terms of this Agreement from time to time and will post any such changes on the VinSolutions Site. VinSolutions will provide notice to Customer of any such modification, which notice may appear on the VinSolutions Site or be delivered via the Services. Customer agrees that Customer's use of any Services after notice of such modifications to this Agreement will constitute Customer's assent to any such modifications.
Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party. Nothing in this Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter, including, without limitation, the terms of any purchase order submitted by Customer to VinSolutions to procure Services hereunder. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. Except as otherwise set forth in Section 14, this Agreement may not be modified or altered except by written instrument duly executed by an authorized officer of each party, and any such other modification shall be null and void and of no legal effect. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.